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 CONTENTS
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INTRODUCTIONvii

LEARNING UNIT 1: Introduction to legal skills1

1.1 INTRODUCTION1
1.2 THE CONCEPT OF LAW 1
1.3 THE FUNCTION OF LAW 6
1.4 THE IMPORTANCE OF SKILLS 9
1.5 OUR APPROACH IN THE MODULE 12
1.6 CONCLUSION14

LEARNING UNIT 2: Study skills15

2.1 INTRODUCTION15
2.2 LEARNING AND STUDYING 16
2.2.1 Introduction16
2.2.2 The concept of studying 16
2.2.3 Learning as a core element of education 17
2.2.4 The study process 22
2.2.4.1 Introduction22
2.2.4.2 The exploration phase22
2.2.4.3 The fixation phase22
2.2.4.4 The testing phase23
2.2.5 The study environment 23
2.2.6 Motivation25
2.2.6.1 External motivation25
2.2.6.2 Internal motivation26
2.2.7 Other considerations 27
2.2.8 Time management 27
2.2.8.1 Prioritising28
2.2.8.2 Time planning29
2.2.9 Study groups 30
2.2.9.1 Why study groups?31
2.2.9.2 What makes groups work?31
2.2.9.3 Benefits of a study group32
2.2.9.4 Disadvantages of study groups32
2.2.9.5 Some ways in which a group can function32
2.2.10 Note making 33
2.2.10.1 The rationale for making notes33
2.2.10.2 Note-making styles34
2.2.11 Study methods 35
2.2.11.1 Relationship between method and approach to learning35
2.2.11.2 Mnemonics/memory strategies35
2.2.12 Summaries36
2.2.12.1 What is a summary?36
2.2.12.2 Tips on making good summaries37
2.2.13 Dealing with assessment/testing 38
2.2.13.1 Writing assignments38
2.2.13.2 Preparing for examinations40

SCL150/1/2020–2022iii
 2.2.13.3 Writing exams40
2.2.14 Conclusion41

LEARNING UNIT 3: Reading legal texts42

3.1 INTRODUCTION42
3.2 WHEN ARE YOU AN EFFECTIVE READER? 42
3.3 HOW TO READ AND UNDERSTAND AN ACT OF PARLIAMENT 43
3.3.1 Finding an Act of Parliament 43
3.3.2 Reading an Act of Parliament 44
3.4 HOW TO READ A COURT CASE 46
3.4.1 Finding a court case 46
3.4.2 How to read a court case 47
3.4.2.1 Case name47
3.4.2.2 Year and volume49
3.4.2.3 Series of law reports49
3.4.2.4 The page where the report starts50
3.4.2.5 The court where the case was decided50
3.4.3 The structure of a reported decision 52
3.5 LATIN TERMS 60
3.6 READING AND UNDERSTANDING A JOURNAL ARTICLE 63
3.7 CONCLUSION63

LEARNING UNIT 4: Communication and Litigation Skills65

4.1 INTRODUCTION65
4.2 NON-VERBAL COMMUNICATION 66
4.2.1 What is non-verbal communication? 66
4.2.2 The importance of non-verbal communication for a lawyer 66
4.2.3 Examples of non-verbal communication 66
4.3 INTERVIEWING69
4.3.1 Why interviewing skills? 69
4.3.2 Preparing for interviews 70
4.3.3 The actual interview 70
4.4 LISTENING SKILLS 71
4.4.1 Why listening skills? 71
4.4.2 What is a good listener? 72
4.4.3 Ways of listening 73
4.5 LOGIC AND LEGAL ARGUMENTS 74
4.5.1 What is logic? 75
4.6 LITIGATION AND ADVOCATING IN A COURT OF LAW 82
4.6.1 Important points to consider 82
4.7 CONCLUSION87

LEARNING UNIT 5: Legal actors88

5.1 INTRODUCTION88
5.2 THE SOUTH AFRICAN LEGAL SYSTEM 89
5.2.1 The ordinary member of society, citizen or client 90
5.2.2 Legal practitioners as legal actors 92
5.3 CONCLUSION100

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LEARNING UNIT 6: Numeric skills101

6.1 INTRODUCTION101
6.2 WHAT IS NUMERACY? 102
6.3 WHY LEGAL PRACTITIONERS OR LAWYERS NEED NUMERACY
SKILLS103
6.4 ADDITION AND SUBTRACTION OF NUMBERS 104
6.5 MULTIPLICATION AND DIVISION 106
6.6 FRACTIONS, DECIMALS AND PERCENTAGES 107
6.6.1 Fractions107
6.6.2 Decimals108
6.6.3 Percentages108
6.7 POCKET CALCULATORS 110
6.8 APPORTIONMENT111
6.9 RATE OF EXCHANGE 112
6.10 INTEREST113
6.11 TAX114
6.12 APPORTIONMENT OF DAMAGES 114
6.13 LEGAL PRACTITIONER’S (ATTORNEY’S) ACCOUNT 115
6.14 CONCLUSION118

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 INTRODUCTION

Dear Student

This module, Skills Course for Law Students (SCL1501), is intended for beginner
students in legal studies or the study of law. It also constitutes part of other law-related
programmes such as Social Work and Criminal Justice. In essence, it is argued that
law is, and should be, related to all disciplines of knowledge. Most probably this is
your first encounter with this field of study. However, we are well aware that it is
by no means your first encounter with the law. You will notice, in the first learning
unit of this study guide, that we make the important point that law is part of our
daily lives as we interact with one another as members of society or as humans.
However, we need to examine our environment, and ask problematic questions such
as, “whose law?” Obviously, it’s the law of the dominant class in that society. This
point, therefore, tells us that law is part of the political system, and can never be
separated from politics and other issues that characterise our society in various ways.

It is the main purpose of this module to introduce you to the concept of law and
thereby give you an overall background to the study of law. An overriding aspect
with regard to the objective and approach of the module is to help you to develop
important skills that we believe are crucial when you interact with the law from a
student point of view. We are mindful of the fact that this will also help you fit in
easily in the world of practice, especially as a candidate legal practitioner or simply
a new entrant to the profession.

The module (and this study guide obviously) is motivated by the realisation that the
main purpose for studying law is not merely to absorb information, and know the
rules and the procedures involved. At the end of the day, legal studies should also
enable the student to apply the law in a practical situation when required. Knowing
the law or about the law is one thing, but being able to use or apply it in real life
situations is quite another.

We truly hope that you will enjoy the course content, and that it will inspire you to
become a very successful student and, ultimately, an effective lawyer! Not only that,
but a critical and conscious lawyer laden with African values and an open mind-set
fit to confront the world and humanity at large with an Afro-centric eye. We repeat
that a successful student is not one who has managed to memorise legal facts or
theories, but rather one who is able to relate his/her knowledge of the law to his/
her own political and social consciousness, and therefore apply the knowledge from
a solid contextual viewpoint.

This module differs from other law modules in the sense that in it you are required
to DO most of the work yourself. We also give you tasks or activities that should
help you integrate the theoretical aspects of the law and its application. You should
thus not approach this module the same way you approach other more theoretical
subjects. The benefit of this module lies in the fact that you will be able to apply
everything that you learn. If you can DO that, we can almost guarantee that you
will have a successful career.

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INTRODUCTION

By way of background information, this module came about as a response to the

concerns raised by the legal profession in about 2005. The profession in that period,
before the Legal Practice Act 28 of 2014 came into effect, was represented by the
Law Society of South Africa and the General Bar Council (of Advocates). The
former was a body that regulated the work of attorneys in South Africa, while the
latter regulated the operation of advocates. When the Legal Practice Act came into
full effect in 2018, it changed the face, form and spirit of the legal profession. In
terms of structural changes, the Act has done away with separate regulatory bodies
and ensured that the legal profession is regulated by one regulatory body, the Legal
Practice Council. It is thus correct to say that the Legal Practice Council regulates
the legal profession or activities of all legal practitioners.

The concerns raised by the profession in 2005 centred on the unpreparedness of

LLB graduates for the world of legal practice. Key among these was the observation
that the graduates lacked the necessary skills to succeed in practice. According to the
profession, as was then represented by the Law Society and the General Bar Council,
graduating students had all the necessary theoretical knowledge, but could not apply it.

This module is one of the interventions made in order to respond to these problems
or challenges. It is thus the main purpose of this course to prepare you to study better,
and to develop your skills in law, so that you are better equipped for the challenges
that the legal practice will present to you in future.

At the end of this module you should be able to do the following:

1. Interrogate the concept of law, distinguish the law from other rules or social
norms, and explain its function and its impact on human lives.
2. Apply effective study skills and strategies (the study process, study environ-
ment, time management, note taking, summaries and study methods, writing
of assignments, preparing for and writing examinations).
3. Apply basic knowledge and applicable practical skills (e.g. numeric skills, ef-
fective communication and litigation skills, skills for reading and interpreting
primary legal texts such as statutes and cases) that relate to the daily challenges
in legal practice.
4. Appreciate Law as part of the society and look at it from an Afro-centric
perspective.

The four points mentioned above are called specific outcomes (and basically include
the knowledge and skills that you should demonstrate by the time you complete this
module). Our position is that you should, at the end of the module, reflect on this
journey in terms of the following learning points:

1. Law and society

1.1 Distinguish “law” from other rules or social norms.
1.2 Identify social situations and interactions to which law is applicable.
1.3 Show the impact or influence of colonialism on the law/s of the country over
time. (Therefore, critiquing the Roman–Dutch and English laws in the South
African legal system and its jurisprudence.)

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 Introduction

2. Effective study
2.1 Plan studies with the help of the right time management as shown in the
exercises in the study guide.
2.2 Complete assignments in the correct format.
2.3 Prepare early for the examinations.
2.4 Use conducive study environments.
2.5 Choose and analyse study methods according to the activities in the study
guide and in the assignments.
2.6 Change the general learning approach from memory recall/memorisation to
pragmatic critical reflection or praxis.
•• It needs to be noted that discipline and time management are central to
this learning outcome.

3. Numeric skills in legal contexts

3.1 Solve numeric problems in the context of legal practice as a business.
3.2 Answer questions and complete activities in the study guide after court ob-
servations using appropriate communication and litigation skills.
3.3 Analyse legal texts effectively and distinguish them from other (non-legal)
texts.

4. Law as a social contract

4.1 Understand that law is created by members of society, by social contract, to
maintain peace and order.
4.2 Understand that the law is influenced by values of those in society who have
power (i.e., the elite).
4.3 Analyse or interpret law from an African point of view.

The learning points covered in this module should broadly help you acquire knowledge
and certain practical skills necessary for the LLB programme. Beyond the LLB
degree, the module should benefit you a great deal in terms of adapting to any legal
environment from the perspective of the South African legal system.

Skills Course for Law Students (SCL1501) comprises six learning units. You should
organise your available time for study in such a way that these six learning units can
be completed in one semester. A semester is a study period that takes more or less half
an academic year. Thus, you will be taking this module either in the period January
to June or July to December. If you register early, a semester comprises approximately
16 weeks of study time. We urge you to spend three weeks on each learning unit, and
the rest of the semester on revision and preparation for the examination.

However, we need to pause and take note of the fact that there could be factors,
mostly technical or systemic, that may cause delays in the student registration process.
This reality might affect the amount of time available to you in a semester.

This study guide comprises the following learning units:

•• Learning unit 1: Introduction to Legal Skills

Before discussing legal skills, it is logical to examine the concept of law. In this
learning unit we introduce the concept of law and distinguish law from other
rules or social norms. The centrality of law to any social order is noteworthy.
The political, social and economic order, including corruption, depend on the

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INTRODUCTION

law. We also highlight the importance of skills or application to legal studies. It

is in this context that law or the study of law is seen as a praxis. This should thus
be considered as the approach that we embrace in this module.
•• Learning unit 2: Study Skills
In this learning unit we discuss how to study effectively, to help you become
a competent student. Our point of departure is the realisation that, like all other
students, law students need effective study skills in order to excel in their work.
An important point is made that the idea of effective study methods is relative.
What might work for one might not really work for another.
•• Learning unit 3: Reading Legal Texts
This learning unit and the ability to source relevant reference materials go hand
in hand. Thus, as soon as you know how to find legislation or court cases, you
should also know how to read these legal texts. The various legal texts are different
from ordinary or non-legal texts out there, like your novels, newspapers and so on.
•• Learning unit 4: Communication and Litigation Skills
This is a comprehensive part of this module. The concept of “communication”
is discussed broadly to cover all forms and means of transferring messages or
information from one person to another. In this sense “communication” is not
limited verbal (written or oral) forms of sending or receiving messages. Im-
portantly, communication is not just one’s ability to use English or any other
language, for that matter. This section addresses non-verbal communication,
interviewing and consultation, group work, oral advocacy skills, as well as how
to set out arguments logically.
Learning unit 5: Legal Actors
This learning unit focuses on the various role players in the South African legal
system. The ordinary member of society plays a very important role. Other role
players include all kinds of legal practitioners and various relevant state func-
tionaries and institutions. The structural organisation of the legal profession has
been impacted by the Legal Practice Act 28 of 2014 when it was fully effected in
2018. In terms of the Act, the period 2015 to 2018 was designated for the Act’s
various provisions to be effected in a staggered fashion. The roles of various le-
gal actors, particularly the “attorneys” and “advocates” have been reconfigured.
Reference to legal practitioners in the way that they are cited in this learning unit
will possibly change when the relevant provisions of the Legal practice Act 28 of
2014 properly come into effect.
•• Learning unit 6: Numeracy Skills
In this learning unit we put on the pedestal, the important role that numeracy
or numeric skill plays in legal practice. This unit, therefore, also clears the mis-
conception that numeracy is not an essential element of the practice of law. We
highlight certain skills required to work with numbers. These include addition,
subtraction, multiplication and division, percentages, tax, fractions, apportion-
ment of damages and interest. Numeric skills are very important in any legal
practitioner’s work.

You should study all six learning units together with any other material that we
might send you during the semester. Such material may, for example, include tutorial
letters. All tutorial material must be studied for the examination. Remember that
the purpose of this module is not only to help you pass the examination, but also
to equip and prepare you for the world of practice that awaits you. As mentioned,
you will also receive tutorial letters during the course of the semester. These tutorial
letters form part of the study material for the examination. Further, note that all
tutorial material will also be made available electronically on the myUnisa system.

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 Introduction

Each learning unit has activities. In order to benefit from this module, you must
ensure that you do the activities according to the “instructions”. Every activity
contains feedback. However, providing feedback does not mean that we give you
the answers. Feedback is aimed at guiding you in completing the activities. You will
also receive feedback for all the assignments by way of tutorial letters during the
course of the semester.

We emphasise that you should not restrict yourself. We encourage you, as students,
to read widely as this will broaden your understanding of the issues at hand, or as
they are addressed in this study material.

There is no prescribed textbook for this module. However, and as we have stated
earlier, we urge you not to restrict yourself to this study guide, as we believe that
you should NOT be studying merely for the sake of passing the examinations or
indeed for the sake of merely acquiring knowledge. Please also note that not all
relevant information is included in this study guide. You should, therefore, refer
to other textbooks that you may find useful in the footnotes of each learning unit.
We particularly recommend the textbook, Introduction to law and legal skills in South
Africa1. It is very helpful in the way it addresses the various issues dealt with in this
study guide or module.

We also emphasise that this module is very closely associated with other beginner
modules in the LLB programme, such as Introduction to Law (ILW 1501). Remember
that knowledge or study of law cannot, and should not, be compartmentalised. We
should, therefore, do away with the “silo-approach” to learning. You should attempt
to link the information from various modules that you study as much as possible.

It is very exciting to study law, but you will soon discover that it is not that simple.
Do not hesitate to consult your lecturers, whose particulars appear in Tutorial Letter
101, should you experience any problems with the work.

We hope you will enjoy this module!

David Letsoalo
Department of Jurisprudence
College of Law, Unisa
June 2019

1 Humby T, Kotze LJ, Du Plessis A, Du Plessis W, Naude JB, Freedman W, Mahler-Coetzee J, Bronk-
horst C, Bellengere A and Swanepoel N. Introduction to law and legal skills in South Africa (Oxford
University Press Cape Town 2012).

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 LEARNING UNIT 1 LEARNING UNIT 1
1 Introduction to legal skills

1.1 INTRODUCTION
In this learning unit we provide an overview of what this module, Skills Course
for Law Students, entails. We start off by introducing the concept of law, and then
look at its purpose or function. As the name suggests, this module focuses on the
skills that law students definitely need to see themselves through their studies,
as well as to prepare themselves for a successful career in law or as lawyers. The
term “lawyers” includes attorneys, advocates, prosecutors, magistrates, judges, law
lecturers or academics, legal advisors, company secretaries and so on. Note that all
role players in the legal profession are now referred to as “legal practitioners” in
terms of the Legal Practice Act 28 of 2014. There will continue to be discourses or
references to “usual terms” in the sense of the Pre-Legal Practice Act 28 of 2014,
such as “advocate”, “attorney”, “counsel”, or even “senior counsel” or “Silk” . We,
therefore, urge you to be conscious of the new configuration of the legal structure
in terms of the Legal Practice Act as fully effected in 2018. We also highlight our
approach to this module, to help you deal with the tutorial matter, not only in this
learning unit, but also throughout the rest of the learning units.

Since there is no particular prescribed book for this module, we encourage you to
consult any other relevant material or textbooks that may give you a wider knowledge
of the various topics or sub-topics dealt with here. It is particularly helpful to consult
various textbooks referred to in the footnotes as well as any other relevant study
material that you may get from the university.

Outcomes
At the end of this unit you should be able to do the following:
1. Locate the concept of “law” as a key element of society.
2. Explain the importance or function of law and how the law differs
from other rules.
3. Explain praxis as the approach taken in the module.
4. Describe the importance of skills in the study of law.
5. Interpret the role of law in shaping society and approach South
African law from an Afro-centric perspective.

1.2 THE CONCEPT OF LAW

As we have just stated, this module is concerned with the teaching of skills that
are important in the development of legal practitioners. We particularly focus on
teaching you the skills that will surely be invaluable to you as a law student. These
skills, you will later discover, will be particularly useful when you enter the profession.
It is, therefore, the aim of this study guide to give you an overall background of the

SCL1501/11


law, especially the South African legal system. However, knowledge of the law is
meaningless without the skills required to function effectively in the legal system.
This should explain why it is the main focus of this module to help you develop
such skills, which are essential for you as a law student. These skills will also become
invaluable to you later, when you enter the legal practice. In this context, certain
concepts are thus crucial to this module: law, skills and Afro-centric values.

The point of departure for every law student is an understanding of the concept of
“law”. One of the foremost questions faced by any law student is: “What is law?” It
is not easy to answer this question as the concept of “law” is understood differently
by different people in various situations. We may immediately think of, among other
things, religious or church laws, laws in the military, laws of nature, laws of the
game (golf, football, tennis, boxing), scientific laws and the law of the country. In
all these laws, there seems to be a sense of control, order or a system of rules. Let
us now look at the following definition of the law:
Law in the strict sense is the only body of rules governing human conduct that
is recognised by the state and if necessary, enforced.2

A closer look at this definition shows a number of important points or characteristics:

•• law is a system of rules (however, not all systems of rules are law);
•• the rules are recognised by the state (not religion, science, or sporting codes);
•• the rules are meant to control human actions (in relation to society, things,
the environment);
•• he rules are enforceable.

This brief assessment or dissection of the definition has helped us to determine what
the main focus of law students should be. Therefore, our real concern when studying
law is the rules or system of rules devised by the state, which are meant to control
the actions of human beings and may be enforced or bind the whole community.
It is in this sense that laws create duties (obligations) and rights. When citizens
perform certain acts (i.e. do certain things) as required by the state, such as carrying
out certain duties like paying taxes, observing rules of the road and so on; or when
they respect the rights of others, then we can safely say that we have a system of
law and order. This is known as legal order (not any other order!). At this stage, we
must point out that this is not the only way in which the concept of “law” may be
defined. The reality is that this concept is not easy to define as it entails different
views of rules, norms and what ought to be. For instance, other approaches to what
the “law” is, regard aspects such as values, sense of community and ubuntu quite
highly. Indeed, Kleyn and Viljoen3 hold the view that “no single correct answer has
been found” to answer the question, “What is law?”

It then follows that we should appreciate the important point that although law is
essentially rules, not all rules are law. For rules to become law, they should fulfil
ALL three characteristics, namely, (i) recognition by the state, (ii) control of human
actions, and (iii) enforceability.

We now discuss the different characteristics of this definition to get a broader

understanding of this key concept of the module.

2 Hahlo HR & Khan E The South African legal system and its background ( Juta Cape Town 1973) 3.
3 Kleyn D & Viljoen F Beginner’s guide for law students ( Juta Cape Town 1995) 11. The authors discuss
various approaches to the definition of law on pp 11–23.

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 LEARNING UNIT 1:  Introduction to legal skills

Rules help us, as humans, to form societies so that we can control the way in which
we interact with one another and the things in our environment. It is through a
system of rules that, as we have just pointed out, we can create and keep order in
our societies, and, therefore, have a reliable sense of what is acceptable or not, what
is right or wrong and what is punishable, and so on. At least in this sense, human
beings may be said to differ from animals. Laws have become such an integral part
of our lives that we cannot even imagine ourselves living without them. Perhaps this
is the reason why, in modern societies, most opponents of particular governments or
regimes begin with the accusation that there is “no rule of law” in certain countries.
The impact of this line on the imagination of other humans is profound, as we
have taken into our sub-consciousness that a system of laws is essential for our safe
existence. We frown on this kind of situation (lawlessness) because we sense that
without rules or the law, there would be chaos and total disorder. The situation of
lawlessness is called “anarchy”.

At this point you should not just absorb the words we write here, or simply accept
our explanation uncritically. You need to apply your mind, challenge and question
this discourse. For instance, who develops the law? And what influences the people
who develop this law? What is their ideology or what are their values? What is their
view of life? It is important to ask these questions because, as we have just said, “rules
control the way in which we interact with one another”. Let’s look at this example:

A politician or lawmaker is influenced by the school of thought that says “South

Africa belongs to all who live in it, Black and White” (as in the Freedom Charter).
Unlike a Pan Africanist who believes in the logical expression that states that “Africa
is for Africans”, the one who upholds the Freedom Charter view will predictably be
influenced to craft things such as “We, the people of South Africa, Recognize the
injustices of our past…Believe that South Africa belongs to all who live in it” (as
in the Preamble of the Constitution of South Africa). This example should tell you
that law is not neutral, as it always carries the values of those who have the power.
Obviously, a Pan Africanist would not craft such a piece.

The above example should explain why the laws in the pre-1994 Apartheid South
Africa, reflected the views and values of the powerful political elite at the time,
namely, White racists who believed that their race was superior to the Africans.
Hence, the Apartheid State would be constituted by apartheid laws (which excluded
Blacks from economic and social opportunities, and entrenched White privilege).

Humby et al make the point that these rules (that regulate our interaction) are called
law because:
[L]aw provides the rules that guide human behaviour in society. The law pre-
scribes what is acceptable and not acceptable, what type of behaviour must be
rewarded and what type of behaviour must be punished to avoid future repeti-
tion. It also holds people accountable for harm they have done.4

It thus becomes clear that we cannot even begin to imagine human existence without
law! Law is, therefore, an essential aspect whenever humans interact with each other
in a society. Societies cannot exist without law. Almost all aspects of our lives are
impacted by law. You may think of your relationships with members of your family,

4 Humby T et al Introduction to law and legal skills in South Africa (Oxford University Press Cape Town
2012) 1. See, further, par 1.1 and 1.2 at pp 1–2 for various views on the “law”.

SCL1501/13


business partners, shopping and other commercial activities, relationships with

neighbours, strangers, employers, the environment, and so on.

Although law plays a role in most areas of our lives, you should not lose sight of the
point that we made at the beginning of this discussion, namely, that not all rules are
law. Indeed, there are many situations in our lives that are not controlled by the law.

To summarise, we may, therefore, assert that law is influenced by culture, ideologies

and values. Following this line, it becomes very important to question the various role
players, individuals, agents, organs, institutions and systems that create law. It goes
without saying, for instance, that Euro-centric or colonial laws will serve an agenda
that is opposite to the interests of African Law. We cannot seek to reclaim African
ways of doing things (African Renaissance) by using a Eurocentric legal framework.
Currently, in most university courses, there is discourse on curriculum transformation
or decolonisation. Mere words do not transform or decolonise. The use and/or
inclusion of words such as “Ubuntu” and “transformational constitutionalism” does
not equal decolonisation. Let’s assess the notion of “transformation constitutionalism”
briefly. A Eurocentric Constitution (like the 1996 Constitution) cannot be the right
vehicle to decolonise the law, let alone Africanise it. Perhaps, on a lighter note, it
cannot help us travel back to at least 1651! This reflects the situation of a dominant
narrative which necessitates a robust and unflinching debate, particularly from an
Afrocentric, decolonisation and Pan Africanist frame of mind. At the same time,
it should be expected that proponents of Eurocentric systems will criticise this
approach as being “limited”, “not global” and so on. An obvious point needs to
be made that African-ness, like Euro-centricity, is part of humanity or the globe.
However, white supremacy has basically manifested itself in such a way that it has
essentially, through dominance, excluded or erased the African influence from the
“global”. It may therefore be argued that reference to “global” basically amounts to
reference to White systems or Eurocentric views.

ACTIVITY 1.1
(a) Think of a situation or situations where there are rules that control human
beings in a specific context(s) without such rules being recognised by the
state. Discuss with members of your study group what makes those rules
fall short of being laws.
(b) Choose one area of your life (where you interact with other people or things)
that you believe is governed by law. Think about how the law impacts on
your life and those of others. Why is law necessary in this context? What do
you think will happen to you if you fail to act according to the law? Discuss
in your study group.
(c) Prepare a presentation in terms of which you explain what “law” is and how
it differs from rules in general.

1 Feedback
In doing the first part of this activity i.e. (a) you may, for instance, think of home
situations where a mother has instructed her children to do certain domestic chores
in a certain way. For the second part, i.e. (b), you may think of situations where
business transactions take place, such as building contracts, employment, sale or
hiring/leases. Your explanation of the term in the third part, i.e. (c), should recognise
the notion that there are various approaches or views regarding the definition of

4
 LEARNING UNIT 1:  Introduction to legal skills

the concept of “law”. Note that all laws are essentially rules, but not all rules are
law. Ensure that your presentation covers the difference between law and rules.

What is a state? We are raising this question because it is a crucial element, if not
a determinant, for rules to become law. Any set of rules that is not recognised by
the “state” will never qualify to be law. Many people, even the most certificated in
university departments or faculties, the judiciary and politics confuse the “state”,
“government” and “country”. Others use these terms almost interchangeably as if
they were synonyms. We are not going to define these terms because we know that
definitions are problematic. However, we offer an explanation that will hopefully
shed light on these terms.

In our view, “state” is a non-physical entity, an abstract notion or phenomenon created

by citizens through their deemed agreement (i.e. social contract) in terms of which they
entrust their existence, power and resources to this imagined authority. This abstract
authority is expected to control and take care of the citizens or nation in various
ways, including keeping law and order (protection) and providing other social and
economic services. In the modern state, these roles are carried out by a government
(natural persons) who categorise their functions into the judiciary, executive and
legislature. These categories are commonly referred to as “arms of government”. We
know that there are many people, including academics and politicians who refer to
these categories as “arms of the state”. Technically, we should strictly be talking of
“arms of government”. The question arises: since the state is not physical or is not
a human being, how does it execute these functions? The answer to this is that the
“state” needs physical beings or human beings to act on its behalf. In other words,
the state needs human proxies to carry out its functions. Such people, once assuming
that power or authority to act on behalf of the state, are essentially “organs of state”
or “state organs”. They are, therefore, a government. Governments may come and
go (temporary), while the state will always remain (permanent). Governments (i.e.
a group of people who have assumed the authority to run the affairs of the state),
may come in various forms: democracy (via elections), military dictatorships (via a
coup d’etat), monarchy (via royal blood) and so on. Strictly speaking, and technically,
we may say that it is a misnomer or incorrect to talk of “arms of state”. The idea of
“arms of the state” seems to have emanated from the position that says the actions
of the “government” of the day are imputed to the “state”.

Secondly, we need to highlight the point that, given the understanding that a
“state” is non-physical, and needs physical bodies in order to function, it should
be expected that anyone who can amass power can control the state. The notion
of “state capture”, for instance, has been given a strange perception, especially in
the last few years in South Africa. The state has always been an object of capture.
For instance, the capitalist cohort/business has captured almost all states in the 21st
century, religious groups used to wield state power in past centuries, and the masses
(proletariat) captured the state in socialist/communist states, and so on. For a socialist
or communist, therefore, it is a very good thing for the masses to take control of
the state power (state capture). In this sense, one may argue that “state capture” is
not necessarily a bad thing.

In South Africa, even during the post-1994 dispensation, a certain business clique
would have grabbed the power of the state. It is a state capture, even though it was
not labelled as such. It is not what you call something, but rather it is what it is that
matters. During the presidency of former President Jacob Zuma, there arose a loud

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discourse of “state capture” all over, particularly in the mass media spaces, which
made the phrase “state capture” spontaneously associated with the then President
and the Gupta family (which was proven to have had too many and massive business
deals with the state). These business deals were acquired through the control of the
people who were in government (state proxies). It is in this sense that this relationship
attracted a lot of attention and sensationalised the phrase “state capture”. However,
in our view, the Zuma-Gupta relationship is a clear illustration of the thin line
between “state” and “government”, and it also shows how vulnerable the state is as
anyone in government can influence or direct the affairs of the state according to
their ideological preferences.

ACTIVITY 1.2
Read the excerpt below and then reflect on what we have discussed regarding
“What is a state?”. Then attempt the questions that follow:

“State capture. What is a state?” (Jacob Zuma, 13 May 2016)

We don’t have economic power … . Those who are having economic power will run
you. They will run you. I’m not talking about state capture because that’s, heh-heh,
no: because I must help you, I must help you. Because that term is wrong. We don’t
understand what is a state. We talk about state capture, you don’t understand. Is
judiciary captured? Heeh? Is it captured? By who? Heeh! Is parliament captured?
Heeh? Hmn! What composes the state are three arms. It is the executive, it is the
judiciary, it is the legislature. That is a state. If you say state capture what do you
mean? Are all these captured? You are misleading people. You are talking about
small issues, you make them big issues.

•• Comment on Jacob Zuma’s understanding of the concept of “state”.

•• What is his idea and understanding of “state capture”? Do you agree with him?
•• What do you think Jacob Zuma wants to achieve by asking whether the judiciary,
executive and the legislature are captured?

2 Feedback
The remarks by Jacob Zuma indicate the confusion that many people have about
the difference between “state” and “government”. As discussed here, he falls in the
category of people who refer to “arms of state”, which in the strict sense should
be “arms of government”. He seems to believe that “state capture” arises only
after all three categories of the government (executive, judiciary and legislature)
are captured.

1.3 THE FUNCTION OF LAW

For one to understand and appreciate, the functions of law, one needs to think of, or
imagine, contexts where the law is absent. In the preceding section we described the
concept of law and discussed briefly how it (law) is essential to human existence. A
look at that description makes it clear that the law serves a very important function
or purpose.

6
 LEARNING UNIT 1:  Introduction to legal skills

Firstly, law creates and maintains peace and order in society by balancing the interests
of the individual and those of the larger community or the state. In South Africa,
today, the protection of citizens (and non-citizens) is controlled by the Constitution,5
which guarantees that their human rights will be protected against arbitrary violation
by the state and other individuals, groups and organisations that are more powerful
in various senses. Section 7 of the Constitution states:

This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines

the rights of all people in our country and affirms the democratic values of
human dignity, equality and freedom.
The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
The rights in the Bill of Rights are subject to the limitations contained or re-
ferred to in section 36, or elsewhere in the Bill.

We refer to this section of the Constitution because it makes it clear how a social
contract (in this instance, the Constitution), creates and maintains order among
human beings. We want to make it clear that the protection of the interests of various
individuals in the society is not only offered by the Constitution. There are various
laws that perform this function according to the specific areas of life that they are
meant to control. However, the Constitution does offer an underlying motive or
guidance regarding the various laws.

At this point we need to pause and engage critically in what most people in South
Africa rarely do, which is to honestly point out the pitfalls of the Constitution,
especially from the African perspective. There is this baseless view that presumes that
the Constitution is the “best thing” ever to have happened in the country, so much
so that it is believed that it can be used to transform societies, decolonise the law,
and even Africanise it. We are sure that you will encounter materials elsewhere that
advocate the so-called “transformative constitutionalism”. As we have already said
earlier, one may only decolonise and thus Africanise the law using an Afrocentric tool.
It does not make sense to suggest that Eurocentric documents like the Constitution
are the right tool to decolonise/Africanise the South Africa law.

It should now be evident that the members of society have a common government
to which, by social contract, they have entrusted the responsibility to protect them
and maintain peace and order. The nature of protection promised and offered mostly
depends on the circumstances, the type of dispute and the individuals involved in
the particular dispute. In this respect, the body of law called criminal law will, for
instance, apply when someone is found to have engaged in a conduct that disturbs
or offends peace and harmony in society. The person would be said to have done
something that is forbidden (crime). The state, through the courts, will charge and
try that person (prosecute) on behalf of the wider society or community. If that
individual is found to have broken the law, he or she will be punished according to
the law (this is what is called a criminal sanction). Such criminal sanctions include
imprisonment, a fine, correctional supervision, community service and so forth. A
criminal court takes charge of this process.

For example, the law forbids an individual to kill another person or to steal other
individuals’ belongings. If someone kills another person, he/she will be charged
with committing the crime of murder, and will be prosecuted through the courts;
or if he/she steals, he/she will be charged with committing the crime of theft. If

5 Constitution of the Republic of South Africa, 1996. Hereinafter referred to as the Constitution.

SCL1501/17


the courts find him/her to have, in terms of the law, committed these acts, he/she
will be punished or sanctioned.

The law also serves to maintain peace and order by controlling the relationship
between individual members of the community or citizens as legal subjects. This role
is performed by the body of law called civil law. Civil law protects the rights of an
individual from being tampered with (disturbed) by another member of the community.
It, therefore, regulates the relationship between individuals in the community. If an
individual is of the opinion that someone else has tampered with his/her rights as
a citizen, he/she may approach a court of law to institute a civil claim (i.e., to sue
that person) so that his/her rights may be restored. When someone is said to have
disturbed or harmed another person’s right, he/she is said to have committed delict. If,
through the civil courts of course, the said person is found to have committed delict,
the courts may grant an order to restore the rights of the offended party or person.
Where the criminal courts speak of guilt and punishment, the civil courts speak of
liability of the person in the wrong to the person who is wronged.

Illustration
For example, the law protects an individual’s right to his/her property. If a citi-
zen, Matome Motapola, happens to own potatoes, no one is allowed to disturb
him in his exercise of his right to enjoy them. If another citizen, Marula Malatji,
decides to go and damage the potatoes, Matome Motapola will be entitled to
approach a court of law and institute a claim against Marula Malatji. In other
words, he may sue Marula for that conduct (i.e., Marula’s action or behaviour
of disturbing Matome’s right to his potatoes). If the courts find that Marula
has committed a delict (damaging Motapola’s potatoes) the court will order
that he be held liable for that action and replace the potatoes or pay Motapola
a certain amount of money for the loss he has suffered.

To recap, it may, therefore, be said that the purpose of law is to create order and
stability in the various relationships that exist (i) among humans, and (ii) between
humans and things/the environment in a society. Without law, what results is
informally referred to as “the law of the jungle”, characterised by uncertainty,
unfairness, chaos, self-help, inequality and arbitrariness. In the above illustration,
the law is what ensures that there is no self-help or arbitrariness in the way Marula
and Motapola deal with any dispute between them.

ACTIVITY 1.3
Choose one area of social life (e.g. driving a car, becoming a parent, forming a
political party or participating in a public protest) and think about the laws that
govern that area of social life. You are encouraged to look for reports in the media
(newspapers, magazines, etc) relating to this area of social life.

Prepare an argument (for presentation to a group), on why it is necessary to have

law in that area of social life. Consider what it would be like if this area of social
life was not subject to any rules.

3 Feedback
Firstly, identify the area and state the relevant laws governing it. It would be help-
ful to state the name of the newspaper. Try to think of other rules (not law) that

8
 LEARNING UNIT 1:  Introduction to legal skills

apply to that area of life. List them. (For your guidance, such rules might include
religious or moral precepts, social norms, etc.)

ACTIVITY 1.4
For this ACTIVITY, you need to look for newspaper texts that involve a dispute
between various parties (the state, individuals, institutions, organisations, etc).
Identify and list the various parties to the dispute and state which areas of the
law apply to the dispute. Is there any role that a lawyer can or should play in this
dispute?

4 Feedback
Choose a text that deals with an issue or theme that really interests you. It will
help if you start off thinking in general terms: Does the issue in the newspaper
concern criminal or civil law? Then ask yourself which particular aspect of crime
or delict it is.

We hope the discussion in the above sections has shed some light on what law
is and highlighted the fact that not all rules are laws. We want to stress that this
discussion is just a simple illustration. Various parts of this topic or theme will be
discussed in greater detail in different modules in the LLB programme. Obviously, a
more comprehensive background or introduction to this theme is specifically offered
in other modules or programmes that deal with introduction to law. We advise that
you liberally refer to any other relevant source on this important theme. In the next
section we focus on the significance of developing various skills required in the life
of a law student and, ultimately, a lawyer.

1.4 THE IMPORTANCE OF SKILLS

Our point of departure is that skills should be integrated with knowledge, values
and consciousness. It, therefore, goes without saying that the application of skills
in African contexts should be informed by African values. We also recognise that
content is influenced by context, space and a particular value system. It should further
be understood that dealing with issues relating to law can be a challenging process.
As a law student, you are not only supposed to know the law or its content but are
also expected to have certain skills (i.e., the ability to do certain things or tasks well)
in order to succeed. Thus, over and above knowledge of the legal content, you need
to be able to apply that knowledge. For you to be in a position to apply the law, you
should also have the ability to function properly in the said environment or legal
system. An example of such skill is the ability to access the law (i.e., finding the law
and using it effectively). We mention this point particularly because many students
underestimate the importance of research skills.

For us, the foremost basic skill that a law student needs is the ability to study effectively.
This is quite straight forward. Study skills are crucial to all students, including you,
law students. These skills will ensure that you are able to access knowledge of the

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law, which you have to apply in your relevant lived situations. We refer to a comment
that illustrates what is demanded of lawyers:
Lawyers can be described as problem solvers, among other things… Attorneys,
advocates, judges, legal advisors and others in the field spend their time solv-
ing complex problems and making appropriate decisions. Being a lawyer means
that you must have the ability and skills to resolve different kinds of problems,
especially legal problems. To solve a problem effectively through the use of law,
a lawyer must be able to determine whether or not a specific problem is indeed
a problem that can be solved through legal means – a lawyer must therefore be
able to evaluate facts. Lawyers must also be able to categorise legal problems
and to find and analyse critically the legal fields and sources that apply to the
problem. In addition, they must have the ability to apply the relevant legal
rules and principles together with innovative and critical thinking to arrive at
a legally sound and appropriate solution to a problem.6

In our view, the above extract captures the essence of what a lawyer or legal practitioner
is expected to do in his/her daily work of practising law. The core to this is the lawyer’s
ability to study effectively. For example, you cannot solve complex legal problems
in the legal context if you cannot master the basics of effective study. Quite striking
in terms of the above text is that a lawyer should be able to “evaluate facts” and
“find and analyse critically the legal fields and sources”. These aspects underline
the importance of having the necessary tools and skills to engage with the material.
This is something that study skills aim to address.

However, the text does also point to the need for other skills. The ability to find the
applicable legal rule, the ability to construct and sustain sound arguments, and so
on, is suggested in the text. These aspects are included in a number of skills, which
include the skill to read legal texts, communication and litigation or oral advocacy
skills, writing skills as well as numeric skills. We deal with the various skills in the
different units of this module or study guide. These are the skills that you will need
not only as a law student, but throughout your career as a lawyer.

The importance of skills cannot be overemphasised. In a legal career, at least,

you cannot afford to be satisfied with merely knowing the law (e.g., various legal
concepts, common law, various sections of different statutes or Acts of parliament,
and various legal or court procedures). There is a strong need for law students, one
way or another, to be able to apply that knowledge. A lawyer is expected to apply
his/her knowledge in practical situations, such as researching the law, giving legal
advice, interviewing clients and witnesses, conducting a trial, litigating and drafting
legal documents. Application is a key aspect that defines the legal career. In the text
that we have just referred to above, the authors make it clear that lawyers “must have
the ability to apply the relevant legal rules and principles”.

The following is a well-known story from a famous village called Lephepane, which
is situated near Tzaneen in the Limpopo Province of South Africa:

Illustration
A few years ago, Kiba, a young man from Lephepane village near Tzaneen was
doing his grade 12 at the local Mokhapa High School. After passing his grade
12, he could not proceed with his post-school education or training because,
he realised his family struggled financially. His father was a subsistence farmer

6 Humby et al, Introduction to law and legal skills in South Africa 349.

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 LEARNING UNIT 1:  Introduction to legal skills

along the Mabele River, and mainly depended on government grants. He spent
a whole year in the community doing odd jobs just to survive and save a bit for
his college education. At the end of the year, his cousin, Motsulu, who worked
in Gauteng came back for the holidays during the so-called festive season.
He told Kiba about many job opportunities in Johannesburg, particularly for
truck drivers.
At the beginning of the next year, Kiba tried everything he could to raise
money to enable him to have driving lessons at the nearby Ramalema Driving
School at Tickeyline, near Lenyenye. He also urged his parents to sell the three
goats and eleven fowls that they had to make the needed money. In the second
week of his stay at the driving school, he felt confident that he could drive,
although he was not really good. He was impatient to get his licence. Almost
at the same time, he learnt that one of the instructors at the driving school had
a “connection” in the Traffic Licencing Department who could issue drivers’
licences without the learner driver being properly tested as required by the
law. Of course, the officer had to be bribed. Kiba saw this as a great chance
for him to get the licence quickly and go to Johannesburg to start working
as soon as possible. In short, he was not patient to develop his driving skills
properly at the driving school. He went home and pushed his parents again
to raise an extra two thousand rand to be offered the traffic officer as “cold
drink”. His parents had to go to a local “mashonisa” to borrow the money at
huge interest. After getting the money, Kiba returned to Ramalema to get the
deal done; and indeed after only three days, he had his “driver’s licence” in his
hands and went back home to relay the news. Everyone was excited about this
and had their expectations raised that Kiba was soon going to get a good job,
and thus help his family to improve their lives.
He immediately phoned his cousin (Motsulu) to say he was now ready to join
him in Johannesburg so that he could be helped in finding a company that
could employ him. After a week, Motsulu called him to say that there was a
firm that needed a truck driver immediately. Kiba told all members of his fam-
ily about this good news, and they were happy for him to go to Johannesburg.
It was on a Sunday when he boarded a taxi at the Tzaneng Mall taxi rank in
Tzaneen. He arrived at Alexander Township (near Johannesburg) that evening
to stay with his cousin for the night. In the early hours of Monday, they took
a taxi to Johannesburg. As soon as they arrived at Noord Street Taxi Rank in
Johannesburg, Motsulu accompanied Kiba to the premises of Triple X (Pty)
Ltd in Selby, which is an industrial area of Johannesburg.
Upon their arrival, they introduced themselves before Kiba was led to the office
for a short interview with the Manager, a certain Mr. Shocks, who was quite
satisfied with Kiba. He immediately led Kiba to one of the new trucks parked
in the yard and asked one of the foremen to give Kiba the keys for the new
truck so that he could drive a few blocks around the premises before taking
his first delivery to the nearby Fordsburg. He went back to his office as he was
busy with a lot of paperwork and sorting out orders and deliveries.
After a while, Mr. Shocks heard a lot of noise caused by the laughter and gig-
gling of workers in the yard. In no time the anxious-looking foreman entered
the office and screamed that he should rush outside to “see for yourself”. All
the workers were alarmed to see a sweating Kiba struggling to move the truck.
“Hey Kiba, what is wrong?” shouted Mr. Shocks. Upon seeing Mr. Shocks ap-
proaching, he stormed out of the truck cabin and bolted out of the yard leaving
his cousin, Motsulu behind.

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ACTIVITY 1.5
Read the above story again and answer the following:

1. What lesson (s) can we learn from the Lephepane Village story?
2. Look for aspects in the text that point to the need to have both knowledge/
certification and the competence/skill to apply the knowledge.
3. Mindful of what was discussed in the previous section about law, what legal
issues arise from the Lephepane Village story?

5 Feedback
We tell you this story so as to draw an analogy (a similarity) between the main
persona (Kiba) and a law student (not you?) who is mainly concerned with getting
the qualification or LLB without ensuring that he /she also develops the necessary
skills to enable him/her to apply his/her knowledge of the law. Just like Kiba in the
story, members of your family and your close friends, as well as the wider com-
munity will expect a lot from you when you finally obtain your law certificate or
qualification, be it the LLB or any other qualification. From our point of view, it is
not enough to get that qualification, but rather what is important is for you to be
able to use that qualification effectively when the situation demands it of you. You
might also find it extremely difficult to make good progress in your legal studies if
you do not acquire or develop certain skills that law students need.

Paulo Freire speaks of the notion of praxis (i.e., action and reflection).7 In terms
of this concept, every aspect of thinking or knowledge should be accompanied by
action or application. In this regard, there is a need for continuous thinking about
our practice, and also continuous application of what we know (i.e. the theory).
Taylor explains this notion (of praxis) thus:
Freire is clear in stating that praxis can be defined as the action and reflection
of people upon their world in order to transform it… What is actually required,
according to Freire, is active reflection and reflective action.8

This view of learning and teaching encourages the integration of theory and practice,
or the blending of knowledge and the relevant skills. For us, this idea is most relevant
to the study of law and its practice. We hold the view that it is quite futile to have
all the facts or knowledge if that knowledge cannot be applied when the practical
situation and surrounding circumstances require (or demand) it.

1.5 OUR APPROACH IN THE MODULE

The approach that we take in this module (and the study guide) is informed by the
view that mere knowledge, unless it is integrated with skills, is not useful at all. You
may add that it amounts to a waste of valuable time! We therefore advise that when
going through this study guide, you should not only memorise the concepts or theory
that we refer to. We take this view because we value the importance of skills in the
life of a student, more so the student of law. This view is sufficiently captured in
the following observation:

7 Freire P Pedagog y of the oppressed (Continuum New York 2000) 73. Freire states that “without reflection
(inquiry), apart from praxis, individuals cannot be truly human”.
8 Taylor PV The texts of Paulo Freire (Open University Press Buckingham 1993) 56.

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 LEARNING UNIT 1:  Introduction to legal skills

One of the constant dilemmas for law students during their studies is the need
to integrate theories learned in the classroom with real world situations, or the
practice of law as performed in law firms. There is therefore a need to integrate
theory with practice because this is where individuals go through a process of
experiencing, reflecting, thinking and acting.9

Usually, a skill is acquired when a student learns through experience. This learning
style is often regarded as “learning by doing”, rather than merely listening to others
or simply reading. In this kind of approach to learning, a student is expected to be
active and interact with others in the relevant environment. The approach promotes
self-awareness and expression with relevance and meaning. These aspects contribute
a great deal to the learners’ knowledge of the real world in which he/she lives.

The above quotation echoes the notion of praxis that we referred to briefly in the
preceding section. Later on, we introduce you to a number of skills in each learning
unit. We do not want you to be limited to what we mention or say in the study guide
as we might not include everything you need in order to master a particular aspect
or fully develop a particular skill under discussion. As a distance learner, you have to
work extra hard to ensure that you understand the various issues that are discussed
in each learning unit, because we believe that authentic or real learning cannot be
fully captured in a theoretical and written text alone.

Therefore, we urge you to ask yourself the following question whenever an issue,
concept or aspect of legal theory is introduced: Now that I know what it is, and how
it works, can I apply it when required? In other words, we encourage you always to
be mindful of this module as geared towards helping you to develop various legal
skills. You can achieve this if you always ensure that the knowledge of the subject
content is not the end result of your study. You should always strive to go beyond
knowledge and enter the area of application or skills.

For example, in the section on litigation skills or oral advocacy, we introduce a

number of legal concepts relating to the prosecution of a matter in a court of law.
As an illustration, let us take the concepts of opening address, examination-in-
chief, cross-examination and heads of argument. It is one thing to know and even
explain clearly what all these concepts are, but it is quite another for you to be able
to apply or use them in relevant situations. That is, the big issue would be whether
you can, for instance, also draft an opening address, conduct cross-examination,
draft prayers, pleadings, and so on. Similarly, in study skills, you may know exactly
what a summary is or what note taking is. However, the question remains: can you
summarise a text when needed to? Can you effectively take notes when required to?

This explains why we regularly provide you with tasks or activities related to the
subject matter in each learning unit. It will benefit you a lot if you ensure that you
do all the activities included in each learning unit. Draft when you have to; visit law
firms; talk to lawyers or legal practitioners and visit a court of law to observe how,
in a practical situation, certain procedural aspects are carried out or applied in real
life settings. In brief, you should integrate knowledge with the skills associated with
that knowledge. Although there is no prescribed book for the module, we do not
expect you to limit yourself to what is written in this study guide. We encourage you
to read any other source or sources that deal with various topics in this course. As we
stated earlier, please do make an effort to follow on the other textbooks that we refer

9 London M The Oxford handbook of lifelong learning (Oxford University Press New York 2011)
72.

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to in this study guide and reference in the footnotes, if you need more information
on a particular topic or theme.

1.6 CONCLUSION
This learning unit has dealt with the concept of “law” and its functions as the object
of legal study. It also gave us the opportunity to distinguish between “law” and
“rules”. The unit emphasised the “state” as a key characteristic of a social contract
and the law. Finally, it is important to recognise that legal practice is motivated by
one’s world view. In the context of South Africa today, it becomes crucial that our
legal studies be located in the African context, which makes the Afrocentric approach
to legal studies essential. We have also emphasised the importance of skills in the
study of law. In the next learning unit, we focus on study skills.

14
 LEARNING UNIT 2 LEARNING UNIT 2
2 Study skills

2.1 INTRODUCTION
“Education is a democratic learning experience whereas
banking education, indoctrination, and training undercut
the rational agency of the learner”.10

We are well aware that you have very serious ambitions to be a successful lawyer or
legal practitioner in future. Being successful will depend on how effective you are
in doing your work. That is why we should separate your simple wish to achieve
your dream from the reality that you first have to study towards that ultimate goal.
You also have to come to terms with the fact that you are no longer a secondary
school learner. Unlike secondary school, studying at university requires that you
take more responsibility for your studies. This is even more so because yours is a
distance learning university, which means that you have no one following you around
to force you to attend to your study programme. Indeed, a lot will depend on your
own motivation, passion, discipline and utter determination.

In this learning unit we look at ways through which you can make your study
effective. We do this by focusing on various activities and principles that have been
found to be useful in the enhancement of one’s study process and learning. Let us
immediately state that we are not, by any means, suggesting that the various ways of
studying will necessarily work for you. Although we guide you through the various
topics in this field, you must consult additional sources or relevant reference works
such as textbooks dealing with this topic. A good place to start is with the sources
referenced in the footnotes.

Outcomes
At the end of this unit you should be able to do the following:
1. Differentiate between various approaches to education and learning.
2. Adapt your learning style to your environment.
3. Work effectively in a study process.
4. Manage time effectively.
5. Form study groups and understand group work.
6. Make notes and summaries.
7. Prepare for and write assignments, tests and examinations.

10 Dale J and Hyslop-Margison EJ Paulo Freire: Teaching for freedom and transformation (Springer New
York 2010) 30.

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2.2 LEARNING AND STUDYING

2.2.1 Introduction
We cannot begin to discuss the study process unless we understand the concepts of
study and learning. Both these concepts are central to the whole business of studying
or the study process. It will, therefore, be of great benefit for you if you grasp these
concepts so that, going forward, you know what to do , what to embrace and what
to avoid when engaged in this process. For most students at university, particularly
at Unisa, being familiar with material aspects relating to studying will be quite handy
for several reasons. As a student at university, you are probably anxious about whether
or not you will cope with your studies. We are also aware t h at some of you may
have had a very long break from serious academic study and want to ‘‘come back’’
to this commitment, and others may have been students in other fields, presumably
having obtained qualifications in those respective areas, and would like to start a
career in law. In addition, studying law, you will find, is different from studying in
another field. We are mindful of these possibilities or factors.

It is factors such as these that make us want to have a discussion with you on study
skills. Therefore, it will be useful if you could take this topic seriously, and not labour
under the impression that since you have been to primary and secondary school
through to, perhaps, other post-school institutions, you KNOW how to study. We
are sure that you will gain from this learning unit. Not only for your examinations
in this module, but for the few years that lie ahead of you in your legal studies. No
one is born an effective student. Research (and our experience) has shown that there
are certain ways of doing things (e.g., academic skills) that, if seriously considered
and practised, almost become part of you and thus enhance your chances of being
successful as a student. We consider these elements as we go along in this learning unit.

2.2.2 The concept of studying

The concepts of studying and learning are easily confused. Although their meanings
are different, they are at the same time closely related. They are at the centre of any
meaningful study process. Barrat et al11 state the following: “In very simple terms,
when we talk about studying, we mean work that you usually do on your own and that
requires a lot of self-discipline”. They go on to say that studying requires that you use
various skills that include finding and reading textbooks and other texts, organising
your own notes, writing assignments and essays in an academically acceptable manner,
preparing for tests and exams and demonstrating your competence in that regard,
and so on. Put differently, studying is when you physically engage in the process of
organising the study materials (e.g. books, cases and Acts) and using them to acquire
knowledge for a certain purpose (e.g. writing assignments and passing exams).

Learning, on the other hand, is the impact of the process of studying on the student.
It is thus possible for one to collect all the necessary study materials and engage in
what one might tell oneself is studying, without learning anything from that process.
There is no way in which we can be satisfied with our activities if our study process or
methods do not make us learn. Everything we do from the moment we sit at the desk
(reading, underlining, making notes, etc) until we leave, should be focused on making
learning take place. It is important from the start for us to indicate that learning is an
active process. In other words, the student is expected to take responsibility for his/her

11 Barrat A, Barday AG, Iya P, Jonker J and Olivier M Skills for law students: Fresh perspectives, (Pearson
Education and Prentice Hall Cape Town 2008) 5.

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 LEARNING UNIT 2:  Study skills

own learning, get involved in the activities and thus interact with the text. Learning
cannot be regarded as “active” when the student simply absorbs the facts he/she is
presented with.

The student should realise that he/she belongs to the learning space as a human
being and not as a non-human entity with an empty brain, which needs to be filled
with unquestionable knowledge given by some teacher, lecturer or professor.

2.2.3 Learning as a core element of education

Learning should be perceived as a process, rather than an event. Being a process
suggests that it involves a lot of on-going activities. For a long time, learning has
been confused with the mere absorption of information or memorisation. As a
pupil you knew nothing, your brain was empty, and the teacher was expected to fill
it with facts/information. And such information had to be safely retained in your
brain until examination time when it would be regurgitated on to the examination
answer sheet (probably to be marked by the same teacher who originally stored that
information in your brain)! In this sense “[s]tudents are considered empty vessels
waiting to be filled with the type of knowledge required”.12 Paulo Freire refers to
this system of “learning” as banking education.13 The metaphor of a bank comes to
the fore because, as we have just said, facts are deposited in the student’s brain until
they are withdrawn at the right moment, for a particular purpose. Thus, there is no
chance for the student to challenge, criticise, discuss or question the “deposited”
information. Dale and Hyslop-Margison conclude that
Banking education maintains its currency because it appropriates [the] reason-
ing capacity of students to self-replicate. It limits student reason to accepting
the knowledge of others rather than con-structing knowledge based on their
own realities and experiences.14

Banking education thrives on the mental onslaught on the student. The student is
reduced to the level of an unthinking object with no views, values or capacity to
engage with the facts. On the contrary, learning involves the pupil (learner) actively,
and as a subjective being, getting involved and participating in the process. It
brings about a more or less permanent change in the learner (i.e., it has a meaningful
impact on the learner). The concept of a subjective being is important for learning. It
presupposes that the learner is not expected to behave like an object in the learning
situation. Therefore, the learner is expected to be an active participant with values,
ideas, experiences and a mind that has the potential to reason critically. In this
respect, Elias propagates Freire’s notion of conscientisation, which is “a form of
co-intentional education, in which students and teachers co-intend reality, that is,
both are subjects in critically unveiling reality and in recreating knowledge”.15

From this observation, it is clear that learning should acknowledge that the student is
a complete human being, equal (in that sense) to the teacher. The teacher, at the same
time, should be open to learning from the student. It is clear from this commentary
that learning is an active process in that the learner is required to participate.
Participation in this sense will involve the following:

12 Dale and Hyslop-Margison Paulo Freire 30.

13 Freire P Pedagog y of the oppressed (Continuum New York 2000) 73.
14 Dale and Hyslop-Margison Paulo Freire 82.
15 Elias JL Paulo Freire: Pedagogue of liberation (Krieger Publishing Company Florida 1994) 123.

SCL1501/117


•• Questioning the information and, if necessary, changing or interpreting it.

•• Gathering new ideas and information and making it one’s own.
•• Relating that information to one’s own life, realties and experiences and applying
it in relevant situations in a meaningful way.
•• Interacting or discussing with fellow students or the teacher, sharing ideas and
thus engaging in dialogue.

As you can see, this process (learning) demands that the student should take
responsibility. It is in this sense (of wanting you to learn) that we focus on the skills
of studying. However, you need to participate actively.

ACTIVITY 2.1
1. Think back to how you were taught in the past. Would you say you were
made to learn, or were facts or information simply imprinted on your brain?
How do you intend to study in future?
2. Think of the many things you have learnt or know today that you did not
really have to study. Can you list them?
3. In your study group, discuss the notion of banking education.

6 Feedback
The purpose of this ACTIVITY is to make you aware that effective learning or learn-
ing that has a lasting impression does not necessarily depend on memorisation
or consciously exerted mental effort. Learning is wider than the mere absorption
of information.

An evaluation of the concept of “learning” points to the fundamental need for

participants in the learning process to be “subjective beings” and not “objects” or
“animals”. Therefore, the notion of “subjective being” is a huge requirement, as this
assumes that one can think or reflect on matters, information or issues. It is our view
that the ability to reflect and carry values is the main aspect that separates human
beings (subjective beings) from animals. Of course, there are some human beings
who behave like non-humans (e.g. robots, parrots) when they are in a learning space
or in life generally. The following texts underline this essential factor in human
existence or education.

Illustration
Read the following text, which is a eulogy to Ahmed Kathrada, given by former
President Kgalema Motlanthe during Kathrada’s memorial service.

The ANC itself may disappear from the face of the earth if it fails to embrace the
culture of reflection from time to time concerning its character and inner soul as
a governing party … . Self-reflection means a process of subjective becoming
by consciously grappling with objective reality. In this connection, he was once
again reaffirming the courage, humility, selflessness and generosity of freedom
fighters within the cultural framework of self-reflection.

Self-reflection means a process of subjective becoming by consciously grappling

with objective reality. The process of self-reflection makes and remakes our

18
 LEARNING UNIT 2:  Study skills

subjectivity. Self-reflection amounts to questioning the very basis of the

underlying postulates that frame the way we do things. Without self-reflection
human beings degenerate into a depersonalised state of parrotry, conformity
and robotics.

Kgalema Motlanthe “Tribute/Eulogy to Ahmed Kathrada” Memorial Service

Source: http://anceasterncape.org.za/eulogy-by-former-president-kgalema-
motlanthe-during-the-funeral-service-of-comrade-ahmed-mohamed-kathrada/
[Accessed on 04 June 2019.]

ACTIVITY 2.2
1. What is the central message that Kgalema Motlanthe sends through this text?
2. Go back to what has been discussed so far in this learning unit, and say
how Motlanthe’s views emphasise the importance of being a “subjective
being” in human existence.
3. Like Paulo Freire, Kgalema Motlanthe puts a high price tag on the human
ability to “reflect”. How does he do this?

7 Feedback
In the text, Motlanthe makes a spectacularly good case for reflection as a great
characteristic or attribute for the human species. Essentially, according to Mot-
lanthe, anyone who has his/her sense of reflection in a suspended mode is no
different from an animal or an object, for that matter. He emphasises the point
that the minute one stops reflecting one is as good as dead. It is in this sense that
he values the ability to think or reflect as a very precious thing that sets human
beings apart from animals and non-human objects or things.

Prince Mashele makes a similar point, though in a different guise, in the following
text that you should read critically:

Illustration
“Experiencing sublime happiness makes a complete human being”
(Prince Mashele, Sowetan Monday April 16, 2018)

Why do I live? In other words, what is the purpose of my life? Few people have
taken time to reflect on this fundamental question. Yet, the question applies
to all of us. Wittingly or not, we all conduct our lives according to a vision that
responds to the very same question: Why do I live?

Almost all people in the world think that they live for one of three reasons. There
is a category of humans who answer the question by saying, “I live because I
am not dead.” For such people, no grand purpose directs life; you take each day
as it comes, and you stop living the moment your body stops breathing–that’s
all. They may not realise it, but those who think like that essentially see nothing
different between we humans and animals.

No goat thinks that life has a purpose. Debating with people who do not differentiate
themselves from animals would be total madness.

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ACTIVITY 2.3
1. How is this text relevant to the notion of a subjective being?
2. Make a connection between the message of this text and the concept of
“learning”.
3. Write a paragraph where you compare Prince Mashele’s views and those
of Kgalema Motlanthe.

8 Feedback
Both Prince Mashele and Kgalema Motlanthe emphasise that critical reflection
is the main aspect that distinguishes human beings from animals. Without the
critical faculty or ability to reflect, one does not qualify to exist as a human being.
Therefore, such a “person” cannot “learn” in the true sense of the word, but would
at the most do as animals or other non-human things would do. Mere memorisation
of facts is simply a mechanical process that does not really amount to effective
learning. It is thus only human beings that can learn.

Before we go deeper into the content of this learning unit, let us pause to consider
what type of student you are. You will be able to do this if you honestly, and in
writing, respond to the following statements/claims on a decent sheet of paper,
which you should keep very safe. In fact, we suggest that you always keep these
points or statements in mind when you tackle each section and sub section of this
learning unit.16
1. I have a fixed place or I am used to one place where I study.
2. When I study I am able to distinguish between more important facts and less
important ones and then make notes about important things only.
3. I believe I have the ability to pass any course.
4. I work according to a timetable on which I have planned and written out my
daily/weekly study and recreational activities.
5. Once I have completed my main tasks for the day, I use every possible op-
portunity to study.
6. My concentration does not wane (diminish) when I study for an extended
period. I do not think of other things when I study.
7. I do not write down verbatim (word for word) everything that I read in a text.
8. I use my own shorthand method when taking notes.
9. I am studying at university because I decided to, not because others expect
me to.
10. I do not accept everything I read at face value.
11. When faced with a difficult piece of work I do not give up.
12. It is important to me to do well in my studies.
13. I know exactly why I am doing the course for which I have registered and
how I am going to use it one day.
14. My relations with my family are bad and I worry about this a lot.
15. I test myself to find out whether I know the work when I finish a study session.
16. I plan how much time I spend on each question when writing a test or
examination.

16 These have been adapted from Van Schoor A, Mill E and Potgieter D Effective study (Unisa Press
Pretoria 2005) 12–14.

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 LEARNING UNIT 2:  Study skills

17. I first skim (read quickly) through the work and try to identify the main themes
before I begin reading carefully for study purposes.
18. I think lecturers try to catch learners out in assignments.
19. I do not procrastinate (put off or delay) when it comes to doing assignments,
then submit them late.
20. At the end of the test or an examination, I never look at my answers again,
even if I have time to spare.
21. I use the library because I know how it operates.
22. After a lecture I go through my notes and organise them so that they will be
easier to follow and understand later.
23. I do not take tranquilisers or stimulants before an examination.
24. I make notes in my own words and my own style.
25. I know how to use the latest research to trace sources on a specific subject.
26. I need to be in touch with fellow learners.
27. I study at a well-lit desk.
28. I study with a radio, tape recorder or television set on in the background.
29. When I begin working on an assignment, I make notes while I read and im-
mediately arrange them under my proposed headings to help me to write a
good answer.
30. I tend to daydream.
31. There is a lot of noise in and around the place where I normally have to study.
32. In an examination I begin with the questions that I can answer best.
33. The people I share my home with, know my study programme and do not
disturb me.
34. The place where I study is peaceful and quiet.
35. I prepare for group discussions by reading the work to be discussed before I
go to the class.
36. I study by asking myself questions and trying to gain insight into the work.
37. When I write an assignment, I carefully plan the dates by which I have to
finish certain sections.
38. In class I never ask or answer a question unprompted (without the lecturer
calling on me) because I am afraid that I may forget what I wanted to say.
39. Before I do an assignment, I plan carefully what headings and subheadings
I will use.
40. I have many extramural activities that encroach on my study time, which means
that I do not spend the amount of time I want to on my studies.
41. As I read, I make notes of the most important arguments.
42. I have a comfortable table or desk at which to study.
43. My friends know when I am studying and do not trouble me at those times.
44. When I have finished reading, I cannot remember what I have read and have
to start all over again.
45. I cannot study at home.

The purpose of the above statements is to alert you or bring to your consciousness
some of the things that you do (or are not supposed to do) to become an effective
student. But remember that each person is unique. Thus, despite the fact that we
urge you to consider certain activities as you study, you have to start thinking about
yourself: your background, your lifestyle, your relationships, emotions and so on.
Such knowledge about yourself may help you to make your studies more effective.

In other words, no particular style of learning or studying can be prescribed for

everybody. You must look at your own situation and see how best you can make use
of your available resources to get the most out of your study process.

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Some authors17 seem to view the study process as comprising three phases: exploration,
fixation and testing.

2.2.4 The study process

2.2.4.1 Introduction
The process that we undertake when we study is very complex, though we seldom
consider it so. It is not that easy to define or explain what this process really is.
However, it is convenient to regard it as a journey that is comprised of different
phases. We need to emphasise from the outset that these phases should not be seen
as distinct stages of a journey, but rather as inter-related. This approach logically
recognises the overlaps between the various phases of a journey. The study process
can be described in terms of the following phases: exploration, fixation and testing.

2.2.4.2 The exploration phase

This phase entails the generalising of activities whereby you try to find information
about the topic or programme. It involves you, the student, getting the necessary
background information about the programme to be studied so that you become
familiar with the work. In this sense you would start planning and managing your
time. Therefore, it is worth noting that in this phase you do not intensively engage
with the subject or topic, but you put yourself in a position where you can ease into
the matter, especially during intensive study. Some of the things you would normally
do during this phase are as follows:

•• Ensure that you have all the required study material.

•• Contact fellow students to sort out problems.
•• Discuss the topic with lecturers, etc.
•• Identify and clarify difficult concepts.
•• Get an overview of the content of the learning material.
•• Identify questions you must answer.
•• Make summaries for intensive study later.

2.2.4.3 The fixation phase

This phase relates to that stage of the study process where you actually get to grips
with the real contents of the subject, topic or text. In other words, it is the period
during which you would be expected to do intensive reading. This is the time when
you should concentrate fully on detail to be able to report on the material.

Some of the things that one may be expected to do during this phase are as follows:

•• Consolidation of facts: whatever you do to ensure that you really understand the
material.
•• Summarising facts: Having satisfied yourself that you have really understood
the material you will have to make useful summaries of what you consider to
be the most important elements of your material. As you may already know, in
summarising you are expected to separate the more important points from the less
important. If you cannot do this, it means you did not understand the material.

17 Van Schoor et al Effective study 3–8.

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 LEARNING UNIT 2:  Study skills

After discerning these points you would then write them down as your notes
(note making will be discussed later on).
•• Supplementing and reviewing your notes.
•• Memorisation/rehearsal: We have already pointed out the limitations of this
“learning” style. You should not memorise everything that you come across in
your material. Instead, memorising should depend on the nature and type of
activity. In the end you must ensure that you absorb these facts.

2.2.4.4 The testing phase

Here you assess your grasp and understanding of the material. This you do by asking
yourself questions that cover the material you have studied. You should answer these
questions honestly to satisfy yourself that you know and understand what you have
studied.

There are various ways in which you can frame these questions. ‘‘Action words’’
normally tell you what to do and how such questions should be answered.

ACTIVITY 2.4
Explain what the following verbs imply you should do:

•• Compare
•• Discuss
•• Criticise
•• Explain
•• Justify

9 Feedback
Make sure you understand the specific instruction in each word. After doing this
Activity you may look at the explanations given later in this learning unit under
2.2.13.1.

There are many other action words that you may come across in your examination
papers or even assignments. Make sure you know what each of them requires you to
do. Here are some of them: evaluate, define, describe, distinguish, name, illustrate,
analyse, contrast, differentiate and give. We come back to this aspect (and these
action words!) in another section later in this learning unit (see Writing Assignments/
Examinations).

2.2.5 The study environment

The environment in which we study is often the least valued aspect of the study
process. We seldom consider the space around us as a key element in the success of
our studies. However, it is the environment that forms the basis for our inspiration
to achieve. It is also a factor that may break us. Thus, it becomes necessary to ensure
that the environment around us is conducive to studying and learning.

No matter how bad your environment may be, an environment that has the following
elements can be helpful to you:

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(a) Social space: This refers to the people around you. They may influence you
positively or negatively. You will therefore find that there are those people
who are supportive of you as a student, and appreciate the fact that you need
to achieve whatever goals you have set yourself. On the other hand, there are
those who might not appreciate your commitment to the study programme,
and might work hard to distract or destabilise you. It is thus important that
you establish and maintain good relationships with people around you. This
forms the crux of your social environment. Check the kind of people or so-
cial space around you; master it and know how to get the best out of it. It is
clear that the environment shapes your life. For instance, the strategies and
study patterns that you may adopt when you live alone in an apartment will
be different from those of a parent-student who lives with his/her family
(children, spouse, etc). In the latter case you may find it more convenient to
study somewhere else (e.g. the library).
(b) Physical space: It is generally agreed that the following factors need to be
taken into full consideration:
(i) Ensure you have a particular place where you study. This is because
a familiar place will make you calm and make it easier for you to settle.
Your mind will not be easily distracted, and it will help you to get into a
working mood quickly. Another advantage is that you will know where
your materials are at any given time.
(ii) Be comfortable: Make sure that your study place gives you the chance
to relax (though not too relaxed, otherwise you will fall asleep). Decide
what is helpful for you: studying at a table or desk, on a sofa or couch,
on a bed or in the library. Normally a table and a chair are good when
doing serious academic studies. Ensure that the table is big enough for all
the materials you need during your studies. To avoid distraction, ensure
that your desk and chair are not in front of a window.
(iii) Lighting and ventilation: For you to work effectively, your study place
should have good lighting that does not cause eye strain. For this, make
sure that you have a good study lamp. The lamp should, for example,
not cause shadows. The room should also have enough fresh air. Make
sure there are proper windows to allow fresh air to come through. Stuffy
rooms are not good for long periods of study.
(iv) Temperature control: You cannot study effectively and sustain your
concentration level if you study in a place that is either too cold or too
hot. A warm temperature usually makes us fall asleep, whereas extremely
cold temperatures make us uncomfortable and we lose focus. Make sure
that the temperature level in your study room is comfortable.
(v) No interruptions: You need to have extended periods of studying
without being interrupted. If you master the social space, you will not
have such problems, because the people around will understand your
needs and be supportive. Interruptions may also be caused by phones.
When you study make sure that your cell phone is switched off, or your
landline is off the hook.
(vi) No distractions: We normally get the best out of our study process
when we study in a quiet place. This is because our concentration and
focus are not disturbed. Make sure that your study place has no such
distractions (noisy areas). For example, master your environment, and if
you know that it is quiet towards midnight or so, you may need to adjust
your study timetable in such a way that you study when your environ-

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 LEARNING UNIT 2:  Study skills

ment is quiet. If you prefer studying when music or the radio is playing
in the background, ensure that the volume is kept very low.

ACTIVITY 2.5
1. Consider your own situation/environment and identify elements or factors
that you think are helpful to you as a student. List them.
2. Draw another list of elements that you consider to be hurdles in your study
environment. How can you compensate for these obstacles?

10 Feedback
Note that there are no specific answers to these. Ask yourself why you think the
factors you have listed are helpful. Please be honest about the factors or elements
you identify as forms of disturbance (obstacles), and start thinking about how they
may be negotiated to ensure that your actual study process does not suffer as a
result of any of these elements.

2.2.6 Motivation
As already suggested, motivation is a very significant aspect of studying, especially
when you consider the environment in which you study. Motivation can be looked at
from two perspectives: internal (intrinsic) and external (extrinsic) motivation. Both
these perspectives will shape you and thus suggest or influence the type of learning
styles or study patterns that you will adopt.

2.2.6.1 External motivation

External motivation springs from outside the individual (e.g. a father who forces his
son to study). It is for this reason that it is generally said that external motivation is
weaker than internal motivation (i.e. motivation from inside the student, e.g. his/
her aim to improve his/her position). However, as already said, individual students
are unique, and you may find that some students achieve more when influenced by
external forces. Examples of external motivation may be either positive or negative.
Here are a few examples:

Negative external motivation:

•• If you do not pass Skills Course for Law Students module (SCL1501) you will
not be allowed to register for another LLB course.
•• If you do not pass all your first-year courses, you will not get a bursary.

Positive external motivation:

•• If you pass all your first-year courses you will be given a bursary.
•• If you pass SCL1501 with distinction you will get automatic promotion at your
work, or you will get a car as a reward from your spouse, and so on.

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2.2.6.2 Internal motivation

This kind of motivation is intrinsic (internal) to the individual. The individual knows
what he/she wants and pushes himself/herself to do well. Normally you show internal
motivation when you have certain goals that you know you want to achieve. You as
a student already know that you must study or do well to achieve that goal. What
this tells us is that if you set goals or standards for yourself you obviously want to
achieve them. No one will have to push you. The goals that you set for yourself may
either be long or short term.

Long-term goals – these are really those that shape you as a student. They are the
kind of goals that are set over a considerably long period; say for months or even
a few years. Examples in this regard could, for instance, be (i) aiming to pass the
examination or (ii) aiming to pass your LLB degree.

Clearly set out goals may help you to focus on your studies because it is like having
a destination to reach. It also means having tools (signposts) to help you reach that
destination. In terms of the study processes, planning your studies (e.g. timetables,
weekly/monthly or even year plans) is essential.

ACTIVITY 2.6
Jot down long-term goals that you have set for yourself. What might disrupt
your efforts to reach these goals? How do you think you could overcome these
difficulties?

11 Feedback
You need to be realistic when listing these goals. Do not just complete this Activity
for the mere sake of completion. What you write here should truly represent what
you have set yourself to achieve. Ensure that your study process is informed by
these goals. You also need to state realistic mechanisms or means to overcome
what you think might stand in your way to achieving these goals.
Short-term goals – these are sometimes referred to as ‘‘objectives’’. These are
targets that you may set for yourself and achieve in the next few minutes, hours
or a few days. For example: to read a text, a chapter or learning unit. Short-term
goals will obviously help in terms of motivation when you are engaged in the study
process. They may serve as milestones or small successes that may encourage
you to keep on going.
One easy way of ensuring that you stay motivated or focused on your studies is
the idea of having a pact or agreement with yourself that you will stick to your
programme of study. Sometimes these are called learning contracts whereby you
practically write this agreement and put it in your study room to keep on reminding
yourself about your goals and commitments.

We know that a “normal” contract has, at least, two parties. A learning “contract”
is a unique agreement that has only one party (the student). (Note that witnesses
are not parties to a contract.)

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 LEARNING UNIT 2:  Study skills

ACTIVITY 2.7
Write and sign a learning contract that you enter with yourself to the effect that
you bind yourself to passing the SCL1501 course. Be specific as to the various
short-term goals, tasks and related commitments. Also list your long-term goal:
to finish the LLB degree. Do not forget to involve two witnesses, who are also
expected to sign this contract. Read it regularly.

12 Feedback
A learning contract is a binding agreement or pact that a student enters with him-
self or herself. It is like a personal mission or vision that a student has as his/her
guiding principle in respect of his/her studies. It is regarded as seriously as one
would if one had entered into an agreement with another person. Key or general
characteristics of a contract should be present here (e.g. date, witnesses, signa-
tures, place, breach clause and remedies). A striking feature of learning contracts
is that only one party (i.e. the student) is involved in the agreement. In other words,
the student contracts with himself or herself.
Although human beings are unique and do have unique styles, it is generally agreed
that internal motivation should be developed rather than external motivation. This
is because it is believed that when you are self-motivated, have the right attitude
to your work, and the necessary confidence about your work/studies, you can
practically deal with any factors or challenges that your environment may pose. If
your motivation level is low, you will easily succumb to the negative environment
around you.

2.2.7 Other considerations

When talking about studies, we seldom think about how important diet and general
lifestyle are to the study process. We DO NOT wish to prescribe a diet or lifestyle for
you to follow. We are convinced that you know yourself better than we do. However,
we may give you the following tips in this regard:

•• Avoid substances such as alcohol and nicotine or even coffee. One of the
disadvantages of consuming coffee or other tonics to keep you studying till late
is that they exhaust you and may be harmful, especially when you have to write
a test or examination the following day.
•• Eat a lot of fruit and vegetables. Eat small meals on a regular basis.
•• Drink lots of water. Get enough sleep.
•• Exercise regularly and in moderation.

Once again, we emphasise that these are not prescribed and, therefore, we recognise
that they may not be acceptable to you.

2.2.8 Time management

Think of the many things you have to do as a student. How do you allocate your
available time to each of these things? As a Unisa student, you may find that you
also have other responsibilities such as work or parenting that also need a portion
of your available time.

A very important part of time management is the ability to recognise that being a
student does not mean you are not a human being anymore. You have to balance

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your life. For instance, you cannot spend 80% of your available time on sleep and
study! Your time planning should be realistic.

It is widely believed that at university level your ability to use time effectively plays
a positive role in your life as a successful student. Therefore, it is crucial that you
learn the skill of managing time effectively as soon as possible for you to succeed.
The reason why time management is so crucial is very clear. Think of the pressures
that are time-driven at university. Bear in mind that you do not only do the SCL1501
module, there are assignments for other courses too, which have their own deadlines!

A key element in time management is one’s ability to prioritise one’s work or activities.

2.2.8.1 Prioritising
When one prioritises activities, one looks at the available time at one’s disposal
and allocates that time to such activities according to their order of urgency and
importance. One will naturally allocate more time to the more important activities
and less time to the less important ones. Similarly, one will attend to the more urgent
issues before those that are less important. A “to do” list is one simple mechanism
of prioritising activities for students, and even professionals such as lawyers or legal
practitioners. In other words, when you engage in the practice of prioritising you
decide on what is or is not important to you. As a student you will most probably
at some point face a situation where you have to choose between certain things or
activities. The following are some of the activities that may lead to such confusion:

•• Working on an assignment
•• Going to a football match
•• Going out with friends
•• Going to see a doctor
•• Preparing for the SCL1501 examination
•• Watching a movie
•• Watching news on TV
When confronted with such situations, students tend to choose the more enjoyable
ones (their ‘‘wants’’) and avoid or postpone the ones they really have to do (their
‘‘should do’s’’). Students, for example, often choose “going to a football match” over
preparing for the SCL1501 semester examination. At least that is what we hear on
“the grapevine”!

To handle such conflicting “demands” easily, you need to be able to say: ‘‘What is
important for me? Which activities can I afford to give up?’’ As a result, you may
have things you want to do, but find that these (when weighed up against others)
need to be given up. Thus, your wants are sacrificed for the things you should do.

Can you weigh up the following activities against each other?

WANTS SHOULD DO’s

Going to a football match Working on an assignment

Going out with friends Having a good sleep

Watching a movie Reading in preparation for class

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 LEARNING UNIT 2:  Study skills

From the above table it is clear that you have to know (identify) what your priorities
are to deal effectively with such conflicts. But the point that we want to make here is
that if you plan and manage your time well, you will seldom experience such conflicts
because you will always be ready and on time with most of the things that you are
required to do. A full-time plan is, therefore, very important.

Prioritising is one thing, but getting on with the actual work or business is quite
another! Once you have compiled a list of your important tasks you need to draw
timetables that encourage you to start studying at particular times.

Kok et al18suggest that one consider the following factors when deciding how to
prioritise:

•• The urgency of the activity

•• The relative importance of the particular activity in relation to other activities
•• The anticipated degree of difficulty
•• The likely time needed to complete the activity
•• The scope and volume of the work involved

2.2.8.2 Time planning

It is not easy to stick to our schedules regardless of how well we might have prioritised
these activities. Time planning is useful in ensuring that you keep focused and organise
your time and activities such that you reduce the chances of not being able to follow
your schedule of activities effectively. Indeed, if you plan your studies and activities
for a long period, say a semester or a year, you will certainly avoid the embarrassing
situation whereby you will be forced to work under pressure at the very last minute.
Timetables are especially useful when dealing with problems such as

•• procrastination – when you simply cannot get started

•• working only when under pressure
•• imbalance in terms of time allocation to various subjects, activities, and so on
Make sure that your timetable accommodates breaks or gaps between the various
activities. Burns and Sinfield19 list the following points to be considered when
planning your timetables:
(a) Whether you are a morning, afternoon or evening person. Try to fit your study
times around your maximum performance times. Work with your strengths.
(b) How much time you would like to give friends and family. Your studies are
important – but most of us would like to have friends and family still talking
to us when our studies are over!
(c) How much time you have available to work and/or perform chores. These
days we need to earn money while we study. We need to keep our homes
at least sanitary. Watch out though – work, housework and all chores can
become excellent excuses for not working (in fact, studying!). They become
displacement activities – sometimes it feels as though it is easier to rebuild
the house completely rather than write an essay!
(d) Whether you will be able to keep all your hobbies and interests going. Do
you fight to keep your hobbies now – or do you plan to take them up again

18 Kok A, Nienaber A and Viljoen F Skills course for law students 2nd ed ( Juta Cape Town 2011) 6.
19 Burns T and Sinfield S Essential study skills: The complete guide to success at university (Sage London 2003)
43.

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after your studies? Do you acknowledge time limits and decide that in the
short term your studies can become your hobbies? Or can you juggle time
effectively and so fit more in?
(e) Time for rest and relaxation. Studying is hard work – it can also be very
stressful. It is important to get sufficient rest whilst you study, and it is useful
to build stress-relief activities (e.g. exercise) into your timetables right at the
beginning of your studies.

ACTIVITY 2.8
Draw up your own study timetable (if you do not have one yet).

13 Feedback
Before drawing up your timetable you must look at your own circumstances
(e.g. commitments, time available, people around you, number of modules) and
prioritise. Take this task seriously and make sure that the timetable is relevant to you.

2.2.9 Study groups

The idea of using groups in the context of studying emanates from the fact that human
beings are naturally group orientated. In most cases we identify with groups, and are
often part of those groups. We acquire and/or learn most things from our fellow
human beings. Quite often this learning occurs unconsciously or even indirectly.

A basic example in this regard is how you “learnt” your mother tongue. Simply being
part of a group resulted in us unconsciously learning or acquiring our languages!

We form part and parcel of our families, clans or communities. Belonging to a group
helps us develop most of our thoughts, social skills and other behavioural patterns.
As students you have to learn how to relate to other people, be it your fellow students,
your lecturers, tutors, and so on.

ACTIVITY 2.9
Try to think of skills in life that you have acquired or learnt by simply being part
of a certain group or community. List such skills and explain why you think such
skills have been developed in this way.

14 Feedback
This task shows the value of learning in a group context. Group contexts make us
learn certain things without necessarily being aware that we are actually learn-
ing. Examples of group contexts may include our homes, workplaces, various
ceremonies, sporting and cultural situations.

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 LEARNING UNIT 2:  Study skills

2.2.9.1 Why study groups?

There are many people who do not believe in group work. Are you one of them? If
you have been raised or taught in an environment of competition and individualism
you will most likely feel uncomfortable studying in the context of a group. However,
learning effectively from a group context is a skill that has to be learnt and developed.
This echoes the point we made earlier, that each individual is unique. Thus, not
everyone is effective in a group setting. But you cannot afford always to be on your
own as in life you cannot avoid dealing with other people. For instance, as a lawyer
or legal practitioner one day you will probably find yourself being part of a group,
like in a partnership with other legal practitioners, or in a prestigious legal firm.
To add to this, legal advisors in big companies are usually part of the management
teams. Even we, law lecturers, are part of a Department!

Therefore, there are professional reasons for establishing regular contact with fellow
learners. There are, however, academic reasons too. If you have to “teach” others
you find out soon if you are not really in command of the material. Conversation/
argumentation shows gaps in knowledge and abilities and can also force one to work
out conclusions, implications or applications that you were not aware of previously.

As students you are also encouraged to form study groups. The value of study groups
can be related to this quotation:

Come learn with me and we shall be exemplars of proficiency. But if you yearn
to be alone, then you must learn it on your own.20

2.2.9.2 What makes groups work?

The key feature of functional groups is the element of respect or integrity. Members
of a group must respect one another. Some of the important characteristics of a
group are the following:

•• The group members must have and understand a common objective.

•• Group members must observe the basic house rules. For example, one person
can speak at a time, observe time (punctuality) for meetings, and must prepare
for group meetings.
•• Group members must have their roles defined. For instance, decide who will be
the chairperson of the sessions, the scribe, time-keeper or organiser of venues.
•• Members must have confidence in and trust one another.
•• The group must be manageable. There should not be too many members. An
effective group normally has between three and five members.
•• Each member must contribute to the discussions.
•• Members must work co-operatively and with preparedness.

Constructive criticism is essential. Thus, members should feel free to criticise for
the benefit of the whole group. That is, the intention and motive to criticise a fellow
member or an issue must be meant well, and help the group in some way.

20 Maughan C and Webb J Lawyering skills and the legal process 2nd ed (Cambridge University Press London
2005) 85.

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2.2.9.3 Benefits of a study group

We cannot list all the advantages of a study group here; you are therefore urged to
think of other benefits you believe are to be had from studying in a group context.
Here follow some of the benefits:

•• A group can serve as a pool of motivation. The idea of knowing that you are ‘‘not
alone in this’’ can inspire you.
•• Being a member of a small group can give you confidence to engage actively or
participate in discussions.
•• If you have to present something to the group you will be ‘‘forced’’ to prepare
so that you do not end up disappointing your fellow group members or even
embarrassing yourself.
•• You will benefit from, at least, hearing other people talk about issues or concepts
that you have only read about on your own.
•• Other members of the group may bring different dimensions and perspectives
to how you understood certain things in your study material. Fresh or alternative
ideas are thus introduced, and you can, therefore, meaningfully compare notes.
•• As you compare notes and exchange views in a group setting, you will have the
opportunity to clarify issues and get a better understanding of the subject matter.
•• Should you prepare and present something on a topic, you will realise later that
you almost become an expert on that topic.
•• Groups add a social and/or interactive element to the study process. Be careful,
however, not to fall into the trap of making your study group a social club or a
mere talk show.

2.2.9.4 Disadvantages of study groups

Try to think of the disadvantages of study groups. Here are some of them:

•• Some students may not work hard enough and thus parasite on the contributions
and participation of others.
•• Some members may be arrogant, bully others or even use the groups to ‘‘show off”.
•• There are problems with students who dominate others.
•• Other members may simply become silent, passive and not participate at all.
•• Some students may not prepare for the group discussions.
•• You have to contend with logistics such as availability of venues, and so on.

A look at the benefits and disadvantages of study groups already suggests that there
are many challenges and precautions that you should consider before forming a study
group, and even after your study group is up and running.

2.2.9.5 Some ways in which a group can function

(a) The central figure model

•• The person in the middle is responsible for the flow of communication.

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 LEARNING UNIT 2:  Study skills

•• This model is suitable for simple tasks.

•• A disadvantage is that the central figure can be overloaded with informa-
tion or he/she can block the flow of information.
•• This pattern of communication is used in most meetings where all mem-
bers address their comments through the chairperson. The success of this
method therefore depends a lot on the leadership abilities of the person
in charge.

(b) Decentralised groups model

•• According to this model, communication flows freely between the group

members.
•• This model is suitable for small groups.
•• Because this model is fairly unstructured it can lead to ‘‘talk shows’’ while
nothing really gets done. It is thus advisable to have a free flow of commu-
nication while still having a leader (chairperson) who can see to it that the
decisions taken are implemented. This can be seen in the following model:

(c) Free flow of communication + chairperson model

Because group members can freely talk to each other and the leader/chairperson is
also available, this model is used with the greatest success.

2.2.10 Note making

2.2.10.1 The rationale for making notes
The principle of taking notes springs from the fact that you should know what is
important and what is not. Note making suggests that you write down the important
points and leave out the less important or irrelevant ones. This should explain why it
is very important for you to have sound reading skills to be able to make notes. The
point that we make here is that you cannot make notes if you do not understand the
material that you study or read. Ensure that you know (and can use) the following
reading techniques: speed-reading, skimming, scanning and study reading. We are aware of,
and fully understand, the fact that as a Unisa student you would, most of the time,
find your studies dependent on the reading that you do, rather than face-to-face
lectures in class.

One of the reasons why we make notes is to have a ready record of important
information to be used whenever we may need it, for example, when we prepare for

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our examination. You need to realise that the examination can take many formats:
from being tested on the more general aspects to having to give specific details.
Thus, for your notes to be useful in future they must be adequate and effective. In
this regard you should ensure that they have main ideas, details and illustrations or
examples.

Before we can talk about the specific procedures and ways of making notes, we must
mention a few general points about notes or the note-making process:

•• Good notes develop from effective reading and listening strategies.

•• Note making is an active process, and it promotes learning.
•• Note making helps you sustain your concentration when you study.
•• As far as possible, write notes in your own words, and in phrase-like format.
•• Try to leave enough space in the margins, between the words, sentences and
paragraphs. This makes your notes neat, easy to read and uncluttered. It will also
be possible to fill in more information later when you revise them.
•• Notes or taking notes serves as a way of reinforcing whatever we are reading or
have read.
•• Notes serve as a record for future use when we need it.
•• There are various formats that can be used. These include indenting, headings
that label ideas, and markers (e.g. bullets, numbers, asterisks) to identify points
under the headings. It is advisable to use the format that you find most helpful.
•• You must write notes as quickly as possible to save your reading time. For example,
you may consistently use abbreviations and/or shorthand, as shown here: Intro
– introduction, adv – advantage, mng – management, org – organisation, scl –
skills course for law, = for “equals”, & for “and”, and so on.
•• Upon completing your reading session, you should go over the notes, edit them
and ensure that they are synthesised. You will be able to use the empty spaces to
edit or correct some of your mistakes.
•• Use a standard (A4) size piece of paper or notebook.
•• Separate notebooks or sections of the notebook should be used for different
modules or courses.
•• Write legibly/neatly so that you do not have to rewrite your notes later.

2.2.10.2 Note-making styles

Obviously, the various ways in which we make notes can be categorised into two
main types:

•• Visual notes: These are more schematic or diagrammatic (e.g., mind maps,
spider-grams, branching notes, tables, flow charts).
•• Narrative notes: These are more textual and involve a lot of written work (e.g.,
linear notes, lists, time-line notes, keyword and paragraph method, the question
method and segmenting and labelling).

The choice of a particular note-making style will depend on your (i) individual
learning style, (ii) the kind of subject matter you are reading (e.g., a maths text would
be different from a history text), (iii) whether you are far from examinations or (iv)
whether it is the first time you study that particular topic, and so forth. You will
discover, however, that a combination of the various styles will help you succeed.
The more you get used to making notes as you study, the easier you will find it (if not
spontaneous) to choose a suitable style for the various tasks or texts that confront you.

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 LEARNING UNIT 2:  Study skills

There are many sources that discuss these various styles of note making. We do not
discuss them in detail in this study guide. However, we expect you to read intensively
about them in the various sources.

2.2.11 Study methods

2.2.11.1 Relationship between method and approach to learning

There is a close relationship between one’s attitude or perspective on learning and
the study methods selected for use in studying. At the beginning of this learning
unit we talked about the concepts of banking education and conscientisation. We stated
that the view of critical education (conscientisation) on learning is that it is an active
process, which entails you getting involved, participating and taking responsibility
for your own learning.

This aspect is very important and carries significant implications for how we
should study. Thus, approaches that lend themselves to “banking education” will
accommodate study methods that are associated with rote learning. Conversely, the
approaches that are geared to more critical learning will embrace the use of study
methods that encourage critical reflection and engagement. This is the approach
that we promote. Thus, our study process should enhance our desire to engage in
meaningful learning. It must now be clear that the study methods we choose will
also influence the study process.

2.2.11.2 Mnemonics/memory strategies

Although memory is not unimportant, as we have already said, your sole purpose in
reading or studying should not be merely to store facts or details in your head. The
key point is for you to be able to think through the ideas or arguments that you are
reading. For you to be able to deal with a certain topic, idea or argument, you would
thus be expected to recall/remember certain words, figures, keywords, and so on. It
is this aspect that makes memorisation both useful and relevant to you as a student.

There are various memory strategies that you can use. We encourage you to find more
information on these strategies in the various information sources (e.g. in the library):

•• Acronyms
•• Acrostics
•• Keyword method
•• Linking/chain method
•• Association
•• Imagery
Most of these are discussed elsewhere.21 Here we briefly discuss acronyms and
classification.

(a) Acronyms: When you want to remember certain facts easily and quickly you
may want to have some formula or way that will help you in that regard. At
first you must know the keywords or basic facts that need to be remembered.
Normally you would take the first letter of each keyword and use them to
form a new word. When you use acronyms you basically invent a combination

21 See Van Schoor et al Effective study 97–112.

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of letters that easily leads into the important facts to be remembered. Each
letter serves as a cue (or suggestion) for an item, idea or word that you need
to remember. In other words, an acronym is a combination of letters that is
used to memorise a list of words, phrases and so forth.

For example:
(i) BODMAS: This is a common acronym used in arithmetic to remember
the order in which arithmetic problems have to be solved. The order is:
Brackets, Of, Division, Multiplication, Addition and Subtraction.
(ii) PEDMAS: Similarly, this is used to show the order or sequence in solv-
ing or evaluating maths equations. The order is: Parenthesis, Exponents,
Division, Multiplication, Addition and Subtraction.
(iii) IPMAT: This acronym is used to recall the stages of cell division. The
stages are: Interphase, Prophase, Metaphase, Anaphase, Telephase.
(iv) ROY G. BIV: This one is used to recall the colours of a rainbow or
visual spectrum. The colours are: Red, Orange, Yellow, Green, Blue,
Indigo, Violet.
(v) Unisa: University of South Africa.
(vi) AIDS: Acquired Immune Deficiency Syndrome.

(b) Classification: This happens when we rearrange material in an order that

will make it easier to remember. Thus information relating to the same theme
or topic is brought together and given a name or heading that best describes
or summarises it. (See the sections on note making and summaries earlier in
this learning unit.)

The information in the material can be grouped according to finer characteristics

and further be given sub-names/subheadings. The basic element of classification
is the reader’s ability to group relevant or associated pieces of information together
(according to their common characteristics).

For example, if you have to read an article on ‘‘Transport’’ you might find yourself
doing something like this:
Step 1. After reading the text you might find that the text (in summary) deals
with modes of transport.
Step 2. After this heading (name) you may find yourself grouping certain modes
according to their shared, finer characteristics. For example: Road transport
(cars, trucks, motorcycles, tractors), Sea transport (ships, boats, other vessels)
and Air transport (helicopters, aeroplanes, airbuses, etc).

This process can continue as long as the reader sees some point or characteristic
that he/she feels can be grouped under its name/heading.

2.2.12 Summaries
2.2.12.1 What is a summary?
A summary is a short or brief way of representing the contents of the original text. Thus
only the main, important ideas of the original text will find space in the summary. We do
summaries so that, in future, we can see what the original text is about without
wasting time going back to the original document.

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 LEARNING UNIT 2:  Study skills

The ideas of the original writer are reflected. Normally quotations from the original
text, repetitions, examples and illustrations are avoided. Summaries are usually about
one tenth the size of the original text. Note, however, that you may include examples
if the material you are dealing with is very complex.

When writing a summary, you should start by reading the original text thoroughly to
ensure that you understand it. You should thus be able to tell in about a sentence
or so what the text is all about. You may have to go back to the text to look at specific
points, keywords or key ideas. Highlight these as you read! You should, as indicated,
ensure that your summary does not deviate from the original text.

When you actually start doing summaries, you will realise that they encourage you
to look at various ideas/facts in the text and write what they, as a whole, signify. In
other words, summaries generally give an outline of the author’s main ideas or
statements. It is clear that you will unavoidably deal with questions such as: “What
is the main idea or point of the text?” or “How does the point come through?”

As an LLB student, you can already imagine the amount of work that you will be
expected to know in order to complete the degree. In the study of law, your work
will definitely involve reading textbooks (prescribed, recommended and additional),
cases, journal articles, statutes, and so on. Just think how many pages you would
be expected to have read and re-read by the time you write examinations in each
of the courses, or simply to know and apply certain legal principles or solve certain
problems. We are sure you appreciate, by now, the benefit of making summaries,
as it is obvious that you would save a great deal of time if you were to read your own
summaries rather than the original text. Remember that normally summaries have
been found to be about one tenth of the size of the original text! You cannot really
afford the time to read original texts from textbooks, cases or journal articles when
you prepare for your examinations.

2.2.12.2 Tips on making good summaries

•• Try not to change the content and ideas of the original text.
•• Read the whole text (i.e., section, case or chapter) to ensure that you grasp the
main idea/ideas. You may write a statement that briefly outlines them.
•• Find the key points or details that the writer uses to illustrate or support his/her
idea or argument (your summaries must include these).
•• Then identify keywords.
•• Include definitions of key principles, theories or procedures (if any).
•• Write in simple language. There is no point in making your summary complex;
you need to understand your summary.
•• Be objective and factual. Your purpose is not to change the content or to challenge
the attitude of the writer.
•• Make sure the points in your summary are coherent. The various sources that
you use (to summarise the topic) should develop the main idea. Thus there should
be integration and synthesis of the ideas. This becomes clear when the summary
has various themes (ideas) following from the main idea/topic; hence the need
for headings and subheadings (see the section on note making above).
•• You should not look at a summary as a total replacement for the original source.
•• In most cases you will be expected to refer to the original text.

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ACTIVITY 2.10
Page to Learning unit 1 under item 1.4 and read the “Lephepane Village” story,
and summarise it through either visual or narrative notes.

Refer to the section on “banking education” under item 2.2.3 in this learning
unit and explain which study methods will most likely be embraced by this kind
of education. You may discuss this in your groups.

15 Feedback
To do the first part of this activity effectively, you need to know which points to
bear in mind when summarising a text. You also need to ensure that you know
the difference between visual and narrative summaries. The second part of the
activity requires that you first understand the concept of “banking education” and
then relate this understanding to the various study methods.

2.2.13 Dealing with assessment/testing

We have already dealt with various aspects of the exploration and fixation phases.
Now we address a number of aspects relating to the testing phase. What is entailed
here is how we assess or test ourselves as to whether we have mastered the learning
content in the preceding phases of study. In formal settings, of course, we do this
by making ourselves available for assessment by others. For example, as a university
student you would indeed make yourself available to be assessed by your professors,
lecturers or tutors.

Some of the ways in which we assess the extent to which we have learnt our subject
matter is through tests, assignments and examinations. In this section we discuss
some important points that may help you deal with this area of the study process.
These points include writing assignments, how to prepare for examinations and
writing the examinations.

Being at university suggests that it will not be your first experience of dealing with
these aspects. Before university registration you had obviously studied in your own
way, hopefully written assignments and indeed prepared and written examinations at
various stages of your school career! Our experience is that most of these were done
in a rather casual manner, with learners not really directly focused, taking time to
think about and systematically deal with the various aspects of the assessment process.

2.2.13.1 Writing assignments

NOTE: Read your Study @ Unisa booklet, the chapter on assignments and mark-
reading sheets, before you study this section.

You must prepare thoroughly before writing your assignments so that you submit
your best contribution. The following points are a few of the issues that you should
consider when approaching your assignments:

•• Read the assignment question(s) thoroughly to ensure that you know what to do.
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 LEARNING UNIT 2:  Study skills

•• Analyse the action words to determine what kind of answer you need to give.
You should, therefore, follow the instructions fully.

ACTION WORDS:
Analyse Divide into sections or elements and discuss in full.
Compare  Identify the similarities or differences between facts or examine the
differences between ideas, facts, viewpoints, etc.
Contrast Point out the differences between certain objects or characteristics.
Criticise 
Point out the good and bad characteristics and give your own opinion
after taking all the facts into account.
Define Give a short and concise definition (i.e. a summary of essential
properties) of a subject or topic.
Describe 
Name the characteristics of an object or topic. You should do this
in a logical, well-structured way.
Discuss Discuss a topic by examining its various aspects. Use a critical
approach.
Evaluate 
Give your own opinion, using certain standards as a basis, about a
topic.
Explain  Explain and clarify to ensure that the reader clearly understands you.
Use illustrations, descriptions or simple but logical explanations.22
Justify Give reasons or explanation to show that something is right, correct,
appropriate or reasonable. In this sense, you support a particular
point or issue.

•• Start your preparations in time so that you have the opportunity to do the necessary
research, participate in study group discussions, revise notes, and so on. Refer to
the earlier sections of this learning unit, especially the one on time management.
•• Do not copy your friend’s or a group member’s work. Lecturers can easily see
when a piece of work is duplicated, and this can be very irritating. It is also of
course dishonest and can result in disciplinary action being taken against you.
•• Remember that the purpose of the assignment is to make sure that you go through
the work on your own and thus are ‘‘forced’’ to work through the various sections.
•• Assignments may play a critical role in determining whether you proceed to the
next level or not. This is especially the case as they make up your semester/year
mark. Usually, your semester/year mark constitutes a percentage of your final
mark. Check what the situation is with regard to the various courses you have
enrolled for! (Read your Tutorial Letter 101 again!)
•• Complete and send the assignment before the due date. If you are to send the
assignment by post, give allowance of about three weeks between the date when
you post it and the due date. Obviously, if you choose to submit online (via myUnisa)
your assignment will reach the university instantly. Consult the relevant section
or department of the university regarding the sending of assignments and related
projects. Read your Study @ Unisa booklet on assignments and mark-reading sheets.
•• Assignments take various forms: mark-reading sheets (where normally multiple-
choice questions are asked), discussion/problem-type questions, and questions
where short and one-word answers are wanted.23
•• In case of problem/discussion-type questions, make sure you stick to the required
length of the essay.

22 Van Schoor et al Effective study 7–8.

23 See Van Schoor et al Effective study 113–121.

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Your assignment should consist of three sections:

•• an introduction,
•• a body, and
•• a conclusion.
The introduction should

•• be short
•• outline the main argument, and
•• focus on the question.
The body is the main part of your assignment and will be the longest part of your
essay. Develop your argument, supply details and examples, and support your claims
by stating relevant facts. Write in paragraphs – one idea per paragraph!

The conclusion must

•• summarise the main argument and content of your assignment,

•• focus on the question, and
•• be brief.

2.2.13.2 Preparing for examinations

Before you study this section, please read the chapter on examinations in your Study
@ Unisa booklet!

•• Physical and mental preparation:

–– get enough sleep, eat well and exercise to help you with stress.

•• Understand why you have to be tested:

–– If you know it is necessary to be tested your attitude will be more positive and
you will approach the examination with confidence.

•• Start in advance with your studies:

–– Summarise your work early in the semester so that you can save time when it
is necessary to memorise the facts.
–– Understand the work before you start memorising it, otherwise you will find
it difficult to remember what you have studied.
–– Test yourself constantly to see whether you know a certain part of the work
before you carry on.

•• If possible, go through previous exam papers, but remember that we will never
repeat a question from past papers.
•• Remember that your assignments and tutorial letters are part of the study material
for the exams.
•• Be on time:
–– Make your travel arrangements in time so that you do not stress about getting
lost or arrive at the venue late.

2.2.13.3 Writing exams

•• On the day of the examination, dress neatly. One feels more confident when one
looks neat.

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 LEARNING UNIT 2:  Study skills

•• Believe in yourself!
•• Do NOT take any notes into the exam hall.
•• Once you receive the question paper, read through it to get an idea of what is asked.
•• Plan your answers. Note the time limit! NB: SCL1501 is a two-hour paper. You
will have to write VERY fast in order to finish! DO NOT WASTE ANY TIME!
•• Do those answers you know best first and then go back to those that require
more time.
•• Write neatly! As examination markers are human beings, they may feel irritated
if they cannot read what you have written.

2.2.14 Conclusion
This is the end of Learning Unit 2. We have dealt with the various phases that
constitute the study process, and how you should approach it for effective learning.
One of the key aspects emphasised is the need to differentiate between memorisation
(banking education) and effective learning (critical education). We have emphasised
the important role of critical reflection, and the need for learning participants to act
as “subjective beings” in the learning space. For anyone to learn meaningfully and
effectively, one must have a focused mind and a sense of reflection. We should at this
point remember that no learning unit should be seen in isolation. Try to draw a link
between various learning units. For instance, you need good reading skills in order
to make summaries or to study successfully. The next learning unit deals with how
to read legal texts. We encourage you to take into account the various points that
we have discussed in this learning unit when you go through that one and, indeed,
all other learning units.

SCL1501/141


LEARNING UNIT 3 LEARNING UNIT 3

3 Reading legal texts

3.1 INTRODUCTION 24
It has been said that the skilful reader reads the lines (comprehends),
reads between the lines (interprets)
and reads beyond the lines (reacts and applies ideas).25

Outcomes
After you have studied this unit you should be able to do the following:
1. Read different legal texts such as legislation, court cases and journal
articles with understanding.
2. Differentiate between various types of judgments.
3. Explain how the legislative process works.
4. Describe the precedence system.
5. Deduce the meaning of unknown words from their context.

3.2 WHEN ARE YOU AN EFFECTIVE READER?

An effective reader is someone who can read fast, but also effectively. This means
that he or she can

•• apply different reading techniques (depending on the purpose of the reading and
the kind of text being read);
•• understand the purpose of reading a specific text and act accordingly (purposeful
reading);
•• while reading, see both the bigger picture as well as detail;
•• identify the structure of different kinds of texts;
•• see the interrelations in the text as well as with reality outside the text and link
it to known facts;
•• make the correct assumptions regarding what is not directly said (or implied) in
the text;
•• evaluate the text for its purpose, content, usefulness, objectivity and scientific
correctness;
•• interpret and understand the text. In order to do this, the reader must
–– have the physical and psychological skills to read, for example, to see, to rec-
ognise words in their context and give meaning to these words;

24 This skill is addressed in Humby T et al Introduction to law and legal skills (Oxford University Press Cape
Town 2012) and Kok A, Nienaber A and Viljoen F Skills workbook for law students 2nd ed ( Juta Cape
Town 2011) and students are encouraged to look at these sources.
25 Hafner LE Improving reading in middle and secondary schools (MacMillan New York 1974) 12.

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 LEARNING UNIT 3:  Reading legal texts

–– have a broad general knowledge and understand the meaning of words and
expressions. If a word is unknown, he/she will look it up in a dictionary and
use the meaning fitting the context;
–– understand literal and figurative speech;
–– not read word for word, but must read for meaning;
–– be able to recognise the most important facts;
–– be able to understand the nature and message of a specific article.

Just as a doctor or a mechanic needs certain instruments to do his/her job, a lawyer

or a legal practitioner needs certain ‘‘instruments’’ as well. These instruments are
words as read in legislation and court cases.

For anyone reading an Act or a court case for the first time, it would be clear that
it is different from other texts. Do not feel despondent; we will help you step by
step to master the skill of reading such texts. Although we focus on reading legal
material, remember that a lawyer does not exist as an island. A lawyer needs to read
wider than just the law. General knowledge and insight into human behaviour are
of the utmost importance.

3.3 HOW TO READ AND UNDERSTAND AN ACT OF

PARLIAMENT
An Act of Parliament is also referred to as a statute or legislation. The term “legislation”
is essentially a general term for Acts of Parliament (National legislation), Provincial
Acts (Provincial legislation) and Municipal Acts (Local legislation or by-laws).
Legislation is published in a Government Gazette. You may, therefore, find any national
piece of legislation/Act/Statute in a Government Gazette.

3.3.1 Finding an Act of Parliament

At the beginning of this study guide (see “Introduction”) we made the point that
you will be required to do things. One of the important things you will be required
to do in this part of the study guide is to find Acts of Parliament on your own.

Note that certain publishers, such as Juta and Butterworths also publish legislation.
The Juta publication is called Juta’s Statutes of South Africa, and is published annually.

Volume 1 of these publications is the index to the legislation published for a particular
year. The index is divided into three sections:

•• alphabetical list of titles: short title of the Act is used

•• subject list: keywords or subject line of the title is used
•• a chronological list of Acts: the number of the Act and its year of publication
are used

Perhaps the most convenient way of finding legislation is electronically. For example,
Juta has an electronic data base called JUTASTAT. If you have access to this database,
you can simply type in keywords and the relevant legislation will appear on the screen.

Another approach would be to access search engines and websites. For example, the
following sites may be considered:

•• Google: http://www.google.com
SCL1501/143


•• Southern African Legal Information Institute: http://www.saflii.org

•• South African Government Index: http://www.polity.org.za
In order to follow our explanation of the various parts of an Act of Parliament
below, we urge you to find Acts of Parliament, preferably the ones that we mention
as examples.

ACTIVITY 3.1
Look for, and find, the following Acts of Parliament:

•• Sea Transport Document Act 65 of 2000

•• Electronic Communications Act 36 of 2005
•• Legal Practice Act 28 of 2014

Note that you may contact a library (e.g. Unisa library), the publishers, or simply
get these on the internet.

3.3.2 Reading an Act of Parliament

When you read an Act, you look at (a) the text or Act itself; (b) the context of the Act
and (c) certain presumptions will also play a role. Look at the Acts you have found
(see Activity 3.1 above) and then study the information that follows.

Please note: In the exam you may be given any Act. You will then be expected to
know the short title, preamble, long title, purpose of the act, date of
approval, etc. The content of the Act is not relevant for this module.

The following are the components of an Act:

(a) Text
You approach an Act by reading the signed text. Let us look at the Electronic
Communication Act 36 of 2005 as an example. The English text was signed by the
President and the Act was approved on 11 April 2005. The Act was published in the
Government Gazette on 18 April 2006. Sometimes an Act becomes effective on the
same date as it is published in the Government Gazette, but at other times it is indicated
in the Act when it will become effective (see s 98 of the Act). Always make sure that
an Act is effective before referring to it. If you are not sure, you should rather consult
the Butterworth’s publication ‘‘Is it in force?’’. Use the number of the Act as well as
the year in which it was promulgated to find the relevant information.

Signed text: Before an Act can be published, it must be signed by the president after
parliament has approved it. In our example, the president signed the English copy
of the Act. This means that whenever there is a dispute concerning any part of the
Act, the English version will be the official version.

The short title of the Act is: The Electronic Communications Act, 2005.

The long title of the Act is the piece printed in bold under the word ACT. The long
title of an Act explains the purpose of the Act.

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 LEARNING UNIT 3:  Reading legal texts

After the long title of the Act you will find the preamble. A preamble is an introductory
statement in a document that explains the document’s purpose and its underlying
philosophy. However, you must note that not all Acts have a preamble.

The preamble will be followed by the table of contents of the Act, in which it is
indicated per chapter which topics will receive attention.

Chapter 1, the Definitions is extremely important. Not ALL the words in the Act are
explained, but technical and difficult terms or comprehensive phrases are explained.
It is important that the reader of the Act consults these descriptions before he or she
reads the Act. (Of course, you must refer back to this Definitions section if you come
across a word or phrase you do not understand.)

Acts are divided into sections, subsections, paragraphs and subparagraphs. This
is to help you understand the Act better and to help you with referencing. When you
refer to an Act it must look like this:

Example: S 4(1)(a)(i) of the Electronic Communications Act 36 of 2005

How does one refer to an Act? (Because legal sources contain references to Acts,
you must read a reference correctly and understand it; but you should also be able
to write it correctly).

Any Act in South Africa has a name (the short title, as explained above) plus a
number and the year of publication. For example: The Road Safety Act 29 of 1989
or the Legal Practice Act 28 of 2014.

This comprehensive reference is usually used only the first time reference is made
to the Act. When you refer to the same Act later you can simply refer to ‘‘the Act’’.
For example: The Road Safety Act 29 of 1989 (hereinafter referred to as ‘‘the Act’’).
Note there is no comma between the name and number of the Act.

Please note that there are prescribed modes of citation in the School of Law at
Unisa. These prescriptions can be found in Tutorial Letter 301, which is sent to all
law students every year.

(b) Context

Apart from the text of an Act, you also have to consider the context that gave rise
to the Act. Section 39(2) of the Bill of Rights in the Constitution26 says that a court,
in interpreting any Act, must take cognisance of the spirit, purport and objects of
the Bill of Rights.

The courts, therefore, sometimes recognise external circumstances in explaining

the reason the Act came into being. They will investigate the reasons why the Act
was necessary. They might, therefore, also consider the socio-economic, political or
historical milieu in which the Act was formulated.

26 Constitution of the Republic of South Africa, 1996. Hereinafter referred to as the Constitution.

SCL1501/145


(c) Presumptions
Apart from the rules concerning the interpretation of Acts as contained in the
Interpretation Act 33 of 1957, certain presumptions must also be taken into account.
For example:

•• Legislation is presumed not to contain meaningless sections – every word and

phrase, therefore, is presumed to have meaning.
•• Legislation is presumed not to change existing laws unless it states so explicitly.
•• It is presumed that legislation does not intend unreasonable or unfair consequences.
•• Legislation is presumed to apply to future events only and not act retrospectively.

ACTIVITY 3.2
Refer to Activity 3.1 above, and use the Act or Acts that you have found to
answer the following questions:

1. What is the short title of the Act?

2. What is the long title of the Act?
3. On which date did the President approve the Act?
4. On which date did the Act become effective?

16 Feedback
When doing this activity, you should have referred to your knowledge of how to
read and understand an Act of Parliament. The relevant information has been
discussed under the subheadings above (see (a) Text above).

3.4 HOW TO READ A COURT CASE

3.4.1 Finding a court case
As we did with Acts of Parliament (see item 3.2 above), we expect you to find the
cases on your own. It needs to be borne in mind that cases show how the courts have
interpreted certain legal questions or principles, Acts of Parliament or even common
law as they applied them to real problems or legal scenarios. Cases are reported in
various law reports (e.g. South African Law reports, Butterworths Commercial Law
reports, Juta Law Reports). You may also find them via the internet.

You may follow the process described below when trying to find a case:
(i) Using case reference: If you have the reference to the case. For example, in
Kriel v Hochstetter House (Edms) BPK 1988 (1) SA 220, you will find the case in
volume (1) of 1988, of the South African Law Reports on page 220.
*Note: SA in the reference stands for the South African Law Reports.
(ii) Using names of parties: If you have the names of one of the parties or
both, you can find the case reference by consulting the indexes of the court
cases. For example: the index to the Southern African Law Reports 1826–1946,
and Noter-up; Butterworths Consolidated Index and Noter-up to the South African Law
Reports and Juta’s Index and Annotations to the South African Law Reports. In the
“Cases Reported” (Butterworths) or “Table of Cases” (Juta), which form part
of these indexes, you will find a list of reported cases.

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 LEARNING UNIT 3:  Reading legal texts

(iii) Using a specific topic in the subject indexes: The JUTASTAT also shows a
list of the cases that have the keywords or subject line or topic for you to type in.

ACTIVITY 3.3
To do this activity you need to read the above section (3.4 above) again. Now
follow the process described there to find the following cases:

•• S v Makua 1993 (1) SACR 160 (T)

•• Molefe v Mahaeng 1991 (1) SA 562 (SCA)
•• Ex Parte Addleson 1948 (2) SA 16 (E)

17 Feedback
You were expected to access law reports following the process explained above,
and also possibly the internet/websites. You will need copies of these cases to
follow the discussion that follows.

3.4.2 How to read a court case

In this section we use three court cases as examples to explain the structure of a
reported court case. We believe that this will help you a great deal in understanding
most of the aspects of a court case. Please take note that these court cases are merely
examples, and that other court cases may differ slightly from them. You should also
remember that there are three types of reported court decisions, namely: civil cases,
criminal cases and constitutional cases.

PLEASE NOTE: The content of the cases used as examples is not relevant for the
examination. You may be given any court case; and you should
be able to answer short (not content) questions on it.

The following cases are used as examples:

(1) S v Makua 1993 (1) SACR 160 (T).27 This is a criminal case.
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA).28 This is a civil case.
(3) Ex Parte Addleson 1948 (2) SA 16 (E).29 This is a motion application where only
one person/party is involved.

3.4.2.1 Case name

Any reference to a particular case will always start with the name of that case; that is,
the names of the parties (or persons) involved in the case. Look at our first example
before reading further. Can you identify the name in this case?

(1) S v Makua (The parties are: State v Accused)

This is an example of a criminal case. In this kind of case (criminal case) the first party
is always the ‘‘S’’; that is, the state. The other party is the ‘‘accused’’. In our example

27 Hereinafter referred to as the Makua case.

28 Hereinafter referred to as the Makua case.
29 Hereinafter referred to as the Addleson case.

SCL1501/147


the accused is thus ‘‘Makua’’. He was accused of driving a motor vehicle while the
alcohol concentration in his blood exceeded the permissible limit as prescribed by law.

The ‘‘v’’ stands for ‘‘versus’’ (or against). Therefore, in this criminal case it was an
issue or case between the state and the accused party/person (i.e., Makua). You will
notice that in earlier criminal cases (i.e., cases that were heard by our courts before
1961) the letter ‘‘R’’ was used instead of ‘‘S’’. Loosely, the ‘‘R’’ stands for “Rex”, which
is the Latin for King. In other words, the prosecutions during that period (before
South Africa became a Republic in 1961) were instituted on behalf of the King or
Queen of England. This is because the King or Queen of England had sovereignty
over South Africa.

Look at our second example. Can you analyse it as in the above case?

(2) Molefe v Mahaeng (The parties are: Plaintiff v Defendant or Appellant v

Respondent)
This case is an example of a civil case (i.e. a case between citizens). In this particular
case an action proceeding was used. In action proceedings the name of the plaintiff
is given first, followed by the defendant’s. Should the matter be on appeal, the name
of the appellant will appear first, followed by the respondent’s. In this example, the
matter is heard on appeal. We can say this because the case is heard before the SCA.
The ‘‘SCA’’ in our case name stands for the Supreme Court of Appeal. Thus, the
parties are the appellant (Molefe) and the respondent (Mahaeng).

In action proceedings the procedure is started by way of a summons. This procedure

(i.e., action proceedings) is used when there is a fundamental difference between
the parties as far as the facts of the case are concerned. In our example, there is
a fundamental difference in the sense that the parties differed on who caused the
accident. Molefe said the accident was the result of Mahaeng’s negligence, and
Mahaeng said that he was not negligent.

Now look at our third example’s heading. What does it tell you?

(3) Ex parte Addleson (The parties are: Applicant and/or Respondent if any)
This case is another example of a civil case. However, here the application proceeding
has been used. In application proceedings the Latin words ‘‘Ex parte’’ (in the
application) appear before the applicant’s name. In other words, the name of the
person who is bringing the application (the applicant’s name) immediately follows
these Latin words.

With reference to our example, Mr Addleson brought an application to be admitted

as an advocate.

In application proceedings, the procedure is started by way of a notice of motion. Unlike

action proceedings, this procedure (i.e., an application proceeding) is used when there
is no fundamental difference between the parties as far as the facts of the case are
concerned. The parties, in other words, more or less agree on the facts of the case.
Usually one party, namely, the applicant, is involved, and it is that party who brings
the application. If there is another person who wants to object to the application,
then that person would be indicated as the respondent.

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 LEARNING UNIT 3:  Reading legal texts

In our example, Mr Addleson applied to be admitted as an advocate. If someone

wanted to, such a person could have objected to his (Mr Addleson’s) application,
and he/she would thus be the respondent.

3.4.2.2 Year and volume

This aspect relates to the books or bundles in which publishers report cases every year.
These books are normally called “law reports”. Thus, every year there are different
volumes wherein reported cases or court decisions appear. You will realise that in a
case name, a year appears immediately after the names of the parties (in every case).
It shows the year in which the case was reported. Since in a particular year many
cases may be reported, it becomes necessary for these cases to be reported in many
books. This is why many books (usually called volumes) of reports are published
every year. The number in brackets shows which volume of the report contains the
case that one may be looking for.

Let us look at our examples again:

(1) S v Makua 1993 (1) SACR 160 (T): This case can be found in the first volume
of 1993.
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA): This case can be found in the first
volume of 1999.
(3) Ex parte Addleson 1948 (2) SA 16 (E): This case can be found in the second
volume of 1948.

3.4.2.3 Series of law reports

There are numerous law reports that are published commercially, and these are
given different names. These law reports are identified by the abbreviations of the
different names given to them. In a case reference the abbreviations appear after
the date and volume of the report. Thus, the letters that appear after the date (or
year) and volume of the report are an abbreviation of the name of the report. It is
interesting to note that there seems to be a reason or reasons why the reports are
published under different names. It would also appear that different reports contain
different kinds of cases.

This will become clear if we look at our examples again:

(1) S v Makua 1993 (1) SACR 160 (T). SACR – South African Criminal Law
Reports. Only criminal law cases would be reported here. This is the reason
why S v Makua was reported in the SACR.
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA). SA – South African Law Reports.
This is comprehensive set of law reports and covers a variety of South African
criminal, civil and constitutional cases.
(3) Ex parte Addleson 1948 (2) SA 16 (E) SA – South African Law Reports.

There are many other specialist law reports. Here are some of them:
CLR: Commercial Law Reports
SALLR: South African Labour Law Reports
BCLR: Butterworth’s Constitutional Law Reports

It is important to note that

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•• not all civil and criminal cases are reported, only the ones (cases) that are regarded
as important.
•• no magistrates’ court cases are reported.
•• only certain decisions of the higher courts are reported.
•• all constitutional cases are reported.

3.4.2.4 The page where the report starts

We should, again, return to our examples to deal with this aspect of case reference:
(1) S v Makua 1993 (1) SACR 160 (T): This case starts on page 160.
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA): This case starts on page 562.
(3) Ex Parte Addleson 1948 (2) SA 16 (E): This case starts on page 16.

3.4.2.5 The court where the case was decided

Since there are many courts throughout South Africa, it becomes essential that the
case reference indicates the name of the court where the decision was given. This is
indicated by way of abbreviation. Thus the letter(s) appearing immediately after the
page number where the case report begins is the abbreviation of the name of the court.

You should also understand what is meant by ‘‘the court of first instance’’ and ‘‘the
court a quo’’. The phrase, the court of first instance, is used to refer to the court
in which the case was heard for the first time. The court a quo (a quo means ‘‘from
where’’) is used to refer to the court where the case was heard before it came to the
present court on appeal.

We may also look at our examples to clarify this:

(1) S v Makua 1993 (1) SACR 160 (T): This case was heard in the Transvaal
Provincial Division (T) of the High Court. The High Court in Pretoria was
referred to as the Transvaal Provincial Division (‘‘Transvaal’’ comes from the
pre-1994 situation when the RSA was divided into only 4 provinces: Trans-
vaal, Cape Province, Natal and the Orange Free State. Transvaal was roughly
the region now known as Gauteng, Mpumalanga, Limpopo and North West
Province). The court of first instance was the magistrates’ court in Middel-
burg (Mpumalanga). In other words, this is the court where the case was first
heard. In this case the court a quo is also the magistrates’ court, since this is
the court from where there was an appeal to the Transvaal Provincial Division
(see p 161J of the case).
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA): This case was heard in the Supreme
Court of Appeal. The Supreme Court of Appeal is in Bloemfontein. The court
of first instance (where the case was first heard) was the magistrates’ court
in Welkom (see p 564F). The court a quo (from where the case came to the
Supreme Court of Appeal) was the Provincial Division of the High Court of
the Free State, because there was an appeal from the magistrates’ court to the
High Court (see pp 564I and 566J).
This process may be illustrated as follows:
•• Magistrates’ court in Welkom: hears case as court of first instance.
•• Appeal from magistrates’ court to High Court: Magistrates’ court is the
court a quo in relation to the High Court.

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 LEARNING UNIT 3:  Reading legal texts

•• Appeal from High Court to Supreme Court of Appeal: High Court is the
court a quo in relation to the Supreme Court of appeal.

(3) Ex Parte Addleson 1948 (2) SA 16 (E): The Eastern Cape Provincial Division of
the High Court is where this case was heard. This referred to the High Court in
Grahamstown. The case concerns an application to be admitted as an advocate.
Such an application may only be brought before the High Court. Therefore,
the court of first instance in this case is the Eastern Cape Provincial Division
of the High Court, because this is where the case was first heard. There is no
court a quo because this case did not come from another court. Thus, you can
see that the High Court can also sometimes be a court of first instance. The
following two are some of the most common abbreviations used to indicate
specific courts. In most documents, the English abbreviation is followed by the
Afrikaans abbreviation when referring to these various courts. It is important
to mention that although the Constitution recognises South Africa’s eleven
official languages, English and Afrikaans still dominate the legal system more
than 25 years into the post-colonial/apartheid dispensation. It is clear that a
lot of work still has to be done to decolonise the system:
CC : Constitutional Court (Johannesburg)
SCA: Supreme Court of Appeal (Bloemfontein). Replaces the Appellate
Division, which was abbreviated by ‘‘A’’.

There are currently 13 High Courts. The Renaming of High Courts Act, 2008 replaced
the old apartheid-era names of the divisions.

COURT SEAT

Eastern Cape High Court, Bisho Bisho

Eastern Cape High Court, Grahamstown Grahamstown (Makhanda)

Eastern High Court, Mthatha Mthatha

Eastern High Court, Port Elizabeth Port Elizabeth

Free State High Court, Bloemfontein Bloemfontein

KwaZulu-Natal High Court, Durban Durban

KwaZulu-Natal High Court, Pietermaritzburg Pietermaritzburg

Limpopo High Court, Polokwane Polokwane

Mpumalanga High Court, Nelspruit Nelspruit (Mbombela)

North Gauteng High Court, Pretoria Pretoria

North West High Court, Mafikeng Mahikeng

Northern Cape High Court, Kimberley Kimberley

South Gauteng High Court, Johannesburg Johannesburg

Western Cape High Court, Cape Town Cape Town

The “Superior Courts Bill” was reintroduced to Parliament in June 2011. The Bill
would restructure the High Courts into a single High Court of South Africa divided

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into nine divisions, one for each province. In provinces that currently have multiple
high courts, one will become the main seat of the division with jurisdiction over the
whole province, and the others will become local seats with concurrent jurisdiction
over some part of the province. The divisions and seats to be established under the
bill are as follows:

DIVISION MAIN SEAT

Eastern Cape Division Makhanda

Free State Division Bloemfontein

Gauteng Division Pretoria

KwaZulu-Natal Division Pietermaritzburg

Limpopo Division Polokwane

Mpumalanga Division Nelspruit (Mbombela)

Northern Cape Division Kimberley

North West Division Mahikeng

Western Cape Division Cape Town

It was understood that until the Limpopo and Mpumalanga Divisions are established,
the Gauteng Division would act in their place, with circuit courts being held at
Polokwane and Nelspruit. It is now history that both Limpopo (Polokwane) and
Mpumalanga (Nelspruit) Divisions have already been established.

3.4.3 The structure of a reported decision

Here we deal with the way in which a case is set out or outlined. In other words, we
are going to focus on the structure of a decision (or case).

(i) Judges’ names

The name(s) of the judge(s) appears (appear) under the name of the court where the
matter was heard. The letters that appear after the names of the judges are not the
initials of the judges (or abbreviations of the judges’ first names). They indicate the
title of the judge. Thus, ‘‘J’’ stands for ‘‘Judge’’.

Up to November 2001, the titles of the judges in the different courts were indicated
as follows (the English is followed by the Afrikaans version). Once again, we need
to re-register the concern around the continued use of English and Afrikaans at the
exclusion of African (indigenous) languages in this African country.

P President

DP Deputy President

J Judge/Justice

CJ Chief Justice

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DCJ Deputy Chief Justice

JA Judge of Appeal

AJA Acting Judge of Appeal

JP Judge President

DJP Deputy Judge President

J Judge

AJ Acting Judge

In November 2001, an amendment to the Constitution changed the titles of the

judges of the Constitutional Court and the Supreme Court of Appeal. The titles of
the judges of these courts are now indicated as follows:

CJ Chief Justice

DCJ Deputy Chief Justice

J Judge/Justice

P President

DP Deputy President

JA Judge of Appeal

AJA Acting Judge of Appeal

JP Judge President

DJP Deputy Judge President

J Judge

AJ Acting Judge

Note that the titles of the judges of the High Courts remain unchanged. Let us look
at our examples in this regard:
(1) S v Makua 1993 (1) SACR 160 (T)
Goldstein J and Mahomed J – both Goldstein and Mahomed held the office
of judge (i.e., they were both judges). See page 160 of the case.
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA)
Hefer JA, Zulman JA, and Melunsky AJA – Hefer and Zulman were both
judges of appeal, and Melunsky was an acting judge of appeal (see p 562 of
the case).
(3) Ex Parte Addleson 1948 (2) SA 16 (E)
Pittman JP and Gardner J – Pittman was a judge president and Gardner was
a judge (see p 16 of the case).

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(ii) Date on which the case was heard

The date on which the matter was heard is normally written, or rather it appears,
under the name or names of the judge or judges who presided over that case. In this
respect, you may look at our examples:

(1) S v Makua 1993 (1) SACR 160 (1): 3 November 1992 (see p 160).
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA): 15, 25 September 1998. This case was
heard on two days: 15 and 25 September 1998 (see p 562 of the case).
(3) Ex Parte Addleson 1948 (2) SA 16 (E): 5 February 1948 (see p 16 of the case).

(iii) Catch Phrases (flynotes)

The catch phrases, also called “flynotes”, are the most important points with which
the judgment is concerned. The catch phrases are given in point form and are
separated by dashes. You use the catch phrases of a case to get a rough idea of what
the case is about. Other than this aspect, the catch phrases have very little value.
The publishers compile the catch phrases in such a way that they do not form part
of the judgment itself.

Look at our three example cases and identify the catch phrases from each one.

(iv) Headnotes
The headnotes are also written by the editor of the law reports, who is employed by
the publishers. The headnote is a summary of the case. It includes all the aspects
of the case that the editor considers to be important. It usually includes the area of
law that the case is concerned with as well as the ratio (see below) of the case. Some
sentences in the headnote use the word “held”. This word indicates a finding of the
court. It usually takes the following structure or format: ‘‘The court held that ...’’.
The headnote is useful because it gives you an idea of what the case is all about. You
should not always rely totally on the headnote, because the editor’s summary may
be incomplete or inaccurate.

Please identify the headnotes in the cases that you found when doing Activity 3.3
above.

(v) Legal representatives

The names of the legal representatives, in other words, the persons who represented
the parties in court, appear after the headnote. The term, ‘‘legal representatives’’
refers either to advocates or attorneys (i.e. legal practitioners). If you look at our
three examples you will notice that in the first case (Makua case) there is someone
who appears for the state and someone else for the appellant. This is on page 161
of the case. In the second case (Molefe case) there are also two legal representatives
who appear for the appellant and the respondent respectively. This can be seen on
page 563 of the case. However, there is only one legal representative in the third
case (Addleson case), who appears for the applicant. You may see this on page 16
of the application.

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(vi) Summary of heads of argument

The summary of heads of argument is a summary of the arguments and authorities
that the lawyers presented to the court. However, this does not always appear in all
cases. Now that we have informed you about summary of heads of argument, you
may be asking yourselves “what are heads of argument”? Heads of argument refer to
a summary of the principal points of submission you intend to make. The purpose
of heads of argument is to set out arguments in a clear, concise and convincing way.
Heads of argument should acknowledge authorities you intend to rely on, whether
in footnotes or text. Let us look at our examples:
(1) S v Makua 1993 (1) SACR 160 (T)
This case does not have a summary of heads of argument.
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA)
In this case only a short list of cases cited (or quoted by) the lawyers is given:
Banderker v Marine & Trade Insurance 1981 (2) PH J54 (A)
Buckman v SA Railways & Harbours 1941 EDL 239 at 241
Elgin Fireclays Ltd v Webb 1947 (4) SA 744 (A) at 749–50
Galante v Dickenson 1950 (2) SA 460 (A) at 465
Jones NO v Santam Bpk 1965 (2) SA 542 (A). (See pp 563 and 564.)

(3) Ex Parte Addleson 1948 (2) SA 16 (E)

Here, the summary of the argument put by Mr Addleson’s advocate is given:
“The language on which the decision in Ex parte Ormonde (1940, C.P.D.
287) was based is that of Act 16 of 1873 sec. 20; the language of the
present Act, 39 of 1946, sec. 1, is different and would justify a distinc-
tion. In the Orange Free State the language of the relevant legislation is
different with the result that Ormonde’s case ... and Act 39 of 1946, sec.
1.” (See p 16 of the case.)

(vii) Date on which judgment is given

A case may sometimes be heard on one day and the judge is able to give his/her
decision on the same day. However, it often happens that the judge is not able to give
his/her judgment on the same day on which the case is heard. In such a situation the
case would, therefore, be heard on one day (as discussed above) and then judgment
given on another day.

When judgment is given on a different day to the day on which the case was heard,
the words ‘‘Cur adv vult’’ will appear. This is short for the Latin curia advisari vult,
which means ‘‘the court wishes to consider the verdict’’. These words are followed
by the word postea, which is the Latin for ‘‘afterwards’’. After postea you will see a
date. That is the date on which the judgment was given. Let us consider this in the
light of our examples:
(1) S v Makua 1993 (1) SACR 160 (T)
The words cur adv vult and postea do not appear in this case. This is because
judgment was given on the same day on which the case was heard.
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA)

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Cur adv vult, as already explained, means that the court wishes to consider its
verdict. Postea (September 25) means that it gave its judgment afterwards on
25 September (see p 564 of the case).
(3) Ex Parte Addleson 1948 (2) SA 16 (E)
The words cur adv vult and postea do not appear. This is because judgment was
given on the same day on which the case was heard.

(viii) Judgment
If in a particular case the word postea appears, the name of the judge will then appear
again below it. Where you see this name it is the point at which the judgment starts.
The name of the judge is given to indicate which judge gave the judgment, if there
is more than one judge hearing the case.

Look at our examples again:

(1) S v Makua 1993 (1) SACR 160 (T)

Mahomed J: “The appellant was found guilty in the magistrate’s court at Middelburg
on a charge of contravening ...” (See p 161 of the case.)

(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA)

Melunsky AJA: “At about 11:00 on 11 August 1991 the appellant and the respondent
were driving their respective motor vehicles in opposite directions ...” (See p 564
of the case.)

(3) Ex Parte Addleson 1948 (2) SA 16 (E)

Pittman JP: “ This is an application for admission as an advocate and the provision
of the law, on which it is based, is sec. 1 of the Admission of Advocates Amendment
Act, 39 of 1946 ...” (See p 16 of the case.)

Most often the judgment will take the following form:

(a) First, the facts are given.
(b) Second, there is a discussion of the relevant legal principles.
(c) Third, the existing law is applied to the facts of the case.
(d) Fourth, a decision is given in the light of the relevant legal principles.
(e) Fifth, an order is given.
(f) Finally, an order regarding costs is made.

Different kinds of judgments: Majority judgments, minority judgments and

separate judgments

A case may sometimes be heard by more than one judge. If the judges are in
agreement, one judge hands down the judgment. This judgment represents the
opinion of all the judges on the bench. Judges may also disagree with one another,
and when this happens more than one judgment can be handed down. We would,
in such situations, get different kinds of judgments. We are now going to explain
each of these judgments briefly:

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Majority judgment
A majority judgment means that the majority of judges who have heard a particular
case give the same judgment based on the same reasons. One judge gives the judgment
and the others concur (agree) with it. The ratio decidendi of the majority judgment
creates the precedent to be used in future cases, and is binding.

Minority judgment
The minute we speak of majority judgments we suggest (i.e., imply) that there must
also be cases in which there are minority judgments. In a minority judgment, the
judge disagrees with the majority and reaches a different conclusion. In such a case
a judge differs from the majority of judges as far as the judgment and the reasons
for the judgment are concerned. Such a judgment does not establish a precedent. It
can, however, have persuasive force in the future. It is also possible for a judge to
concur (or agree) with the minority judgment of another judge.

Separate judgment
Sometimes a judge does not disagree with the conclusion of the other judges, but has
different reasons for his/her judgment. Any reasons added by the judge for his/her
judgment, do not establish a precedent. The ratio decidendi is only to be found in the
majority judgment. It is also possible for a judge to concur (agree) with the separate
judgement of another judge.

Did you notice that all our examples (the given cases) are majority judgments? In other
words, one judge passed a particular judgment and the others concurred (agreed)
with it. The name(s) of the judge(s) that concurred appears/appear at the end of the
judgment. Look at our examples (cases):

(1) S v Makua 1993 (1) SACR 160 (T)

In this case there were two judges who heard the matter, Mahomed J handed
down judgment and Goldstein J concurred. (See p 164 of the case.)
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA)
In this case there were three judges who heard the matter. Melunsky AJA
handed down judgment and Hefer JA and Zulman JA concurred. (See p 570
of the case.)
(3) Ex parte Addleson 1948 (2) SA 16 (E)
In this case there were two judges who heard the matter. Pittman JP handed
down judgment and Gardner J concurred. (See p 18 of the case.)

Since there were no minority or separate judgments in our examples, but only majority
(concurring) judgments, we advise that you look at the following criminal case to
illustrate minority and separate judgments:

Illustration
S v Laurence, Negal and Solberg 1997 (4) SA 1176 (CC)
This case was a decision of the Constitutional Court. The case was heard by
nine judges. They were Chaskalson P, Langa DP, Ackerman J, Goldstone J,
Kriegler J, Madala J, Mokgoro J, O’Regan J and Sachs J.

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The case was about many issues. One of the main issues was the selling of al-
cohol on a Sunday. Parliament had forbidden the selling of alcohol on Sundays
and other Christian holidays. Laurence, Nepal and Solberg had broken this law
by selling alcohol at a time when this was not allowed. The State prosecuted
them and they argued, in the Constitutional Court, that parliament was favour-
ing the Christian religion because it did not allow the selling of alcohol on the
Christian holy day – Sunday.
Chaskalson P wrote the judgment. He held that the connection between the
Christian religion and the restriction against selling alcohol on Sundays was
too weak to call it an infringement of religious freedom. Three other judges
concurred (agreed) with him and so the four judges gave a majority judgment.
The three concurring judges were Langa DP, Ackerman J and Kriegler J.
Sachs J wrote a separate judgment. He also felt that the law forbidding the
sale of liquor did not breach the Constitution, but he had different reasons for
thinking that, which is why he gave a separate judgment. Mokgoro J concurred
with Sachs J. This means that Mokgoro J agreed with the reasons that Sachs J
gave. Mokgoro J did not agree with the reasons that the majority gave, but did
agree with the decision of the majority.
O’Regan J wrote a minority judgment. She felt that the law that did not allow
the sale of alcohol on Sundays was an infringement of the Constitution. She
argued that this legislation was showing some sort of support for Christianity
that it did not show for other religions and that this was against the Constitu-
tion. Goldstone J and Madala J concurred with her judgment. This means that
they agreed with O’Regan J’s decision and that they disagreed with the decision
of the majority of the judges and with the decision of Sachs J and Mokgoro J.
It therefore seems that there were three judgments in this case: a majority
judgment, a separate judgment and a minority judgment. In each of these
three judgments some of the judges agreed with the judge who handed down
the decision.

(ix) Order of the court

(1) S v Makua 1993 (1) SACR 160 (1)
‘‘In the result I would make the following order:
1. .. The conviction of the appellant is confirmed.
2.... The sentence imposed by the magistrate is set aside and substituted by the
following:
(a) The accused is sentenced to pay a fine of R1 000.
(b) In addition to the fine the accused is sentenced to six months’ imprison-
ment, the whole of which is suspended for five years on the condition
that the accused is not convicted of contravening s122 of the Road
Traffic Act 29 of 1989, or any statutory substitution thereof, commit-
ted during the period of suspension.
(c) In terms of s 55(b) of Act 29 of 1989 the accused’s driving licence is
cancelled.’’30
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA)
‘‘The result is that the appeal fails and is dismissed ...’’31

30 See page 164 of the Makua case.

31 See page 569 of the Molefe case.

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(3) Ex Parte Addleson 1948 (2) SA 16 (E)

‘‘The application, consequently, must be refused ...’’32

(x) Order as to costs

After a case has been completed, the costs must be paid. The costs are the expenses
involved in the case. Legal costs usually include both lawyers’ fees, and the expenses
involved in running a case, such as fees for subpoenas, witnesses, and getting copies
of records, and expert reports. These expenses are called “disbursements”. In some
kinds of cases, the amount of legal costs that you can be ordered to pay is set down
in court rules. For example, default judgments, however, in most cases the court will
order costs to be paid “as agreed or assessed”. This means that the parties can try
and come to an agreement about the amount of costs that should be paid. If they
cannot reach an agreement, they get a cost assessment to decide what the amount
should be. The presiding officer (i.e., the judge or magistrate) makes an order.
This order will stipulate which party has to pay which costs. Sometimes one party
is ordered to pay both his own legal representative’s account, as well as the other
party’s expenses. Sometimes each party must pay his/her own costs, or one party
may have to pay a certain portion of his/her own costs and the other party pays the
rest. These orders are called ‘‘orders as to costs’’ and are given at the end of a case.
Sometimes, no order as to costs is made. This means that no party is awarded costs
against the other. Then each party pays his/her own legal costs.

Now let us see how this part of the judgment (i.e., order as to costs) is manifested
in each of our examples:
(1) S v Makua 1993 ( 1 ) SACR 160 (T)
No order as to costs was made in this case.
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA)
The result was that the appeal failed and was dismissed with costs. In other
words, the appellant had to pay all costs.33
(3) Ex parte Addleson 1948 (2) SA 16 (E)
No order as to costs was made in this case.

(xi) Attorneys
The names of the attorneys of the parties involved in the case appear after the
judgment.
(1) S v Makua 1993 (1) SACR 160 (T)
Appellant’s Attorney: Mike Mphela, Groblersdal.
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA)
Appellant’s Attorneys: Du Randt & Louw, Kroonstad; Schoeman, Maree Inc,
Bloemfontein.
Respondent’s Attorneys: Jac S Kloppers & De La Rey, Welkom; EG Cooper
& Sons Inc, Bloemfontein.
(3) Ex Parte Addleson 1948 (2) SA 16 (E).
Applicant’s Attorneys: Nailand & Green.

32 See the Addleson case page 18.

33 See the Molefe case page 569.

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(xii) Letters of the alphabet

Along the side of every page of the judgment are consecutive letters of the alphabet.
These letters are a reference tool in the sense that they help legal practitioners
(lawyers), magistrates and judges refer to specific parts of a judgment.

Below, we show you how to use these letters of the alphabet to refer to certain parts
of the judgment. With the help of our three examples (the cases), we give an extract
from that particular part of the case:
(1) S v Makua 1993 (1) SACR 160 (T) at 162G
“The Magistrate also concluded that before the applicant began drinking he
knew very well that he was going to drive the vehicle and the consequences
were foreseeable ...”
(2) Molefe v Mahaeng 1999 (1) SA 562 (SCA) at 565I
“After the collision Khatiti approached the respondent’s vehicle. According
to his evidence, there ...”
(3) Ex Parte Addleson 1948 (2) SA 16 (E) at 17
Here there are no alphabetical letters along the side of the reported case. The
reason for this is that the case was reported a long time ago (1948).

PLEASE NOTE: You need not study the example cases in detail for the examination.
You only need to master the structure and the reading of a court
case, since in the examination you may be asked to read and
answer questions on a court case similar to those on Pinchin
and another NO vs Santam Insurance Co Ltd 1963 (2) 254 (WLD).

3.5 LATIN TERMS

By now you should have discovered that, when reading legal texts of various kinds,
there is frequent use of Latin words and /or phrases. It is, therefore, very important that
you familiarise yourself with them. The following text contains some of the common
Latin phrases used in legal texts. Further, note that Latin words or phrases are written
in italics or underlined when used in our normal texts (e.g. cases, reports and Acts).

Before we discuss how to read a court case, it is necessary to note certain Latin
phrases that may be included. This aspect confirms the point we made earlier about
the influence of Roman-Dutch legal systems in South Africa. Otherwise, there is
no other explanation or justification for Latin words and phrases to still be clinging
to the South African legalese or legal jargon. In fact, from an Afrocentric point of
view, we should be having impactful African idioms embedded in our legal system
(especially legal jargon) such as “Molato ga o bole” (No matter how long it takes, justice
will prevail) or “Letsogo la molao ke le le telele” (No-one is above the law). In this light,
you are encouraged to acquaint yourselves with the proceedings of African courts
(traditional courts, lekgotla, kgoro, tinkundla or inkundla) in your different communities
or villages (if possible).

Having said this, it is important to indicate that it is unavoidable that during your
encounter with the texts and also in the world of legal practice, you will come across
some of the Latin words or phrases from the following list. We cite these most
frequently used Latin terms with their meanings:

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a fortiori the more so

a quo whence; from which (e.g. court a quo)
ab initio from the beginning/start

ad hoc for a specific occasion; for the present purpose

ad hominem relating to the person
ad idem of one mind; unanimous
ad infinitum for ever, without end
amicus curiae friend of the court (an advocate requested by the
court to appear in a certain case)

animus Intention
animus iniuriandi intention to injure
animus testandi intention of making a will

audi alteram partem to give a person the chance to state his/her side of
the matter; both sides of the story are heard
bona fide in good faith (and honest intention)
boni mores good morals

causa cause; consideration; inducement; motive; reason

for doing something
contra bonos mores against good morals
culpa fault, neglect, negligence
cur adv vult (curia advisari the court wishes to consider its verdict, reserves
vult) judgement
curator ad litem person appointed by the court to assist another in
litigation
curator bonis curator of property

de facto in fact, in deed, as a matter of fact

de iure of right, in law, judged by the law

de minimus non curat lex the law does not concern itself with trifles
de novo afresh, anew
diligens paterfamilias reasonable person
ex contractu from a contract

ex delicto from a delict

ex lege by force (operation) of law, as a matter of law, ac-

cording to the law
id est it is, namely

in absentia in his/her absence

in camera behind closed doors, in chambers, in private, e.g.

a court that is not open to the general public

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in casu in the present matter

infra below

in re in the case of
inter alia among others
interim meanwhile

inter partes between the parties

ipso facto within the powers/competence of ...

ipso iure by the law as such

ius a right, the law

locus standi right to be heard

mala fide in bad faith

mutatis mutandis with the necessary amendments, changes
nomine officio (NO) in official capacity
obiter dictum a remark in passing
pendente lite pending the case
per se by himself, on its own
postea afterwards
prima facie at first sight, on the face of it
pro Deo literally ‘‘for God’s sake’’, defence at state expense
for an accused lacking the means to brief counsel
pro non scripto as if it has not been written

pro rata proportionally

quantum amount (e.g. of damages)
ratio decidendi reason for the court’s ruling
spes hope, expectation
stare decisis abide by decided decisions
sub iudice a trial that is still pending
sui generis peculiar to itself, distinctive
subpoena summons, e.g. in a criminal case a witness is sub-
poenaed to give evidence in the court
supra above

ultra vires exceeding authorisation

verbatim word for word, literally

versus against
vice versa the other way round
viva voce verbally e.g. oral evidence

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volenti non fit iniuria to one consenting no wrong is done

vide view

3.6 READING AND UNDERSTANDING A JOURNAL ARTICLE

If you have the name of an article as well as the author, you can find the article in
the library.

But before you start reading it, there are a few points to consider:

•• When was the article published? (i.e. how old is the article, is it relevant?)
•• Was it published before or after the new Constitution?
•• Who is the author/writer of the article? Is he/she an authority on the topic? Has
he/she written other articles in the same field as well?

The structure of an article

A good article consists of the following:

•• a title
•• an abstract
•• an introduction
•• arguments
•• conclusion
Reading an article

•• Read the title as well as the abstract.

•• Skim-read the article.
•• Read the article again for detail.
•• Read the article again including the footnotes, as the footnotes sometimes contain
valuable information.

Think about the article and answer the following questions in your head:

•• Which aspects is the author addressing and why?

•• Which solutions are given?
•• Is it relevant information that can make a difference?
•• Which sources are referenced and are they authoritative?
Remember, you do not have to agree with an author, even if the author is an authority
on the specific topic. Try to get different views on the same topic – footnotes can
help you with this. If you differ from what you have read you will have to substantiate
your arguments.

3.7 CONCLUSION
This is the end of Learning Unit 3. Here we have explained how the reading of legal
texts differs from that of any other texts. Examples of legal texts considered in this
learning unit are Acts of Parliament (sometimes called statutes or legislation), case
law or court cases and other texts such as journal articles. However, what is also
important in this area is the skill of finding these texts. Once again, do not study

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this unit in isolation. Various legal skills complement each other. For instance, you
cannot read an Act, a court case, or an article without knowing where and how to
find it. Finally, you should take note of the fact that African/customary law is also
part of South African law. However, in terms of the 1996 Constitution (which has
a huge bias for European Law), African Law may only be applied as long as it is
not inconsistent with the Bill of Rights or the Constitution. It is in this sense that it
becomes important for law students in African societies to familiarise themselves
with the legal system/s of various indigenous communities.

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 LEARNING UNIT 4 LEARNING UNIT 4
4 Communication and Litigation Skills

4.1 INTRODUCTION
In Learning Unit 5 (Legal actors) we introduce you to the various role players in the
legal process. You will, hopefully, know that most of them are generally referred to
as lawyers. Following the Legal Practice Act 28 of 2014, the preferred general term
for lawyers (advocates and attorneys) is “legal practitioners”. The Legal Practice Act
became fully effective in 2018. In terms of this Act, which governs the whole legal
profession, there should, strictly speaking, no longer be reference to “attorneys” and
“advocates” as was the case before 2018. An important point needs to be made that
practically the differentiation of roles of legal practitioners is still relevant. Legal
practitioners (advocates and attorneys) who wish to work directly with clients/
members of the public will need a fidelity fund certificate, whereas those who work
on referral or briefs (from other legal practitioners) may appear in the High Courts
(without any need for the fidelity fund certificate). This latter category of legal
practitioners is commonly known as “advocates”. We should, however, expect that
people will continue to make such distinctions, especially with regard to titles such
as “Advocate” and “SC”. It will take some time for this new set-up to sink into the
minds of many people, including legal practitioners themselves and the ordinary
members of the general public. The legal practitioners’ daily activities revolve around
applying the law or articulating various aspects of the law. In this learning unit you
are exposed to a variety of aspects that relate to communication in law. Writing skills,
in the context of law, are not discussed in this learning unit as they form part of the
syllabus of another module in the LLB programme.

Outcome
After studying this unit you should be able to do the following:
1. Explain the importance of non-verbal communication.
2. Conduct interviews, especially with clients and witnesses.
3. Discuss the various styles of listening.
4. Explain the importance of logic in making legal arguments.
5. Apply the principles of litigation and advocating in a court of law.

As we have just suggested, communication forms the core of any legal practitioner’s
or lawyer’s work. Where a military combatant will mostly rely on his/her ammunition
as his/her key tools, a lawyer will most definitely rely on words as his/her main tools
of the trade. A lawyer will need to use language effectively to consult with clients and
witnesses, to study and research the law, to present evidence before court, argue the
case, interact with other lawyers or institutions, give legal opinions or advice and also
to write a research paper or an academic article. A career in law therefore demands
a lot from the practitioner in terms of his/her communicative competence, which
includes verbal as well as non- verbal communication. It is, therefore, important

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that you learn the key elements of communication that are essential to the lawyer’s
daily life as a practitioner.

4.2 NON-VERBAL COMMUNICATION

We hope this part of the learning unit will make you excited about the practical
legal world and thus motivate you to work hard so that you become a very efficient
lawyer. As you will obviously notice when working through the learning unit on
“legal actors”, there are many career possibilities in law. Whichever role or path you
follow in law, we are confident that you will become a highly successful role player:
be it as a law lecturer, legal advisor or any legal practitioner.
NOTE: 
T his module is a skills module that was written specifically for law
students. We do not intend to provide a comprehensive discussion on
non-verbal communication. Thus, only a FEW aspects that we think are
important to lawyers or students of law are discussed.

4.2.1 What is non-verbal communication?

People communicate with each other through the spoken word (sounds) or written
words that have specific meanings. This way of communicating is known as verbal
expression. However, it is also possible to send messages to our interlocutors (fellow
users of the language) without saying (or writing) any words. For instance, while you
are talking with your mouth, your body, for example, your attitude, your face and your
clothes, may also send out their own messages. This ‘‘language’’ you speak without
words is called non-verbal communication. Non-verbal communication is, therefore,
a way of communication (sending and/or receiving messages) without using words.

4.2.2 The importance of non-verbal communication for a lawyer

The importance of non-verbal communication to a lawyer’s world of work lies
in the fact that legal practice is based on persuasion and credibility. By way of an
example, you have to persuade your client somehow that you can win the case, or
you have to persuade the presiding officer (magistrate/judge) to accept your line of
argument. Non-verbal communication plays a very important role in this regard. It
is in this respect that it is often said that non-verbal communication can make or
break a lawyer. You should use non-verbal communication to give credibility to your
appearance in court while arguing a matter. In other words, your body language,
attitude, clothes, and so on can help you on your route to success, or it can be the
reason for your failure as a lawyer.

Research has shown that 35% of your message is communicated verbally, while 65% of
the message is transmitted through non-verbal communication. Verbal communication
usually transfers information or facts, while non-verbal communication transfers
feelings, emotions and attitude.

4.2.3 Examples of non-verbal communication

Clothes:
Our appearance, especially as presented by the clothes we wear, obviously sends
messages to the outside world about us. This might be in terms of our approach,

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stature or attitude to the next person. For a lawyer, it is quite safe to wear formal
clothes. Although no one expects men to wear a suit or women to wear stockings every
day, you should remember the legal world is a professional world. You need to dress
professionally. People expect their advocate or attorney to look like a professional.
Dress for your profession and success.

Attorneys, who have to wear a gown in court, should be dressed neatly under the
gown. If you are an advocate you should wear only black and white under your
gown and bib.

Body language:
Your body language must complement your professionalism. Act with confidence.
You should cut a professional posture during a consultation or interview with clients
or witnesses. The same should apply when you are in court. If you are to be seated,
make sure that you sit up straight. Avoid doing things such as chewing bubble gum.
When you are in court, you should stand up straight and pull your shoulders back
so that you create a dynamic look.

There are some perceptions that are often created by some of the things we do with
parts of our bodies. For example, if you stand with your hands behind your back,
the message is that you think you are better than the rest. If your hands are on your
hips, it might be interpreted as being aggressive. If you fold your arms in front of
you, it might be a signal that you are on the defence and are closing up.

Eye contact:
Look the judge or magistrate in the eye when you make your submissions. Do not
fidget with papers while speaking – be prepared. Look the accused or a witness in
the eye when you ask them questions. Show respect to everyone. Up to 87% of all
information is conveyed through the eyes, only 9% is conveyed through the ears
and 4% through the rest of the senses.

Facial expressions:
As we already indicated, 65% of what you are saying is transmitted through non-
verbal communication. Be careful what your face tells others about your feelings.
Do not make the right sounds while looking bored. Use your face to your advantage.
People can see whether you care or not. Show sympathy and interest – your client
wants to see that you are involved in his/her case. Never look at your watch while
interviewing a person.

Tone of voice:
Vary your tone of voice. Speak loud enough so that everyone can hear you, especially
in court. Speak louder when you want to emphasise something and a little bit softer
when you want to create an atmosphere. Repeat a person’s words if you want to
stress a particular point.

The above are a few examples of non-verbal communication techniques a lawyer may
use. Remember, your clients have to believe in you, otherwise they will not pay your
bills or call for your services again. In court you can use non-verbal communication
very effectively. Keep in mind that you want to win the case. People support winners!

Just remember that non-verbal communication also includes other professional

behaviour and service delivery such as answering phone calls and responding to

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messages. The quality and promptness of the letters and accounts you send out are
a reflection on you. Be punctual with appointments and paperwork. Ultimately your
whole image must be professional.

Illustration:
Now read the following extract from a TV interview involving a grade 11 learner
(Mbuyiseni Ndlozi) and a news anchor, Tracy Going, and reflect further on the
concept “non-verbal communication”.
Young Communicator’s Award in 2002 (An SABC interview of a grade 11
learner by Tracy Going) (https//www.youtube.co/watch? v+ZuAO6uoF8sE
data accessed 10 December 2017)
Tracy Going: How important do you think it is though for people to be able
to speak English properly?
Mbuyiseni Ndlozi: I think association brings assimilation.
Tracy Going: Say that again, association brings?
Mbuyiseni Ndlozi: Brings assimilation, if you associate with people who talks
English too much, and maybe, eh, to speak, eh, perfect English you will, eh,
talk or speak perfect English.
Tracy Going: But you obviously don’t speak English at home.
Mbuyiseni Ndlozi: Yes, but heh, many times, eh, my friend at home some-
times at church speak English.
Tracy Going: And what school are you at?
Mbuyiseni Ndlozi: Eh, in Khutlotharo, Zone 3 Sebokeng.
Tracy Going: So, you are not English sch, were you not in eh, you are in a
township school?
Mbuyiseni Ndlozi: Yes, it’s a township school.
Tracy Going: In my link introducing you, eh, the script said that in order to
be successful in life you need to be able to speak English. Would you agree
with that or you disagree with that?
Mbuyiseni Ndlozi: I will disagree with that. Yeah, in order to success in life
you don’t have to speak English, but you have to have a purpose. If you have
a purpose in life you will go somewhere. How many people do we have who
can’t speak, I mean they can’t just talk but they are successful. So I don’t think
in order to be successful you need to speak English.

18 Feedback
The interview, in essence, stresses the crucial point that communication does not
necessarily have to do with language. It also exposes the idea that communication
is not really about a particular language, regardless of the status attached to that
specific language. Many people confuse the act of communicating with the ability
to speak English. In fact, communication is simply about the transportation/transfer
of messages/information from one person to another. Messages may be sent and
received even through other means, such as gestures, facial expressions, signs
and so forth. As already discussed, these modes of communication are known
as “non-verbal communication”.

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ACTIVITY 4.1
For this activity, you have to observe a formal communication situation (e.g.
bank, law firm, post office) and note how the various actors in that situation use
non-verbal communication. Write a commentary on each of the role players in
that speech context, and say why you think non-verbal communication was used
effectively or not.

19 Feedback
You needed to have firstly identified the speech context, say, you and your bank
manager, and describe what the meeting was about. It would be very good to
state how he/she was dressed, how she/he greeted you, his/her eye contact, tone
of voice, etc. In fact, it would be helpful to consider the various aspects we have
just discussed in this section in relation to that particular situation. One of the
most interesting and relevant situations to observe would be a courtroom situa-
tion where you would observe how various role players use the various aspects
of non-verbal communication.

4.3 INTERVIEWING
We indicated at the beginning of this learning unit that a variety of aspects
in communication will be covered. It is important to note that all the different sub-
sections (non-verbal communication, interviewing, listening and logic) should not
be seen in isolation. All aspects together will make you a good legal practitioner or
lawyer.

4.3.1 Why interviewing skills?

We believe that a major part of what a legal practitioner does, in various respects,
rests on interviewing. So many situations in his/her working life require a legal
practitioner to apply his/her interviewing skills. For example, as a lawyer, you need
interviewing skills because you act for someone else (your client). It thus makes sense
that you get your client’s story before taking any action to advance his/her interest.
It is the nature of the profession that you will have to find more information from
other people who may help in your preparation, appearance in court or even when
you give legal advice. Thus you will need these skills when you, for example, consult
with witnesses, experts or other role players on a specific matter or issue.

It is important to know what kind of questions to ask, how to ask these questions,
and how to conduct yourself when interacting with these people in order to obtain
the information relevant for your case. Thus, your ability to use various aspects of
non-verbal communication will boost the effectiveness of your interviews.

The following are some of the functions of an interview:34

•• To establish the interpersonal dimensions of the lawyer-client relationship;

34 Maughan C and Webb J Lawyering skills and the legal process 2nd ed (Cambridge University Press London
2005) 110.

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•• To identify the issues and obtain sufficient detailed information to advance the
matter;
•• To determine the client’s objectives, and so far as possible, advise accordingly;
•• To prepare the way for further action on behalf of the client.

4.3.2 Preparing for interviews

We need to reiterate that it is important to prepare thoroughly for your interviews
with clients and witnesses. In short, this will make you know what you expect from
the interview. In other words, you will be better placed to ask questions that will
elicit relevant information from your interviewees. You need to keep in mind that it
is on the basis of initial interviews in particular that you will be able to do further
research on the matter in order to advance the case for your client. Take note of the
following:

•• Know the kind of information you will need for the file: personal details, addresses,
employment, contact numbers, marital status, identity documents, birth certificates,
etc.
•• Research the applicable law. If, for instance, the matter is about your client’s
dismissal from work, you may have to refresh your knowledge of Labour Law.
Read textbooks on the issue and get relevant cases on dismissals and related
topics. Make sure the cases deal with facts similar to the ones regarding your case.
•• Jot down the relevant facts or aspects that you consider essential to the case, or
those you think you might need to prove your case. These will inform the kind
of questions that you need to ask.
•• Write down relevant questions for the information you want to obtain from the
person you are going to interview.
•• Think of possible questions that your opponent may ask your client. You will find
this strategy useful when you ultimately frame your questions during the interview.

ACTIVITY 4.2
Think of possible or relevant questions that you may ask your client concerning a
case where he/she has been dismissed from work. Write the questions on a piece
of paper or in your notebook. You are free to add your own issues/headings that
you think may be relevant in a case of dismissal.

20 Feedback
Your questions should enable you to get information to establish the relationship
between your client and the defendant (his/her employer?): what your client did
or did not do, how the defendant reacted to that, was he/she called for a hearing,
and so forth. The questions should be realistic.

4.3.3 The actual interview

When you meet the client or witness, try to make him/her feel at ease. It is at this
stage that clients or witnesses feel apprehensive, anxious or nervous. Make them
feel that they are welcome, and that you are willing to help them. In this regard you
should note the following:

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•• One of the approaches you may take is to start off by showing interest in the
client or witness.
•• Do not rush into the main issue that has necessitated the interview. You should
allow them to relax.
•• Enquire about his/her name, and what he/she would prefer to be called. Establish
whether he/she would like to be called, say, ‘‘Mr Nkhwashu’’ or simply ‘‘Richard’’.
•• Talk about general things, e.g. what could be happening in the wider social sphere,
like sport; ask about his/her hobbies, where he/she lives, general information
about his/her background.
•• If possible do offer him/her tea, coffee or a soft drink.
•• If you are interviewing a witness, you need to tell him/her who you are acting
for (i.e. your client).
•• Reassure the witness about the confidentiality of the discussion or interview.

When the client or witness seems relaxed, you may get to the ‘‘real’’ questions relating
to the matter. Remember that this is what the whole interview is for. You should
make sure that you get what you want from the interview. For example, you may
start off by saying the following:

‘‘We are preparing a court case regarding the collision that happened at the Tzaneen-
Bindzulani intersection on the Lydenburg Road near Nkowankowa Township on
24 September 2015, and would like to get more information from you. We got your
details from our client, Mr Kaizer Letsoalo, whose car was one of the vehicles
involved; and he said you witnessed the collision and that you were willing to assist
the court in the matter.’’

After that you may get into asking the questions that require more specific details
regarding the matter. In this respect you should consider the following points:

•• A safe approach is to ask the client or witness to give a short outline of what
happened. You should do this to give yourself the opportunity to get the general
sense of the ‘‘story’’.
•• Take notes as he/she speaks so that you have the necessary information.
•• You may stop the witness if he/she speaks too fast or if you want something
clarified.
•• After this initial run, you may politely ask him/her to start the ‘‘story’’ from the
beginning (i.e., he/she should give an outline of the events again).
•• At this stage you should check inconsistencies, and whether there are any deviations.
•• You should, again, be free to stop him/her and politely ask him/her to clarify
such deviations. Take notes.
•• Remain focused on the facts or the ‘‘story’’. In this way you should be able to sift
the facts from his/her emotions or opinions, and stick to them.
•• During all this, remember the guidelines and points we discuss in the section
‘‘Listening Skills’’. Try to observe these guidelines.
•• Finally, ensure that the client or witness gives you the information that is relevant
to the questions you considered before the consultation and that such information
will help you develop your argument as far as the ‘‘issues in dispute’’ are concerned.

4.4 LISTENING SKILLS

4.4.1 Why listening skills?
The following statement by Maughan and Webb is most relevant in this respect:

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Failure to listen to the client’s story will not only limit the accuracy of your
information gathering and advice, but may damage your ability to build up a
rapport and gain the client’s confidence.35

Kagan makes the point that listening is a skill and that ‘‘skills are acquired, not natural
abilities’’. She emphasises that students must thus learn techniques and practise them
‘‘till they are comfortable habits’’.36 However, as Maughan and Webb37 would say,
such a skill is not ‘‘as easy to acquire as we tend to think’’.

We spend most of the time hearing sounds around us; but in that time we also listen
to certain sounds we are interested in. We often downplay the difference between
listening and hearing. We will not go into the details relating to the difference
between these two concepts but, generally, we may say that hearing is mostly passive,
spontaneous and rather indifferent, whereas listening is a more active, conscious
and deliberate exercise by the interlocutor38 to receive certain messages or sounds.

Think about a legal practitioner’s (a lawyer’s) daily professional life. You probably
realise that communication, especially listening, forms a key part of his/her life.
Think of the instances when you consult with a client, when you contact witnesses
and other colleagues in the profession, your Aactivity in the courtroom where you
have to communicate with the magistrate/judge, prosecutor, your opponent and
witnesses, and so forth. All these suggest that you should listen effectively in order
to engage in effective communication. It is thus essential that you work on improving
the skills of being a very effective listener.

4.4.2 What is a good listener?

A good listener is someone who understands why he/she has to listen to something,
in the first place. He/she knows what he/she wants from the context in which he/
she is listening. The following are some of the points that characterise a good and
effective listener:

•• Be empathetic.
•• A good listener keeps eye-contact and responds to the speaker accordingly. You
respect the speaker by, for example, not doing distracting things during the
conversation.
•• A good listener also listens with his/her eyes. This is especially so in face-to-face
interactions where the listener is able to receive messages transmitted by non-
verbal communication mode, such as facial expressions.
•• A good listener also participates in the interaction, silently, by active body language.
In other words, as you listen to the speaker, you also give that speaker feedback
to make him/her feel that his/her message is received, and reassure him/her
that he/she is being attended to. An example in this regard would, for instance,
be nodding.
•• A good listener would thus also encourage the speaker that he/she is actively
involved and is interested in the interaction by using both receptive language (e.g.
‘‘I see’’) and non-verbal cues (e.g. nodding or shaking head).

35 Maugh and Webb Lawyering skills 121.

36 Kagan C Coping with College: The Efficient Learner (McGraw Hill New York 1982) 56.
37 See Maugh and Webb Lawyering skills 121.
38 An interlocutor is a participant in a speech context or situation.

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•• He/she seeks clarification where there is any misunderstanding, or signs that there
is coherence in what is being presented. He/she would thus ask questions if he/
she is not really sure whether he/she understands what is being said.
•• He/she cares about the speaker and other role players in the listening context,
and value of the messages (not necessarily having to agree).
•• He/she pays full and genuine attention to what is said. He/she does not fake
attention.
•• A good listener shows interest in, and commitment to, the interaction. In a
professional setting this will be evident when the listener takes notes.
•• A good listener must be open-minded. Allow your mind to be open to new ideas
and criticisms and thus be comfortable with ideas you may not agree with.

The qualities described above suggest that listening is not passive, and that the listener
has certain things that he/she has to do during the interaction or communication
process.

4.4.3 Ways of listening

We do not intend to take too much space discussing the various ways in which
we can listen. We believe that from the points already discussed here, you can see
that listening may be passive or active. You should be aware that our focus in this
discussion has mainly been on listening as an active process.

You can listen in two ways: (i) listening for facts, and (ii) listening while also taking
cognisance of feelings or emotions.

•• Listening for facts:

Here you listen for what is being said. This is shown by, for example, when the
listener paraphrases or reflects on what is/was said. This way of listening is applied:
for example, when you attend a lecture. You listen for facts, and analyse what
you hear (on the basis of the facts that are presented). To benefit from lectures,
you should do the following:
–– Think about the topic before attending the lecture/conducting an interview.
–– Read about the topic before attending the lecture.
–– Listen for main arguments.
–– Note which arguments support the main ideas.
–– Try to remain objective.
–– Take notes.
–– Ask questions for clarification.
Emotions cannot be finally bundled and named. Life experience and reading
help one to understand people and to listen with empathy, understanding and
objectivity, and to be able to judge expressions such as “I am sorry”, “I was an-
gry” and “I feel sympathy”.
•• Listening while taking cognisance of (noting) feelings:
This way of listening is extremely important for a legal practitioner or lawyer. This
is an even more active process as you also listen for what is being felt. Thus, you
reflect not only on what is said, but also on what people are feeling. Take note of
the following guidelines on how to listen successfully in this way:
–– Do not judge the speaker.
–– Use non-verbal communication to help the speaker relax and to trust you.

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–– Do not interrupt the speaker.

–– Avoid disturbances like phone ringing etc.
–– Do not quote examples from your own life.
–– Do not give advice unless you are asked for it.
–– Once the person is finished, make a summary of what he/she said.
–– Ask questions if you need clarification.

ACTIVITY 4.3
1. Make a summary of what you consider to be qualities of an effective listener
during an interview with a witness.
2. Explain why it is very important for a lawyer to have the skill to listen “while
also taking cognisance of feelings”.
3. How and why should a lawyer be on his/her guard against faked emotion?

21 Feedback
The first part of this activity requires you to consider the various points on sum-
mary making as dealt with in the learning unit on study skills (Learning unit 2).
You needed to have thought about the points we have discussed in this unit. In
your response you should have related these points to the context of law practice,
particularly when interviewing witnesses. The second part of the activity requires
you appreciate that witnesses or clients are human beings (subjective beings).
They are not only aware of our attitudes to them during interviews, but also sensi-
tive. A lawyer should thus take this reality into consideration during the interview
process. Similarly, in responding to the third part of the activity, you should note
that if you are artificial or pretentious, your client will easily notice that and obvi-
ously form a negative impression about you.

ACTIVITY 4.4
For this activity, find a relevant text dealing with a legal issue that interests you.
The text could be from a newspaper, journal, magazine or even a law textbook.
Ask a member of your study group or anyone around you to read while you listen
carefully. Then write a summary of the content of the text.

22 Feedback
It will really benefit you if you choose a text that deals with issues that are relevant
to you personally or relate to an aspect of your studies. Please take this exercise
seriously and ensure that the reader you choose is someone who can read well.

4.5 LOGIC AND LEGAL ARGUMENTS

We discuss “logic” because it is a very important element in legal practice in that
it enhances our ability to solve problems. However, the focus for lawyers is on
legal problems, rather than on general problems. Indeed, not all problems are legal

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problems or can be solved through the application of the law.39 Some authors40 have
argued that the human brain works in such a way that people solve most problems
by using a similar problem-solving pattern. Before we delve into the technical and
procedural aspects that characterise oral or trial advocacy, we think it is necessary
first to explain what argumentation as such entails. This is because argumentation
forms the basis of all forms of legal argumentation or oral advocacy. The concept
of oral advocacy is explained in the next section.

The main idea is that when you have studied the content of the law, that is, both the
substance and the rules of procedure, you must have the sense and skill to use that
knowledge to get the required results and achieve your set objectives. You should
know, by now, that as a lawyer your role is to look at a problem that has to be solved
by the application of the relevant laws. This should be done in such a way that you
are able to persuade the courts (i.e. the judge or magistrate) about the validity of
your argument. This suggests that you should know how to find the relevant law
and formulate ways of solving that particular legal problem convincingly. Legal
argumentation is this activity by a lawyer to apply the relevant law to a particular
legal problem.

The ability to argue in the legal practice, as in many other social situations, depends
on how one is able to construct a sensible and fluent chain of ideas that leads to a
probable or acceptable conclusion. After completing your legal studies, you will have
theoretical knowledge at your disposal, but you still have to acquire knowledge and
experience of how to put this knowledge to good effect to convince or persuade
judges or magistrates.

The ability to argue effectively depends on how logically your ideas are organised
with reference to sequence, combination and reaching acceptable conclusions. It is
very important that you perfect these skills.

4.5.1 What is logic?

Logic has to do with the ability to solve problems by argumentation. It tries to provide
answers on what is involved when a point is argued, and what good argumentation
entails. In short, it gives guidance on how to argue and to get to grips with issues of
argumentative nature. As such it has to do with good thinking. It should be obvious
that meaningful and correct thinking is of utmost importance in the legal world.

In this section we try to teach you a few basics of logic. But remember that this is a
skills module for law students – it is not possible to treat such a specialised field with
its many forms, facets and approaches in depth. In fact, we can hardly scratch the
surface. If you are interested in this field, the sources mentioned at the end of this
learning unit may be of some help, otherwise, consult the experts in this specialised
field of Philosophy. At this point we can say that Philosophy should help one to
think clearly, to recognise fallacies in reasoning, and to exercise caution in matters
of inference. It is important, especially in the legal world, to appreciate that reason
should replace rhetoric.41

39 Humby et al Introduction to Law and Legal Skills in South Africa (Oxford University Press Cape Town
2012) in chapter 13 address relevance of logic and the skill of critical reasoning to legal practice.
40 For example, Humby et al Introduction to law at 13.1 and Palmer R et al Becoming a lawyer: Fundamental skills
for law students (Butterworth Durban 2003) 55 make a thorough input in this regard.
41 Platt RM The I-Opener: an Introduction to philosophy (Prentice-Hall New Jersey 1976) 52.

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Logic can thus be said to be the study of rational thinking, and it is concerned
with the structure of valid arguments.42 We briefly discuss the structure of logical
arguments a bit later in this section. We can say that the focal point of traditional
logic is the argument. What is an argument? It is a network of statements in which
one statement is made on the strength of the rest. For example: “The garden is wet
because it rains” is a simple argument with the ground or reason (called premise),
“it rains”, and a conclusion from it, “the garden is wet”. Thus P → C.

The relation between the premise and the conclusion may be of different forms. We
look at the two best-known forms:

(a) Deductive reasoning

Here the conclusion follows directly and fully from the premise e.g.

All humans are mortal

Socrates is human
→ Socrates is mortal

The premise, so to speak, “forces” the conclusion on us. If we think about the
conclusion, it is clear that it does not contain new knowledge; perhaps a new insight,
but to know what the premise claims is to know the contents of the conclusion.
The conclusion shows what the premise in the ‘‘combination’’ contains. According
to Palmer et al 43 this form of argumentation, called deductive reasoning/deduction,
arrives at certainties. Three aspects are of importance here:

(i) Form and content

This argument has the following form: P1 + P2 → C. But it also carries certain
contents: Socrates, humanness, mortality, which are linked (generalisation, particular
instance) to give the above form. In deduction, the form determines the validity of
the argument. We can link meaningless sentences that have the form of the above
statements and derive a valid (but meaningless) conclusion from them. Further,
this arrangement (i.e. form and content) also manifests itself in the construction
of non sequiturs. In this regard, senseless or meaningless are formed in spite of their
grammatical correctness. Non-sequiturs are discussed in (iv) below. Thus, when we
argue, the form of the argument is of utmost importance, otherwise we cannot arrive
at valid conclusions. It is important to note that the conclusions in non-sequiturs are
not valid.

(ii) Truth
For an argument to be true and not only valid, the premises have to be true, i.e.
meaningful facts. From these a valid conclusion, which will be true too, can be
deduced.

42 Platt The I-opener 63.

43 Palmer R, Crocker A & Kidd M Becoming a lawyer: fundamental skills for law students (LexisNexis But-
terworths Durban 2003) 10.

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(iii) Meaning
This form of argumentation may seem rather inferior, because it neither gives new
knowledge nor guarantees truth as such. Rather, it provides clarity of meaning and
of the knowledge we have. Clarification and interpretation are, however, important
parts of legal involvement. Long and intricate legal battles have been fought inter
alia to decide what constitutes blasphemy or the transgression of a church rule and
thus heretic activities.

Palmer et al 44 give the following example of deductive reasoning in the legal context:

Example
THE RAPE CASE
Abel is charged with the rape of Barbara. He denies the charge, stating that he has
never had sexual intercourse with her. The prosecutor calls an expert medical witness
who testifies that he found traces of semen in Barbara’s vagina (Sample A) and that
a DNA analysis of this semen sample exactly matched DNA of a semen sample
obtained from Abel (Sample B). The expert evidence further establishes that it is
impossible for two strangers to have identical DNA characteristics.
Using deductive reasoning, the court may conclude as follows: Premise 1: Semen
sample A was taken from Barbara’s vagina [True]. Premise 2: Semen sample B was
taken from Abel [True]. Premise 3: The DNA of Sample A was an exact match of
the DNA of Sample B [True]. Premise 4: It is not possible for two different people
to have identical DNA [True]. Premise 5: Both semen Sample A and semen Sample
B came from Abel [True]. Conclusion: Therefore, Abel had sexual intercourse with
Barbara [A must!].

(b) Inductive reasoning

The second form of argument, one which may be seen as the opposite of deductive
reasoning, is inductive reasoning. Here the form is the same as for deduction, but
the conclusion contains something new, something more in that it goes beyond the
premises. On the ground of some observations, scientists make claims that cover
ALL future instances, e.g. “Water boils at 100 degrees centigrade”, “All objects
gravitate to the centre of the earth”, and “Dreams have deeper meanings”. The
problem then is how premises can still be seen as grounds for the conclusion. There
are a number of possibilities:

(i) Argument from a (so-called) law

This is what scientists usually do. They try to formulate a “law”, which they then
argue further. Lawyers usually argue from or on the basis of laws, and then show
that a particular instance is covered by that law or, the other way round, they show
why the law does not apply. Also where the behaviour of people is under scrutiny this
strategy is often relied on (e.g. if an action can be seen as part of a law-like pattern,
it may be seen as not part of a conscious decision and thus pardonable).

44 Palmer et al Becoming a lawyer 10–12.

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(ii) Connectedness or correlation

This is a weaker form of the foregoing. It is not claimed or assumed that there is a
“law”, but that two different occurrences or aspects often go together, or that there
is an established correlation between the two. Thus, ‘‘because (a) therefore (b)’’, it is
what is to be expected. This may also be a form of an excuse.

(iii) Causality
This is the strongest form of connection between two events – there must be some
form of necessity in their interconnection. This is a general argument form used in
the legal world, as causality is what often has to be proven.

Because the conclusion does not follow from the premises in this case, but only
relies on them for support, inductive conclusions are always more or less vulnerable.
Thus, any case that is argued in this manner should be built up to provide as strong
a conclusion as possible. Premises should be formulated and combined in such a way
that the conclusion derived from them will in the end be more acceptable than any
other possible conclusions. Similarly, when the object is to discredit an argument,
these are the places to look for weak points.

Palmer et al 45 discuss the following example of inductive reasoning in the legal context.

Example 2
THE BAIL HEARING
Let us assume that Abel was arrested on suspicion of raping Barbara and now applies
to court for bail (bail is a court procedure whereby the judge/magistrate may release
an arrested person from custody on payment of a sum of money).
The test the court will use to decide whether to release Abel on bail or not, is the
interest of society. The presiding officer (judge/magistrate) will consider factors
such as the following:
•• Will Abel return to court to stand his trial, if released on bail?
•• Will Abel interfere with state witnesses?
•• Will Abel be a danger to society if he is released on bail?
•• Will Abel’s own life be in danger? (Barbara’s relatives might want to kill him.)
To decide whether Abel should be released on bail, the court will look at evidence
supporting the above. After hearing evidence and argument, the court will ask the
following:
•• If Abel is released on bail, is it probable that he will stand trial?
•• If Abel is released on bail, is it probable that he will interfere with State witnesses?
•• If Abel is released on bail, is it probable that society will be in danger?
•• If Abel is released on bail, is it probable that his own life will be in danger?
If, for example, evidence is led that a mob of 30 armed men is waiting outside the
courtroom, threatening to kill Abel as soon as he is released on bail, the court may
reason as follows:
Premise 1: A group of 30 armed men is outside the courtroom. [True]

45 Palmer et al Becoming a lawyer 10ff.

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Premise 2: Many members of this group are uttering threats to kill Abel. [True]
Conclusion: It is therefore probable that Abel’s life will be in danger if he is released
on bail.

Note: The court does not know for sure what will happen, but there is a probability
that Abel could be killed and, therefore, he should not be released on bail.

(c) General remarks

(i) The nature of premises

Premises in arguments are different in nature. They can be perceived or acknowledged
facts, or assumptions (at times they seem so obvious to the arguer that they are not
even mentioned) from worldviews, about history or science, etc, or they can be
meanings of words or expressions. They can of course also be the conclusions of
an earlier argument; a long argument as you will find in court, often has the nature
of a series of arguments strung together and which leads to a final comprehensive
conclusion. Here an important principle applies – that of relevance: Everything that
is put forward in an argument should be relevant to the main point – thus, do not
deviate, stick to the point!

Two common forms of irrelevance in arguments are: argumentum ad hominem and argue
from authority. We now discuss each of them briefly below:

•• Argumentum ad hominem (personal attack) – attacking the arguer instead of the

argument that he/she is presenting. This is the equivalent of “playing the man
rather than the ball”. It should however be noted that whatever is said about a
person does not affect his/her argument. A prominent example in the South
African socio-political discourse relates to a young, fearless and vibrant political
leader from Seshego, a township near Polokwane in the Limpopo Province, who
is simply criticised on a personal level without his solid ideas being factually
contested. It is common to come across remarks such as: “No, he is not right,
man, he is young. He is from Limpopo. What can a child of a domestic worker
tell you? In any case, he attended only township schools and was never taught
by white teachers”. In this example, there is no relation between his age, where
he comes from, his family background and the cogency of his ideas. Thus, his
critics are actually attacking the young man instead of his argument.
•• Argue from authority – In this instance, the arguer introduces a name in an attempt
to strengthen the argument. There is a correct way of using authority, i.e. the
name stands for an argument or an accepted view. However, to rely on a name
to bolster a weak argument cuts no ice.

ACTIVITY 4.5
Read the following texts (Text A and Text B) and do the question that follows.

Qabane: “This is our land. Izwe Lethu! The problems in Azania (South
Africa) are caused by poverty and landlessness that have besieged the
majority of its citizens, particularly Blacks, who are the indigenous people
of this country. I think these problems can be addressed by taking the
following steps, which are some of the cardinal pillars of our struggle:
expropriation of land without compensation for equal redistribution in use,
nationalisation of mines, banks, and other strategic sectors of the economy,
without compensation, free quality education, healthcare, houses, and

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sanitation; massive development of the African economy and advocating a

move from reconciliation to justice in the entire continent…
Impimpi: “No, no, haikhona wena maan! You want us to be like Zimbabwe.
Your argument is totally unacceptable because you are still young. Secondly,
you are from a rural province and you have never been to America. Remember,
you only attended township schools and never got taught by whites. You are
so inferior that only stupid people like you can take your argument”.

Refer to the discussion on argumentum ad hominem above and draft two or three
paragraphs in which you critique the two texts (i.e. Text A and Text B) above.

(ii) Beware of arguing in circles

This happens when a conclusion (or, rather, the wished-for-conclusion) is introduced
(usually camouflaged) as a premise. This results in a valid but unfortunately
unacceptable argument, which starts from what has to be proven.

(iii) Criticism
In criticising an argument one can focus on the premises or on the conclusion.
The conclusion may be valid but not acceptable (not strong enough, irrelevant,
etc) or it may not even be valid. Premises may be rejected as untrue or irrelevant.
Note that any form of criticism has to be argued in its turn, and can and has to be
treated/evaluated as such. Here again an important principle is at stake: the principle
of reasonableness. Viewpoints/statements have to be substantiated/argued and
must, in principle, be open to criticism and discussion. Freedom of expression and
reasonableness go hand in hand. Without this principle our judicial system and in
fact, our state cannot function.

(iv) Non sequitur

The rules of logic should be thoroughly mastered to ensure that the logical sequence
almost leads us to very sensible results or a final conclusion. Thus without sensible or
valid inferences, we cannot arrive at valid conclusions. One of the basic things to do
to ensure that we arrive at sound conclusions is to avoid non sequiturs (i.e. conclusions
that do not follow the premise that they are supposed to be derived from).

Example:
Premise 1 My dog has a tail
Premise 2 All horses have tails
Conclusion My dog is a horse [False!]

You will realise, with further practice, that although a logical process of reasoning
may be used to persuade (especially in argumentation), the conclusions used in the
arguments do not necessarily represent the truth. In other words, the process of
logical reasoning may help in adding to one’s persuasive power, but that does not
establish the truth. In the case of a legal argument, it will be left to the presiding
officer (e.g. the magistrate or judge) to give a ruling after considering what the legal
position is as it applies to the facts. However, you should know that it remains your

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responsibility to organise the facts, find the law and formulate a logical argument
that will win you the case.

In Philosophy (or Logic, to be particular), there are several ways in which one’s logical
reasoning may be challenged. Examples of how one may challenge such could be
in situations where

•• the argument is based on false, weak, ridiculous or unacceptable premise,

•• inferences/assumptions made from the premise(s) are flawed, or
•• the final conclusion does not follow the premise it is supposed to follow (non
sequitur).

Example:
Premise: Brazil is the home of soccer.
Conclusion: All Brazilians play soccer.

The conclusion drawn here can be challenged on the basis that it is a non sequitur.

The purpose of this section was to make you aware of how logical reasoning works,
albeit in a small way, and how it can be related to legal argumentation. As this is
not a course in Logic or Philosophy, we only skim the surface. However, for your
own personal development, we urge you to read as much as possible in this area of
Philosophy as you prepare yourself for your further studies in law, or a career in
legal practice.

We conclude with the following remark46:

The more extreme Sophists would have said that an argument is good if and only
if it achieves what the arguer wants. The more extreme formal logicians would say
that an argument is good if and only if its premises imply its conclusion. Somewhere
between these two extremes lies sanity.

A good argument is a strong argument (and strength admits of degree). But when
we consider argument as something intended to persuade, another dimension of
argumentative goodness emerges: The premises should not merely be true, but should
be intelligible to and found acceptable by the intended audience.

ACTIVITY 4.6
Read the following facts on a divorce case 47 and then answer the question.

THE DIVORCE CASE

Abel and Barbara were married to each other on 1 January 1990 in Cape
Town. They were happily married for ten years. Then, in January 2001,
Barbara discovered that Abel was having an affair with his secretary, Clarissa.
Would Barbara be entitled to a divorce on these facts?
The relevant rule of law, sec 4(1) of the Divorce Act 70 of 1979, reads as follows:

Irretrievable breakdown of marriage as ground of divorce – (1) A court may grant

a decree of divorce on the ground of irretrievable break-down of a marriage if it is
satisfied that the marriage relationship between the parties to the marriage has

46 Sparkes AW Talking Philosophy: A Workbook (Routledge London 1991) 97–98.

47 These facts have been adapted from Palmer et al Becoming a lawyer 12.

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reached such a state of disintegration that there is no reasonable prospect of the

restoration of a normal marriage relationship between them.

23 Feedback
Your answer should show the connectedness of facts: that is, Abel having an affair
and Barbara being entitled to a divorce order. Remember the notion of causality.
Consider what the relevant section of the Divorce Act stipulates in this respect.

4.6 LITIGATION AND ADVOCATING IN A COURT OF LAW

Humby et al 48 and Kok et al 49 discuss this topic at considerable length. Our view is
that appearing in a court of law is a substantial part of a lawyer’s life. However, we
also need to emphasise that you will not find everything you need for a trial in this
learning unit. You will acquire much of what is needed with practice, for “no words
will ever convey all that can be learned from personal experience’’.50

4.6.1 Important points to consider

There are certain guidelines or procedural steps that a lawyer has to follow when
handling a case. These steps are widely referred to as litigation processes. In this
section we discuss some of the key points in this regard. However, the key to all
this is your ability, as a lawyer, to persuade or convince the presiding officer (judge
or magistrate) of your client’s case.51 You will, of course, learn more about these
aspects in practice or in your practical legal training. We also suggest that you start
developing a keen interest in courtroom dynamics. For instance, it is advisable to
familiarise yourself with the various role players in a court of law, what they do and
how matters are argued in court. In fact, we encourage you to visit courts frequently,
so as to make your own observations on how the various legal actors interact with
one another.

(i) Preparation
This may sound simplistic, but it is a very important step in the trial process.
Preparation starts with getting your mind and attitude right for the work you do. As
discussed in the section on ‘‘Non-Verbal Communication’’ (see 4.3) even your body
language plays a big role in your work as a lawyer. Although you will be expected to
know the law that is relevant and applicable to the facts in your case, you should also
ensure that your appearance (including body language) is prepared for the case. To
avoid unnecessary embarrassment in court, make sure you are thoroughly prepared.
This is what you should bear in mind:

•• Do research on the relevant law.

•• Be conversant with the contents of your file.
48 Humby et al Introduction to law and legal skills in South Africa 215–260.
49 Kok A et al Skills Workbook for Law Students 2nd ed ( Juta Cape Town 2011) chapter 7.
50 Morris E Techniques in litigation 5th ed ( Juta Landsdowne 2003) 3.
51 Barrat A et al Skills for law students: Fresh perspectives (Pearson Education and Prentice Hall Cape Town
2008) 272.

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•• Make the necessary arrangements with your clients and other important role
players (e.g. witnesses).
•• Formulate questions you will have to ask.
•• Prepare your witnesses and client for the trial.
•• Do not take anything for granted, as you may lose even the most simple of cases.
•• Punctuality: It is important to arrive early so that you have time to establish
which magistrate will hear the case. It is helpful that you arrive early to avoid the
unnecessary anxiety resulting from having to look for the right court at the last
minute. Remember that being late creates a negative impression. It says a lot about
you (in the eyes of the magistrate or even your client). If you are early you have
the opportunity to introduce yourself to the magistrate in his/her office before
the start of the trial. This is necessary if you have not previously represented a
client before that magistrate.

(ii) Summary of procedural steps/stages in a trial

For the purpose of explaining the stages of a trial we refer to a civil matter, in other
words a case between two individuals called the plaintiff (the person instituting the
action) and the defendant.

OPENING ADDRESS: Plaintiff’s legal representative

Defendant’s legal representative

PLAINTIFF’S CASE: Examination in chief (plaintiff’s lawyer)

Cross-examination (defendant’s lawyer)

Re-examination (plaintiff’s lawyer)

Close the case (plaintiff’s lawyer)

DEFENDANT’S CASE: Examination in chief (defendant’s lawyer)

Cross-examination (plaintiff’s lawyer)

Re-examination (defendant’s lawyer)

Close the case (defendant’s lawyer)

CLOSING ARGUMENTS: Plaintiff’s legal representative

Defendant’s legal representative

In the next section we discuss each of these stages in detail.

(a) Opening address

The purpose of the opening address is to introduce the matter to the presiding
officer (magistrate or judge) briefly and simply. Normally, an opening address has
the following parts:

•• Address the magistrate: ‘‘Your worship.’’

•• State your name: ‘‘My name is Makolobe Nkgapele from Lephepane Attorneys.’’
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•• State for whom you act: ‘‘I act for the plaintiff, Kaizer Letsoalo (or defendant,
Matome Motapola, etc).’’
•• State what the matter is about: ‘‘This is a claim for damages resulting from a
motor collision that occurred on 24 September 2018 at the Bindzulani intersection
near Nkowankowa township on the R36 Lydenburg Road between Tzaneen and
Lenyenye.’’
•• State the issue in dispute: ‘‘The parties differ on the quantum/amount of the claim.’’
•• State what evidence you will present: ‘‘I will call Prof Jakalala Nare, an expert
in the reconstruction of accidents, as well as Mr Ditsebe Khomu, a panel beater
from Lenyenye, as witnesses.’’

It should now be clear that in an opening statement you should not give any arguments
or evidence. Your evidence should be presented during the examination-in-chief,
and your arguments are made after the evidence has been led.

(b) Examination-in-chief
The examination-in-chief may only be conducted after the witness has been sworn
in. Here you should remember that the objective is to make sure that the witness tells
the story logically, fluently and coherently. Therefore, it is important that you ensure
that your client (or witness) is relaxed and is focused on the facts. You will find that
his/her demeanour shows whether he/she is nervous. So, you should always observe
the witness’s body language as you conduct the examination-in-chief.

To encourage the witness to relax and tell his/her story, take care of your manner
of questioning. Although you need to be formal, make the whole communication
friendly, easy and purely conversational. Ensure that your way of framing questions
will only prompt the witnesses to provide information that is relevant for your
purpose. For example, information that would be in line with your particulars of
claim or pleadings. Kok et al 52 make the point that during examination-in-chief
your witness’s evidence should correspond to the information presented in the
pleadings. If the witness presents evidence that differs from that which appears in
the pleadings, your opponent will use this to undermine the credibility of the witness
and, therefore, your argument.

The most problematic aspect in examination-in-chief is your ability to avoid asking

leading questions. In court you (and your opponent) are entitled to object if either
of you asks leading questions.

The issue now is how will you know that a leading question is being asked? Such
questions presuppose information that has not yet been given. In other words, the
question somehow leads the witness to a particular answer, which usually favours
your case. Typical leading questions require that the witness merely answers with a
‘‘yes’’ or ‘‘no’’.

You should, however, note that not all leading questions may be objected to. Instances
where you or your opponent may not normally object, include situations where
that question is meant to elicit facts that are not in dispute. That is, facts that may
simply be regarded as ‘‘common course’’, in other words, where both parties agree
that those facts are true.

52 Kok et al Skills Workbook 174.

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Example: Is your name Kaizer Letsoalo? And you live in Lephepane?

Another example could be in situations where the two opposing sides agree on the
date, place and time of occurrence of a particular event. Thus your opponent may
not object to this ‘‘leading question’’: “Tell the court where you were on the 2nd
of January 2006.” Whereas ‘‘Were you in hospital on 2 January 2006?’’ is a leading
question. Kok et al 53 give examples and brief explanations of leading questions.

Examples:
1. ‘‘How long have you been an industrial psychologist, Mrs Roberts?’’
If the information that Mrs Roberts is an industrial psychologist has not
yet been given by Mrs Roberts, the above question would clearly be a lead-
ing question. This is because you are already presupposing information, for
example, that Mrs Roberts is an industrial psychologist. And your opponent
would certainly object.
Therefore, approach it as such:
•• First question: ‘‘What is your name?’’ Answer: ‘‘Mrs Roberts.’’
•• Second question: ‘‘What work do you do?’’ Answer: ‘‘I am an industrial
psychologist.’’
•• Third question: ‘‘How long have you been an industrial psychologist?’’
2. ‘‘So, Mr Roberts, you shot Mr Kitchen with a shotgun?’’
If you start with a question like this, you are already presupposing certain
information. For instance, that he shot someone, that the said person is Mr
Kitchen and that he used a shotgun. This becomes a leading question. The
best way to ensure that you do not ask leading questions is to frame open or
W-questions: where, when, why and how? The following example shows how
the above question can be asked in this way:
•• First question: ‘‘Do you know why you are in court today, Mr Roberts?’’
Answer: ‘‘Yes.’’
•• Second question: ‘‘Why are you in court today?’’ Answer: ‘‘I killed Mr
Kitchen.’’
•• Third question: ‘‘How did you kill Mr Kitchen?’’ Answer: ‘‘I shot him.’’
•• Fourth question: ‘‘With what did you shoot him?’’ Answer: ‘‘With a gun.’’
•• Fifth question: ‘‘With what kind of a gun did you shoot him?’’
•• Answer: ‘‘With a shotgun.’’

Remember, your task is, through your questions, to get a coherent story from your
witness.

(c) Cross-examination
It is not that easy to explain what cross-examination is. We have, however, found
the following explanation quite useful:54
Cross-examination is the questioning of the other side’s witness to check, challenge or
extend the testimony already given by that witness. Cross-examination may become
quite aggressive in that the cross-examiner may attempt to show that a witness’s
testimony is unreliable.

53 Kok et al Skills Workbook 175–176.

54 See in this respect Humby T et al Introduction to law and legal skills in South Africa par 9.2.2.

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Your opponent will cross-examine your witness after you have finished your
examination-in-chief. Cross-examination is a very tricky activity for a lawyer. The
skill of cross-examining is acquired through a lot of practice.

If you have to cross-examine, be careful not to strengthen your opponent’s case

inadvertently. Thus, be focused: know what you want to get from the cross-
examination. You should be firm or even aggressive when you cross-examine so
that you shake the witness to a point where his/her version of the events is tested
and possibly exposed. In other words, your sole purpose is to ‘‘punch holes’’ in
his/her version of the story so as to weaken the witness’s story and expose him/
her as unreliable or even dishonest. Cross-examination may also be used to extract
information that is favourable to the cross-examiner from the other side’s witness.

(d) Re-examination
Re-examination is conducted after your witness has been cross-examined. Generally,
the purpose of re-examination is to try and lessen or repair the damage done during
cross-examination. Some people feel that you should only re-examine when you really
have to, otherwise you should not, because witnesses may actually worsen matters
by contradicting themselves.

(e) Closing argument

The closing arguments are meant to persuade the court to follow your line of
argument, and hopefully to find in your favour. It is at this stage that you may find
some of the points discussed earlier, in the section, ‘‘Logic and legal argument’’ very
useful. Closing arguments are presented by the opposing sides after all the evidence
has been presented to court.

Where possible, you should prepare typed heads of argument to support your
argument. Heads of argument are written presentations whereby you briefly outline
(i) the facts or background of the case, (ii) the evidence, (iii) applicable law and
sources, and (iv) finally, ask the court for a specific order or orders. These orders
are sometimes referred to as ‘‘prayers’’ or ‘‘remedies’’. You will orally present these
heads of arguments as your closing statement.

ACTIVITY 4.7
Reflect on what you have studied with regard to the various litigation stages before
reading the following extract from a song by the music artist, Peta Teanet. Later
do the tasks given after the extract:
“DIVORCE CASE”, Peta Teanet (1993 EMI Records www.Youitub.com/
watch?v=ex4xAbyYTQIA date accessed 15 May 2017)
Hey you, magistrate, do you remember
When I came to you with my favourite girl;
I told you that I love her so much, I signed, oh yes I signed
That I will live with her for the rest of my life
I am sorry, Oh, yes, I’m sorry for signing that,
She beat me, she used to kick me, she used to shout me…
She’s now the boss of the house,
I think divorce case is better, is better than killing her,

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It’s better, better-better-better than killing her

Heeh, divorce case is better!

1. Explain how the above text indicates that Peta Teanet is a layman.
2. Pretend you are a legal practitioner representing Peta Teanet against his
wife, Mma-Modhatšo. Draft your opening address.
3. In the light of the above text, what is the remedy that Peta Teanet seeks?
Draft your prayers.

24 Feedback
In order for you to successfully do this activity, you needed to follow the discus-
sion we had on the litigation process above. There is a specific language and
manner that legal practitioners adopt when in a courtroom situation. The lyrics
of Peta Teanet’s song show that Peta Teanet uses ordinary language and a style
that would not be acceptable in a court of law setting. This includes his diction/
terminology, how he addresses the magistrate, how he gives his evidence (his
abuse) and how he expresses the relief/remedy he expects from the court.

Remember, as we have indicated already, this module is only an overview of the real
scenario in a court case. As your studies progress, you will see the bigger picture.
Please try to attend a court case as soon as possible so that you can get a glimpse of
the real world of the courtroom.

4.7 CONCLUSION
This learning unit emphasised the importance of various aspects of communication
to the daily lives of legal practitioners. Effective communication depends not only
on the verbal and/or textual utterances, but also on how the legal practitioner relates
to other role players in the various speech contexts. We hope you have enjoyed this
learning unit. Do not be anxious if you do not understand everything – you will
have to learn some of the things we discussed here through practice. We hope you
have seen how intertwined all the skills are: one cannot be used without the other.
Indeed, the law “in its entirety can be compared to a symphony orchestra with
different instruments contributing to produce a specific sound”.55

55 Humby T et al Introduction to law and legal skills in South Africa 353.

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LEARNING UNIT 5 LEARNING UNIT 5

5 Legal actors

In this learning unit we look at how the South African legal system works, with a
great deal of focus on the legal practice. The main purpose of this unit is to give
you a brief background on the various role players in the legal system or a litigation
process. We also highlight the so often ignored reality that an ordinary citizen is a
very important actor in the system. For instance, individuals play different crucial
roles in the litigation process. Examples of such roles include being a witness or client!

For you to benefit from the content of this unit, we re-emphasise that you should
consult other reference materials, and not simply limit yourself to what is written in
this learning unit. There are, for example, many books you can consult.56 We also
often refer to the Constitution,57 so it is a good idea to keep it at hand. At times we
give you activities that will definitely require you to refer to some statutes. We urge
you to refer to these if you wish to have more details regarding some of the subtopics
or themes dealt with in this learning unit.

Outcomes
At the end of this unit you should be able to do the following:
1. List key role players in the South African legal system.
2. Classify the various role players in the South African legal practice.
3. Describe the various roles or functions of different officers of the
courts and other functionaries in the legal system or practice.
4. Discuss the functions of various role players in the court structure.

5.1 INTRODUCTION
As an aspirant lawyer or legal practitioner, it is crucial that you familiarise yourself
with the system in which you will be expected to operate. An understanding of
any system depends largely on whether one knows the different roles that various
participants play in the system. Therefore, we describe the way in which the legal
practice is divided, as well as the various role players in the legal system. We refer
to these role players or participants as legal actors.

We are convinced that if you are familiar with the various role players in the South
African courts, you will be able to appreciate how the system or legal practice works.
We assure you that you will also find this very helpful when you visit any court of
law. In fact, we urge you to get into the habit of visiting the courts to observe the
dynamics relating to real court settings.

56 See for example Humby T et al Introduction to law and legal skills in South Africa (Oxford University Press
Cape Town 2012).
57 Constitution of the Republic of South Africa, 1996. Hereinafter referred to as the Constitution.

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 LEARNING UNIT 5:  Legal actors

5.2 THE SOUTH AFRICAN LEGAL SYSTEM

The South African legal system has been undergoing substantial transformation,
which has had a huge impact on the legal profession. This development has led to
changes in terms of the role of the judiciary, the structure of the legal profession
and the various role players or legal actors in the legal system, more especially those
who operate in the system, either by virtue of their holding a particular office, or
because they choose to practise a particular profession.58

The Legal Practice Act59 has brought about significant changes, which were meant
to be effected in a staggered fashion over a period of about three years, from
February 2015 to 2018. For instance, the national Forum on the Legal profession
was expected to make recommendations to the Minister of Justice within 24 months
after 1 February 2015 on various structural matters or regulatory frameworks relating
to the profession. These matters, among others, related to the establishment of the
new controlling body for all legal practitioners (National Council) as well as the
respective Provincial Councils. The effect of these changes is, among other things,
that the Law Society of South Africa (LSSA) and the General Bar Council were
collapsed, as the respective legal practitioners (attorneys and advocates) are now
regulated by one body (National Council).

Other aspects covered by the mandate of the National Forum on the Legal Profession
included the changing of assessment of candidate legal practitioners (i.e. candidate
attorneys and pupils or those aspirant advocates who are in pupillage) as well as the
procedures for registering candidate legal practitioners in the profession. We urge
you to familiarise yourself with the Act. This Act changed many aspects discussed
in this learning unit. For instance, the Attorneys Act 53 of 1979 and the Admission
of Advocates Act 74 of 1964 have certainly been impacted by these developments.
As indicated in the previous learning unit, there is strictly speaking no longer a
need to be referring to “advocates” and “attorneys” but, instead, legal practitioners.
However, the reality in practice is that the two categories of legal practitioners are
still sustained. It is instructive, in this context, to take cognisance of the point, and
notion, that the law is not cast in stone. As society evolves, so does the law or legal
system.

We also note that the Constitution stipulates the need for several bodies or offices
to serve as “guardians” of the legal system, especially with regard to human rights.
The comments, commentaries and recommendations of these bodies on the wider
legal issues, to a great extent, make them worthy of being viewed as powerful legal
actors. Importantly, the Constitutional Court in recent years has asserted the binding
effect of the recommendations of these bodies, most especially those of the Public
Protector.

Examples of these bodies are given in Chapter 9 of the Constitution. Therefore,

such bodies are commonly known as “Chapter 9 institutions”. In terms of Chapter
9 of the Constitution, these bodies are referred to as State Institutions Supporting
Constitutional Democracy. These institutions or bodies include the Public Protector,
the South African Human Rights Commission, the Commission for Gender Equality,
the Auditor General, the Electoral Commission, the Commission for the Promotion
and Protection of the Rights of Cultural, Religious and Linguistic Communities. We
do not discuss each of these bodies in this unit. We, however, advise that you refer

58 Humby et al Introduction to law 261–279.

59 Legal Practice Act 28 of 2014.

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to the Constitution and other reference works or textbooks for more details on how
these institutions are constituted and their roles in the South African legal system.
Of critical importance is that, in terms of Section 181 (2) of the Constitution, “These
institutions are independent, and subject only to the Constitution and the law, and
they must be impartial and must exercise their powers and perform their functions
without fear, favour or prejudice”.

The following table (Table 5.1 below) offers a brief overview of important legal
actors in our system. For the purpose of this module, we discuss a few of them only.

TABLE 5.1
Overview of legal actors in the South African legal system 60

Ordinary Private Public Protectors Presiding Court Other Other

citizens practitioners practi- officers officials and legal officers bodies
tioners related and
roles functionaries

••Clients ••Paralegals ••Prosecutor ••Public ••Judge ••The Master ••Registrar of ••SA Law
••Criminal ••Attorneys ••State defender ••Magistrate ••Registrar Deeds Reform
accused ••Notaries ••attorney ••Public ••Small Claims of the High ••Companies Commis-
••Civil ••Conveyan- ••State protector Court Commis Court and sion
parties cers advocate ••Ombuds- sioners ••Clerk of the Intellectual (SALRC)
••Advocates ••State legal men ••Traditional Court Property ••SA Human
adviser leaders ••Family Commission Rights
••Presiding Advocate ••Commission- Commis-
officers in ••The Sheriff er of Oaths sion
special courts ••The police ••Marriage (SAHRC)
Officer ••Commis-
sion for the
Promotion
and
Protection
of Cultural,
religious
and
Linguistic
Commu-
nities
••Commis-
sion for
Gender
Equality
••Academics
and jurists

NOTE: You will realise that the list excludes the African/customary/traditional

courts as prominent legal actors in their different communities, as only
“traditional leaders” are mentioned in the list. This is a far cry from reality
as the traditional court is not merely confined to or centred around an
individual but is also a system that involves the whole community. This
shows how Eurocentric the legal system is.

5.2.1 The ordinary member of society, citizen or client

Few people appreciate that the ordinary member of society, regardless of whether
he/she is a citizen or a non-citizen of South Africa, is a serious actor or role player

60 See in this regard Humby et al Introduction to law and legal skills in South Africa 261–279.

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 LEARNING UNIT 5:  Legal actors

in the legal system. This notion emanates from the approach that a legal system is
created by the citizens and is essentially meant to serve them. It is in this sense that
we normally say that a legal system derives its legitimacy and life from the fact that
the citizens agree to be controlled or bound by the system in what may be referred
to as a social contract. Generally, the term “social contract” refers to a situation where
citizens have willingly come together and agreed to a set of rules in terms of which
their lives will be organised, and thus create a sense of order, certainty and protection.
It is in this regard that a state of “rule of law” is created.

Frequently, the legal processes centre on an individual, who is a member of society.

In this light, let us now pause and consider the following quotation:
Participation in the legal process is not limited to legal practitioners or other
such formal functionaries. In the new democratic constitutional order we are
all, as citizens, obliged as a maintenance of the legal system to ensure the per-
petuation of its principles and its status. We do so, firstly by adhering to (and
sometimes breaking) laws and secondly by participating in processes related
to or that result in law-making, such as referenda and elections.61

Our view is that the individual, who in particular cases may be a client, a witness,
an accused person or a complainant in a criminal matter, a plaintiff or defendant
in a civil matter, and so on, should be considered a fundamental actor in the legal
system and processes. He/ she should not be underestimated or overlooked!

ACTIVITY 5.1
Revisit the above quotation and, as part of a study group, do the following tasks:

1. Summarise the text in two narrative lines.

2. In your groups, discuss the meaning of the following terms:
2.1 Formal functionaries
2.2 Democratic constitutional order
2.3 Civic duty
2.4 Actor

3. Discuss the role of a citizen as a legal actor in the South African legal system.
4. Prepare a presentation to your fellow students whereby you clarify the
following:
4.1 Referenda
4.2 Elections

25 Feedback
You will immediately realise that not all these points are discussed or covered in
the study material. This is deliberate. You have to research this by studying vari-
ous sources and thinking about what these things might mean.

We now discuss the various divisions of the different legal actors in our legal system.

61 This quotation appeared in the draft/manuscript of Humby et al Introduction to law. (It has since been
omitted from the textbook.)

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5.2.2 Legal practitioners as legal actors

In the last section (i.e., 5.2.1) we made the point that an ordinary member of the
society does play a significant role in the legal process. It needs to be made clear
that the participation of an ordinary citizen (or any individual) in the system may be
through direct involvement by civil action or by proxy. The term “proxy” refers to a
situation where a person participates or does something through a representative or
representatives. In the general law-making process, this is through politically elected
representatives. However, participation by proxy at a more direct or personal level
may be effected through legal practitioners.

Members of the general public will inevitably interact with various legal practitioners
when they are faced with legal challenges or any other issues in life that might
have legal consequences. They might, for instance, need the services of attorneys
(legal practitioners with a fidelity fund certificate) or advocates (legal practitioners
working on briefs from other legal practitioners) paralegals, conveyancers, notaries,
the public prosecutors, state advocates and others. In certain instances, especially
on public and/or criminal issues, they will most likely interact with prosecutors,
state attorneys, state advocates, the police, the Public Prosecutor and so on. Legal
practitioners may, therefore, be divided into two categories or groups: (a) private
and (b) public legal practitioners.

For the purpose of this module, it will be sufficient to name and explain some of the
various role players in each of these groups. However, this does not imply that you
should limit yourself to knowing only the ones that we discuss below. It will benefit
you immensely if you consult other relevant sources or textbooks and familiarise
yourself with the other legal actors.

(a) Private legal practitioners: These are generally employed by private persons
to represent (act for) them when they have challenges or issues to solve in the
legal system. Private legal practitioners, therefore, help an ordinary (private)
individual or citizen when they interact with the legal system. We can identify
the following practitioners:
•• Paralegal: This legal actor is described as follows: “The Greek prefix ‘para’
roughly translated means ‘beside’. Thus, a paralegal is a person who works
‘beside’ attorneys to assist them with tasks ancillary to legal matters. Exam-
ples of such tasks include legal research, debt collection and the managing
of a professional practice. They may also work in banks, corporate law
firms, government departments (e.g. Department of Justice and Correc-
tional Services), legal advisory bodies and NGO’s.”62 At the University of
South Africa, a three-year Diploma in Paralegal Studies is offered by the
College of Law.
•• Attorney: This is a legal practitioner who may work directly with the mem-
bers of the public as his/her clients. For one to be this kind of a legal
practitioner (an attorney), one has to complete an LLB degree offered at a
recognised university, such as Unisa, pass the admission examinations set
by the relevant regulatory body (National Council) and, further, complete
the required time serving under an experienced legal practitioner (attorney)
in terms of a contract of articles or clerkship. The admission to practise as
an attorney is regulated in terms of legislation.63 The legislation referred to
here (i.e. the Attorneys Admissions Act) has been impacted on by the Legal

62 Humby et al Introduction to law 269.

63 Attorneys Act 53 of 1979.

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 LEARNING UNIT 5:  Legal actors

Practice Act 28 of 2014. You should, therefore, refer to this Act, particularly
the Legal Practice Rules, to familiarise yourself with how legal practitioners
are admitted to the profession. The work of an attorney includes general
matters and resolving legal issues such as drafting contracts, wills and af-
fidavits. As indicated, an attorney mainly practises in the lower courts and
deals directly with the clients (or members of the public).
A candidate legal practitioner (a candidate attorney) is still in training or under supervi-
sion of an experienced or principal attorney and serves a contract of clerkship.
He/she is thus not yet an attorney. “Articles of clerkship” refer to a contract
between the candidate attorney and the principal attorney. This contract is
registered with the National Council (Law Society). The basic terms of this
agreement/contract are that the principal attorney will assist and train the
candidate attorney, as well as offer him/her the opportunity to prepare for
his/her admission to the profession:

TABLE 5.2
Overview of attorney’s profession 64

Training Controlling Act/Rules Jurisdiction Powers/competencies

body

••LLB degree ••Previously, ••Previously, ••Deals directly ••General legal

••Legal Law Society Attorneys Act with the public matters and problem
Articles of of South 53 of 1979 (clients) solving, for example:
Clerkship Africa (LSSA) ••Currently, ••Practises and ••drafting of contracts,
••Or ••Currently, the Legal has right of wills, powers of
••Articles (one National Practice Act appearance attorney and other
year plus Legal 28 of 2014 mainly in the legal documents
practical Practice lower courts ••litigation
legal Council ••representation
training) ••ex
••Attorney’s officio commissioner
admission of oaths
exam (the
Side Bar
exam)

ACTIVITY 5.2
To do this exercise you first need to visit a law firm or any legal practitioner/attorney
in your area. You should also get hold of the pre-Legal Practice Act legislation 65
and the Legal Practice Act 28 of 2014. If you do not know how to find these Acts,
please refer to Learning unit 3 (Reading Legal Texts) in this study guide. Now
answer the following questions:

1. Refer to Table 5.2 above and prepare a short presentation on the following
concepts: articles of clerkship, attorney’s admission exams, Law Society
of South Africa, lower courts, power of attorney, litigation and ex officio.
2. What is a right of appearance? Why do you think it is important for a can-
didate attorney to have it?
3. What other roles can the attorney(s) perform? For example, think of notarial
and/or conveyancing work.

64 See in this regard Humby et al Introduction to law 264–266.

65 Attorneys Act 53 of 1979.

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4. In which courts do the attorneys in the law firm appear? You can be quite
specific answering this question.
5. Who are the members of the support staff in the law firm?

26 Feedback
Once again you will realise you have to do a lot of research here. Remember:
the internet is not the only source of information! Sometimes it helps to talk to
the experts.

We now discuss the rest of the private legal practitioners.

•• Notary Public: This is an attorney who has passed the relevant exams, called the
notarial practice exams. Once admitted by the High Court as a notary public,
he/she may also do notarial work. Briefly, a notary public is responsible for the
accuracy of the information contained in the document he/she executes. He/she
is also responsible for the verification of the authority and capacity of persons
acting as representatives of various juristic persons.
•• A Conveyancer: He/she is an attorney who has passed conveyancing examinations.
After admission by the High Court, he/she may perform the work of a conveyancer.
A conveyancer transfers immovable property from one owner to another and
registers the change of ownership with the Registrar of Deeds.

ACTIVITY 5.3
Look out for a law firm that also does notarial and/or conveyancing work, and
interview the notary public/conveyancer so as to complete this exercise. (You
should write fully comprehensive notes.) Now answer the following questions:

1. What does the work of a notary public and conveyancer involve?

2. What are the key issues or points that a notary public and a conveyancer
should always be on the lookout for when they do their work?
3. Distinguish between the work of a notary public and that of a conveyancer.
4. Distinguish between the following terms: accuracy and truthfulness, au-
thenticate and verify.
5. Seals are commonly used to authenticate documents. Check with your uni-
versity or any institution or government department that you may have access
to, on the seals they use for their important documents (e.g. certificates).

27 Feedback
Also regard this exercise as an opportunity to practise and test your communica-
tion skills. Remember that legal practitioners are very busy and that they are doing
you a favour by talking to you.

We now look at the last of the private legal practitioners:

•• Legal practitioner (Advocate): This legal practitioner mainly works on referrals or

briefs from other legal practitioners (attorneys). This kind of legal practitioner
is skilled in litigation and argues matters before presiding officers, usually judges.
Generally, the work of advocates is provided by attorneys who ask them to act for

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 LEARNING UNIT 5:  Legal actors

their clients. These instructions, from attorneys, are called briefs. In this regard, it
is noteworthy that advocates do not interact directly with clients, but take their
instructions from the attorneys who then pay them honoraria for their services.
Advocates are sometimes referred to as counsels.
It should also be borne in mind that it is possible, in South Africa, for certain
advocates to choose not to belong to a particular Bar under the General Council
of the Bar. What might happen is that such advocates would associate themselves
with what is called an independent Bar (the Independent Association of Advocates
of South Africa, i.e. IAASA). You may be interested to know that IAASA has as
its aims to be allowed to get briefs directly from members of the general public.
It is also possible for individuals, for example, law professors, to be admitted
as advocates. They do not, however, practise as advocates and are not normally
members of the Bar either.
Any person with an LLB degree may be admitted as an advocate. However, for
one to become a member of the Bar, one has to serve what is termed pupillage.
Pupillage is a period of unpaid training and mentorship under an experienced
advocate(s). Two experienced advocates normally mentor a trainee advocate.
The trainee or mentee is called a pupil and the experienced advocate a master.
After completion of the pupillage, the trainee advocate must pass the Bar Council
examinations. Should he/she pass the examinations, he/she is admitted to the Bar.66

Table 5.3 below gives an overview of the advocate’s profession:

TABLE 5.3
An overview of the advocate’s profession67

Training Controlling Act/Rules Jurisdiction Powers/

body competencies

••LLB ••General ••Previously, ••All courts in ••Litigation

••Pupillage Council of Admission of South Africa ••Drafting legal
(ranging the Bar Advocates documents
between four ••Provincial Act 74 of ••Pleadings
months to Bar Societies 1964 ••Legal opinions
one year) Currently, ••Currently,
••Bar National the Legal
examination Legal Practice Act
Practice 28 of 2014
Council

ACTIVITY 5.4
Consult any legal practitioner (an advocate or even an attorney) and request
information that will help you with the following:

1. What role do the General Council of the Bar and the Provincial Bar Society
play in his/her life as an advocate?
2. What is the name of his/her Provincial Bar Society?
3. In which court or courts does he/she do most of his/her work?
4. Where (from whom) does he/she generally get his/her briefs?

66 See Kleyn D & Viljoen F Beginners guide for law students ( Juta Cape Town 1995) 200.
67 In this regard see Humby T et al Introduction to law 267–269.

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5. Ask him/her to show you an example of a pleading.

6. Write full notes on why an advocate is traditionally not allowed to be briefed
by a client. Enquire from the advocate/attorney.
7. Is it possible for a legal practitioner to be both attorney and advocate? Refer
to section 16 of the Attorneys Act 68 and the Legal Practice Act 28 of 2014.

28 Feedback
Regard this exercise as an opportunity to practise and test your communication
skills. Remember once again that legal practitioners are very busy and that they
are doing you a favour. Make an appointment and do not just turn up at their offices.

As we have indicated earlier, we have not covered all the private legal actors that
you will possibly interact with in the future when you practise law. Please refer to
relevant textbooks for more information on these and other role players that we have
not discussed. It will certainly benefit you a lot. We now focus on public legal actors.

(b) Public Legal Practitioners: These are legal practitioners who are employed
by the state, and invariably serve as the counterparts of the private legal
practitioners.

•• The prosecution (prosecutors and state advocates): Now, refer to section 179 of
the Constitution. You realise that all prosecutions stem from one body,
namely, the National Prosecution Authority. All legal actors who exercise
the authority to prosecute matters on behalf of the state exist according to
set levels in a hierarchical order. The order flows from the top: that is, the
National Director of Public Prosecutions (NDPP), down to Directors of
Public Prosecutions and finally to individual prosecutors or state advocates.
We can, therefore, say that the power to institute criminal proceedings
on behalf of the state rests with the National Director of Public Prosecu-
tions. The Director of Public Prosecutions decides on matters that may
be proceeded with, while the role of the prosecutors or state advocates is
to prosecute these cases.
•• State attorneys: They are civil servants who represent the state (or govern-
ment departments) in civil legal matters or disputes. In this regard they
may bring or defend actions and applications. For more information on
action and application proceedings refer to Learning unit 3 (Reading Legal
Texts) in this study guide. State attorneys operate in terms of legislation.69
The work of state attorneys is similar to what (private) attorneys do, except
that the state attorneys work for the government or its agencies only. The
Attorneys Act 53 of 1979 also applies to this category of legal practitioners.
•• State legal advisors: These are also civil servants who mainly perform the
following functions in terms of playing a supportive role for government
departments. They provide legal advice and research; draft legislation;
advise the state on legal and policy matters at national level; evaluate Con-
stitutional Court decisions or judgments and give advice to the Executive;
assist provinces and sometimes municipalities to limit costs; obtain second
opinions; help municipalities to draft by-laws and provide training in the

68 Attorneys Act 53 of 1979.

69 State Attorneys Act 58 of 1957.

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 LEARNING UNIT 5:  Legal actors

drafting of by-laws; offer training in drafting documents and translating

indigenous languages.

NOTE: There is not much difference between state advocates and prosecutors,

because both perform a similar function. One slight difference might
be that state advocates appear in higher courts whereas prosecutors
appear in lower courts.

ACTIVITY 5.5
1. Refer to Learning unit 3 (Reading Skills) in this study guide to refresh your
knowledge and skill at reading sources of law. Find the following pieces of
legislation: Attorneys Act70 and State Attorneys Act.71 Read the Acts and
summarise the purpose of the legislators. With this knowledge, proceed to
read the purpose of the Legal Practice Act.
2. Distinguish between the following terms: prosecutors and state advocates,
state attorneys and attorneys.
3. Visit any municipality in your area and ask for someone who can help you
with the following:
3.1 Request a copy of any by-law.
3.2 What is a by-law? How different is it from national legislation?
3.3 How does the municipality go about drafting a by-law?

29 Feedback
This activity requires you to integrate a number of skills: you must be able to do
basic research; to communicate and to understand the various types of legislation
in South Africa. All of this is important for your future.

As we mentioned in respect of private legal practitioners, we have not exhausted

all the legal actors in this category. You should refer to relevant textbooks
for more information on these and other public legal practitioners whom we
have not discussed here. In the next section, we discuss the role players whose
function or duties are independent. This is in the sense that they act like an
impartial referee or umpire in sport.
(c) Presiding Officers: The term “presiding officers” is generally used to refer
to individuals who take charge of the court proceedings or proceedings in any
tribunal and make findings and orders after hearing evidence (and arguments)
on the matters at hand. Presiding officers in courts of law are also known as
judicial officers. The term “judicial officers” is used in the Constitution to
refer specifically to judges, magistrates and other presiding officers.72

ACTIVITY 5.6
Read section 174 of the Constitution and write an essay on the appointment of
judicial officers. Use simple language so that the essay will still make sense to
you when you revisit it later in your studies.

70 Attorneys Act 53 of 1979.

71 State Attorneys Act 58 of 1957.
72 See Chapter 8 of the Constitution.

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30 Feedback
It is a good idea to summarise the constitutional requirements first in a table. You
can also use a mind map. But remember that from there you must transform it
into an essay that sets out everything clearly.

We now look at the various presiding officers in the legal system.

•• Judges: These officers preside over matters or cases brought to the higher
courts. Higher courts in this context include various divisions of the High
Court, the Supreme Court of Appeal and the Constitutional Court. Judges
are addressed as “my Lord” or “my Lady”.
•• Magistrates: These are civil servants who are nevertheless independent ju-
dicial officers who perform a role similar to that of judges. However, they
only serve in the lower courts, namely, district and regional magistrates’
courts. All magistrates (i.e. district and regional court magistrates) are ad-
dressed as “Your Worship”.
•• Small Claims Court commissioners: These commissioners are judicial officers
employed in terms of legislation.73 Normally, persons appointed as Small
Claims Court commissioners are experienced advocates and attorneys. Their
legal knowledge and experience are used to arrive at judgments through an
“equitable, problem-solving approach”.74 An interesting aspect about the
Small Claims Court is the fact that no party to the dispute may be repre-
sented by a legal professional (e.g. attorney, advocate). It thus becomes the
role of the presiding officer (commissioner) to guard the interests of all
parties involved. Small Claims Courts deal with matters involving claims
that are relatively small.

ACTIVITY 5.7
You may consult an attorney/advocate or any court official in your area (It is also
possible that a good senior law student will be able to help.) and ask them the
following:

1. Which matters may be heard by a Small Claims Court?

2. Can small criminal matters (e.g. minor assault or petty theft) be heard in
the Small Claims Court? Explain.
3. At present, a claim should be less than R …………. to be heard in the Small
Claims Court.

31 Feedback
This information is of course also available from other sources, like the internet
or the Act itself.

The next division or category of legal practitioners that we discuss is court

officials.

73 Small Claims Court Act 61 of 1984.

74 Humby et al Introduction to law 272.

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 LEARNING UNIT 5:  Legal actors

(d) Court Officials: These are the persons (or civil servants) who play a supportive
role to the courts to ensure the effective administration of justice. Some of
the court officials that you will interact with are the following:

•• The Registrar of the High Court: This official is appointed for every High Court.
The office of the Registrar of the High Court is responsible for the admin-
istration of the court. This involves keeping safe important information
in respect of High Court matters (e.g. pleadings), issuing of summonses,
receipt of fines, management of court files and compiling a court roll. The
word “court roll” refers to a list of the cases that are to be heard in a court
on a particular day.
•• The Clerk of Court: He/she is appointed for the sole purpose of controlling
the administration of a magistrate court. The Clerk of Court performs
similar functions to those of the Registrar in the higher courts. He/she (i.e.
the clerk of court), however, renders these functions in the lower courts.

ACTIVITY 5.8
You may do this exercise either as a member of a study group or as an individual.

Visit a local court of law and interview one or two of the following on what their
functions or daily responsibilities involve. Take notes, which you will use to prepare
a report that you will present to the group.

OR

Consult any useful source (textbook etc) and write notes on the functions of two
of the following:

•• The Master
•• The Family Advocate
•• The Sheriff
•• The Police
•• The Maintenance Officer
•• Court manager
•• Court orderly

32 Feedback
Remember that in each of these cases the emphasis should be on the way in which
these functionaries make the administration of justice more effective.

Finally, we take a brief look at other legal officers and functionaries who play a role
in the legal system.

(e) Other Legal Officers and Functionaries: These are other legal actors whose
functions or work support and promote the administration of justice and the
work of the courts. These include: (i) The Registrar of Deeds (ii) Companies
and Intellectual Property Commissioner (iii) Commissioner of Oaths (iv)
Marriage Officer

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5.3 CONCLUSION
This is the end of Learning Unit 5. We hope that you have done all the activities.
This learning unit dealt with a number of role players in our legal system in terms
of the divisions they belong to and the functions that they perform. The immediate
benefit of having conscientiously worked through this learning unit is that you will
now have an almost perfect idea of who you will expect to interact with when you
do your formal court observation project. The knowledge from this learning unit
should be integrated with the previous learning unit, particularly the section on
litigation and advocating in a court of law. We re-emphasise that the Legal Practice
Act has substantially affected the legal system, particularly how the various role
players are required to operate.

There is a history to the present arrangement in our legal system particularly as

regards the various “legal actors”. The Legal Practice Act (2014) has changed the
face of the legal profession. You are urged to refer to the “old” Acts (Attorneys Act
53 of 1979 and Admission of Advocates Act 74 of 1964) together with the Legal
Practice Act 28 of 2014 in order to master the roles of various legal actors and how
they are admitted to the profession.

Do not underestimate the important role that ordinary citizens and African courts
(traditional courts) play in the legal system. There needs to be a critical engagement
or discourse on the Legal Practice Act, especially on how it is deliberately silent on
the role of traditional courts (makgotla/ tinkundla).

The next learning unit focuses on numeric or numeracy skills for legal practitioners.
You will notice, as you go through that learning unit, that we make the important
point that the learning unit is not a programme in mathematics at all, but rather a
functional unit on how to work with numbers.

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 LEARNING UNIT 6 LEARNING UNIT 6
6 Numeric skills

6.1 INTRODUCTION
You may be wondering why you have to do a course in numeracy skills in your legal
studies. Some of you might be saying that you did not expect to do “maths” when you
chose to study law. In fact, many students think so. However, the reality is that we
live in a modern society, which is invariably numeric. We simply cannot function in
the present world without any sense of numbers or basic calculations. We know that
some of you have had some exposure to mathematics, while others have a sketchy
or dim sense of the subject. It is important to be mathematically literate because the
world around us, and our everyday lives, are somehow influenced by numbers. It is in
this respect that we strongly feel that every citizen in this increasingly mathematised
modern society needs to be truly mathematically literate.75

Our lives are characterised by challenges in terms of which we are frequently required
to use and/or apply our knowledge of numeric and basic calculations. This might
involve our roles in the political and socio-economic spheres. It seems that we cannot
really escape having something to do with numbers even if we wish to. We come
back to this point later in this section.

This learning unit, therefore, aims to help you learn and develop the basic skills
of manipulating numbers and doing basic calculations necessary for legal practice.
We need to mention immediately that learning numeracy skills requires practice,
practice and more practice from the student. As we emphasised earlier in the learning
unit on “study skills” (i.e. Learning unit 2), you should not memorise the content
of this study guide. Our approach is that you relate the information to meaningful
practical contexts.

You will notice as you go through this learning unit that we give you a set of activities
after every numeric aspect or topic. Please do (and practise!) these activities until you
are really confident that you can apply them whenever an authentic situation requires
you to. Where possible, we urge you to involve members of your study group when
practising these activities. We give feedback on some activities, but please try to do
the activities yourself before checking the feedback provided.

Finally, we need to make it clear that you do not need to have a thorough maths
background to do this learning unit. Our aim in this this learning unit is to give
you the opportunity to learn the basic skills of working with numbers. Once again,
this is not course in mathematics!

75 Kleynhans B and Grobbelaar C Numeracy skills for the law (Centre for Higher Education Studies and
Development UFS Bloemfontein 2008) 4

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Outcomes
At the end of this unit you should be able to do the following:
1. Explain why a lawyer needs good numeric skills.
2. Solve basic numeric problems.
3. Do some basic calculations.
4. Relate numeric calculations to meaningful real-life contexts.
5. Apply basic numeric skills to contexts of law and legal practice.
6. Draw up an account for a client.

6.2 WHAT IS NUMERACY?

Numeracy is the ability to understand and use numbers. As much as we are concerned
about being literate (i.e. being able to read and write)76 we should also be concerned
about being numerate. Numeracy is the ability to read, write and understand numbers,
statistics, graphs and calculations.77 Palmer et al78 consider numeracy to be “the study
of numbers and their manipulation”. Having numeric skills implies that a person
can work confidently with numbers, understand numeric expressions, react to them
and, where necessary, change ordinary language to numeric codes. In short, it can
thus be said that a numerate person may communicate or transmit information by
using numbers, statistics, graphs or calculations. There are many situations where
such means of communication is required. Think of the accounts we receive from
shops, quotations, or even the way tax certificates are prepared.

Earlier on we made the important point that we live in a modern world where
numbers dictate almost every aspect of our lives. The following activity illustrates
the predominant presence of numbers in our daily lives and activities.

ACTIVITY 6.1
Underline all the elements connected with a number in the following text:
Numbers are everywhere! You wake up at 07:00 and realise it is time to get out of
bed. You put on your size 34 clothes and size 8 shoes. You run to catch the bus
on route 2 or you drive your own 1 600 cc car at 40 km per hour in the traffic while
you listen to the radio which is broadcasting on 94.7 FM. The presenter reads the
traffic report every 30 minutes.
You attend class in room 102 and write your notes on an A4 desk pad. You write
with a pen that costs R3,36. For lunch you eat a sandwich that cost you R12,00.
After lunch you study in the library on the third level. You want to get 18 out of
30 for your test to get a good year mark. You go home at 18:00 and watch the
television programme on channel 3 while you are lying on the three-seater couch.
At 22:00 you are tired and go to bed. You sleep on a single bed under two blankets
costing R198,00 each.
In order to plan ahead, you should be able to work out departure times, draw up a
budget, keep your expenses low, and make appointments – basically everything
that needs a numeric calculation!

76 In fact, Barrat A et al Skills for law students: fresh perspectives (Pearson Prentice Hall Cape Town 2008) 320
state that a literate person is able to recognise letters, words, sentences and paragraphs, and understand
their meaning.
77 Barrat A et al Skills for law students 320.
78 Palmer R et al Becoming a lawyer: fundamental skills for law students 291.

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 LEARNING UNIT 6:  Numeric skills

33 Feedback
This activity is pretty straightforward. Doing it should really help you realise how
we almost always deal with numbers without really being aware of it.

Before we proceed, let us first solve the riddle of the bottle and the cork.

Illustration
A bottle of cooldrink and its cork together cost 11c. The bottle is 10c more
expensive than the cork. What is the price of the cork?
Solution: The answer is not 1c! Why not? If the cork costs 1c and the bottle
10c, the bottle will only be 9c more than the cork and not 10c. The bottle
therefore costs 10½ c and the cork ½ c. Were you caught out? The message of
this riddle is that you should not act precipitately in this chapter. The motto is:
little by little, but you will have to work constantly and thoroughly. Do every
exercise as required from you and the rest will look after itself. A sage once
said: ‘‘I hear – but I forget; I see – and I remember; I do – and I understand!’’

6.3 WHY LEGAL PRACTITIONERS OR LAWYERS NEED

NUMERACY SKILLS
Before we discuss the relevance of numeracy skills to legal practice, we need to make
the point that a thorough understanding of the basic numeric rules is required for us
to do our normal everyday calculations effectively.79 Numbers are also important for
a lawyer because there are many situations that will require you to apply numeracy
skills. Unfortunately, there is a persistent perception or myth held by many people
in society that lawyers do not need mathematics literacy or numeracy. It is common
that even at school level most learners are fed the “misinformation” that mathematics
is not required in legal studies. Many of you were told that you need to study history
to qualify for studies in law.

The reality, however, is that you will later discover that almost every aspect of legal
studies or legal practice requires numeracy skills. It would indeed be a sad situation
if your clients were to discover that you cannot do simple, basic numeric calculations.
Do you think they will be confident that you can be relied on as someone who can
take care of their affairs (e.g. claims, accounts, estates)? When you have your own law
firm one day, you will have to pay your employees their salaries, you will also have to
work out consultation fees, divide estates, determine damages especially concerning
motor vehicle accidents, work out the interest on defamation claims, and so on. Bad
numeric skills will disadvantage you in your practice.

The following are further examples of some of the things that will require that you
apply your numeracy skills as a lawyer or legal practitioner:80

•• As an attorney you will keep account of your clients’ money in a trust account.
•• As an executor of an estate, you should be able to calculate the monetary value
of the estate, Master’s fees, and administration fees of the estate.

79 See Palmer R et al Becoming a lawyer 291.

80 These have been adopted from Kleynhans and Grobbelaar Numeracy skills 13.

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•• Certain areas of law such as tax law or commercial law require fairly advanced
mathematics literacy.
•• When you advise on matters with financial implications (e.g. ante-nuptial
contracts, commercial contracts) you need numeracy skills.
•• Calculating damages when making claims on behalf of your clients.
•• As a lawyer you must monitor and manage your own business (income and
expenses, calculating clients’ bills and VAT amounts to be paid).

Sadly, many lawyers or legal practitioner have been found not to have the necessary
numeracy skills to deal with the demands of the profession. A former Judge of the
High Court made the following sharp remark in 2007:

Recent surveys have uncovered the unfortunate fact that lawyers in this coun-
try, in particular the more recent graduates, are lacking in numeracy skills. It is
indeed a woeful fact that the current curriculum of the undergraduate LLB has
produced lawyers with both poor literacy and numeracy skills. Basic principles
of mathematics which are essential to a legal practitioner are sorely lacking.81

Twelve years later, there are reports that some universities still produce such law
graduates. We must mention, though, that there are certain basic numeracy skills that
we do not teach you, especially at university level. We must take basic knowledge for
granted and consequently only focus on issues that are relevant for a lawyer. If you feel
uncertain about the calculations, we urge you to take the initiative to look for help.

There are basic numerical concepts that one must master before one can be said to
be effectively numerate. The common basic concepts in numeracy are addition (+),
subtraction (–), multiplication (×) and division (÷). In the next sections we discuss
these concepts, and also illustrate using examples. The discussion is accompanied
by activities which, as we have just said, you must make the effort of doing as many
times as possible.

6.4 ADDITION AND SUBTRACTION OF NUMBERS

Example 1
Julius and Mbuyiseni decide to form a partnership and to combine their assets and
liabilities. Julius’s assets are worth R120 000 and his liabilities are R3 500. Mbuyiseni’s
assets are worth R168 000 and his liabilities are R54 000. Determine the value of
the partnership assets.

Assets: what you possess, e.g. your car, house, policies, cash.
Liabilities: your debt.
Assets: R120 000 Liabilities: R 3 500
+R168 000 +R54 000
R288 000 R57 500

Assets minus liabilities: R288 000 – R 57 500 = R230 500

The total value of the partnership is therefore R230 500.

81 Hussain I “Preface” to Kleynhans and Grobbelaar Numeracy skills 3.

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 LEARNING UNIT 6:  Numeric skills

Example 2: Addition
If we calculate, we say we have to find the sum of a few numbers. For example, the
sum of 12 and 13 = 25. It does not matter in which order it is done. In other words
we can say: 12 + 13 = 25 OR 13 + 12 = 25.

If we must find the sum of more numbers, for example 3 + 4 + 5 + 6 = 18 we can

also put it this way: 3 + (4 + 5)

+ 6 = 18 OR (3 + 4) + (5 + 6) = 18.

In the first example we calculated 4 and 5 and then added the 3. In the second
example we added 3 and 4 together, added the 5 and 6 together and then we added
7 and 11 to get the sum of 18.

NOTE: The order in which we add numbers does not matter. But note that this is
only applicable to addition. Thus 6 – 3 is not the same as 3 – 6!

Example 3: Subtraction
9–3–2 = 4 OR (9–3)–2 = 4 BUT 9–(3–2) = 8

We must be careful when we subtract! The calculation within the brackets must be
done first! When we subtract we say we have to find the difference between numbers.

ACTIVITY 6.2
1. Nomzamo, Zenani and Zindzi decide to put their assets together in a
partnership.
Calculate the total value of the partnership if Nomzamo contributes R243 500,
Zenani gives R543 285 and Zindzi R68 358.
2. Your client has to pay R11 000 for damages as well as R188,00 interest.
What is his total liability?
3. The assets of a deceased estate are worth R885 000. The debt of the estate
is R153 684. Calculate the distributable amount.
4. Makolobe, Mpapa and Maponyane are partners in a Lephepane firm. The
total value of the partnership is R1 355 000. Maponyane wants to leave the
partnership. He withdraws his full contribution of R554 000. What is the
value of the partnership now?
5. Your client, Mmejika, has to pay maintenance to his estranged wife, Mmaphe-
tole. He earns R12 000 per month. His deductions are R2 440 for PAYE,
R890 for pension and R12,33 for insurance. Calculate his nett earnings
per month.
6. The values of the assets of a deceased estate are R29 250, R1 456 and
R11 394. The liabilities are R330,00, R456,00 and R11 384. Calculate the
distributable amount.

34 Feedback
The various aspects in these calculations will require you to consider basic prin-
ciples such as addition and subtraction. For instance, if Maponyane leaves the
partnership, it therefore implies that you should subtract the value of his contribution.

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6.5 MULTIPLICATION AND DIVISION

Example 1: Multiplication
You have three secretaries employed in your company. Each one earns R8 800 per
month. What are the monthly expenses you have to pay them?
R 8 800 × 3 = R26 400

The three secretaries will cost you R26 400 per month.

It does not matter in which order you multiply. For example:

4 × 2 × 5 = 40 OR 4 × (2 × 5) = 40 OR 2 × (4 × 5) = 40

When we multiply we say we find the product of numbers. For example, the product
of 4 and 2 is 4 × 2 = 8.

Example 2: Division
Mmapitsi, Mmakoma and Modjadji are members of a clothing company. They share
equally in the profit of the business. The yearly profit is R300 000. How much will
each one get?

R300 000 ÷ 3 = R100 000

Each one gets R100 000

When we divide a number we call the answer we got from that the quotient. BUT
PLEASE NOTE:
24 ÷ 4 ÷ 2 = OR (24 ÷ 4) ÷ 2 = 3
BUT 24 ÷ (4 ÷ 2) = 12

The calculations in the brackets must be done first!

ACTIVITY 6.3
1. You have to pay two secretaries R4 540 each per month. Calculate each one’s
yearly salary as well as your salary expenses for both of them for a year.
2. You worked for 20 hours and were paid R700 per hour. How much were
you paid?
3. A client owes your firm R18 666. He is allowed to repay the amount interest
free over six months. How much does he have to pay you every month?
4. Four attorneys earn R10 000, R23 000, R20 000 and R31 000 respectively
each month. Calculate their average income per month (average = distrib-
uted equally).

35 Feedback
Follow the examples and principles we have just discussed (i.e. multiplication
and division) to do these activities. These principles apply to the facts given in
the activities.

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 LEARNING UNIT 6:  Numeric skills

6.6 FRACTIONS, DECIMALS AND PERCENTAGES

6.6.1 Fractions
Before we can do calculations, it is important to understand the following terminology:
Fractions: A fraction can be described as a number that is only part of a
whole.

If you cut an orange in half you will have two halves. Numerically it will look like
this: ½ + ½ = 1. One ½ is therefore a fraction of 1 whole. Half a dozen (6) is a
fraction of a dozen (12); or ½.

Numerator: The top number in a fraction is called a numerator. For example:

In ¾, 3 is the numerator. It indicates the number of a specific
fraction – here, three quarters.
Denominator: The bottom number in a fraction is called the denominator.

For example: In ¾, 4 is the denominator. This names the fraction – in this instance
– quarters.

Fractions must always be written in their simplest form. For example, when you
have the following fraction:

Divide the numerator and the denominator by the biggest possible amount that
both can be divided by.

12 ÷ 12 = 1
36 ÷ 12 = 3

The simplest form to write is thus .

As said earlier, a fraction indicates a part of the whole. If a dozen is 12 then a half
a dozen is half of 12. We can write it as ½ × = 6. A third of a dozen is then as
 × = 4.

Illustration
For a lawyer or legal practitioner it can look something like this: Majiyafela, a rich
man in Motupa Village, had four children. When he died he left them R20 000. In his
will he had said the four children were the only heirs and they had to inherit equally.

Four parts are therefore the whole and = R20 000

Each one will get a ¼ of R20 000 = ¼ × = R5 000

Therefore, each child will inherit R5 000.

ACTIVITY 6.4
1. Write in its simplest form.
2. A deceased farmer in the Letsitele Valley of Mmamatlhola leaves behind
a herd of 600 cattle for his three sons. The eldest gets half of it and the
youngest gets of the rest. How many cattle will the youngest get?
3. If you have to drive 48 km and you have already driven 12 km, which frac-
tion of your journey have you completed?

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36 Feedback
Follow the examples and illustrations we have just given and do the activities.
Where possible, and necessary, check with a member of your study group, your
study mate or any person who can help.

6.6.2 Decimals
Decimals: A decimal is written by using a comma followed by numbers indicating
tenths, hundreds, and so on. For example:

= 0,1

= 0,01

= 0,001

In other words, a decimal is another way of representing a fraction.

ACTIVITY 6.5
Write the following fractions as decimals:

, , , .

37 Feedback
This is a simple activity meant to help you convert fractions into decimals. Again,
look at the example given above before attempting this activity.

6.6.3 Percentages
Percentages form a big part of our daily lives. When we read a newspaper or listen
to the news over the radio, the reporter or presenter would, for example, say there is
a 60% chance of rain; or a retail store can advertise a sale for less 25%. VAT (Value
Added Tax), which we all have to pay on certain items is calculated at 15% of the
original price. When we borrow money from the bank, we have to pay a percentage
in interest. As a student, your results are indicated in percentages and you need a
certain percentage to pass.

Percentages are in essence a fraction of one hundred. VAT therefore is .

Example 1
If you got for TEST A, for TEST B and for TEST C, in which of the tests
did you obtain the highest percentage?

TEST A: × = 52%

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 LEARNING UNIT 6:  Numeric skills

TEST B: × = 64%

TEST C: × = 85%

You did the best in TEST C.

But what is your average for this subject at this stage?

52% + 64% + 85% = 201 ÷ (the number of tests written) 3 = 67%

Example 2
Change ¾ to a percentage: ¾ × = 75%

Example 3
If Bafana Bafana wins 15 soccer matches and they lose 5; what percentage of matches
did they win? Total number of matches played: 15 + 5 = 20

Matches won : 15

Now divide the matches won by the matches played and calculate the percentage:

× = 75%

Thus, they have won 75% of their matches.

Example 4
You earn a salary of R6 000 per month. Your employer indicates that he will give
you a 20% increase. How much will your salary be after the increase?

Your salary of R6 000 = 100%

Increase = 20%
Thus your new salary is 100% + 20% = 120%
6000 + ( 6000 × ) = new salary
6000 + 1200 = R7200
Your new salary will be R7200.

Example 5
The distance between two towns is 175 km. When the highway, which is under
construction, is finished, the distance will be 12% shorter. What will the distance
in km be then?

New distance = 175 km – 12%

175 – ( 175 × )
175 – 21
= 154 km

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ACTIVITY 6.6
1. To pass the SCL1501 course you need a semester mark out of 10 and an
exam mark out of 90. If you get 8 out of 10 and your exam mark is 54% what
will your final mark be?
2. Change to a percentage.
3. Your client alleges that she has been unfairly dismissed from work. She was
supposed to work 284 days. She was absent for 78 days during this period.
What percentage of time did she not work?
4. Your employer indicates that you will get an increase of 8,25% on your salary
at the end of May. You will also receive a once-off bonus of R5 000. Your
normal salary is R7 500 per month. How much will you get at the end of May?
5. The international price for a barrel of oil is $108. The rate of exchange is
R7,86 = $1. If we can produce petrol locally, we can save 12% on each bar-
rel. How much will a local barrel of oil cost?

38 Feedback
Examples 1 to 5 given above deal with the various principles applicable to the
five questions in this activity. Once again, after completing the activity, check your
solutions with your tutor or study mate.

6.7 POCKET CALCULATORS

How do we work out 5 + 6 x 3? Is the answer 33 or 23?

Mathematicians have agreed that calculations must be done in a specific order. All
calculations must be done in the following order:

•• left to right
•• brackets
•• multiplication and division
•• additions and subtraction
Therefore: 5 + (6 × 3) = 5 + 18 = 23

But: (5 + 6) × 3 = 33

BE CAREFUL!
Some calculators do this automatically, but others not. Look at 4 + 3 × 6–4 × 2.
Some calculators will give you the answer = 76

BUT when the calculations are done in the correct order, the CORRECT answer is 14!

4 + (3 × 6)–(4 × 2) = 14

ACTIVITY 6.7
You fly from OR Tambo International Airport in Johannesburg to Port Elizabeth in
the Eastern Cape. You have to hire a car to visit a client in Rhini, Makhanda. You
ask two agencies for quotations. The Siyabulela Travel Agency rents out cars for
R118 per day plus R1,15 per km. Re a Tloga Agency rents out cars for R124 per

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 LEARNING UNIT 6:  Numeric skills

day plus R1,20 per km. What is the difference between the two agencies in terms
of the total rental expenses for a journey of 1 550 km, if it will take you two days?

39 Feedback
It is important to note that this activity requires you to apply aspects of multiplica-
tion, addition, division and subtraction. Tip: Know when to apply which of these
aspects to the given facts in this activity.

6.8 APPORTIONMENT
We constantly make comparisons between various things. It is simply one of the
normal things we do in life. This happens quite frequently in the daily activities
that legal practitioners (lawyers) have to carry out. For example, we may say a Range
Rover is a better car than a BMW. Such a comparison says nothing except that it
is our opinion. But if we say the strength of a Range Rover is three times higher
than that of a BMW, we have a comparison that can be tested. We can then say the
strength of the Range Rover in comparison to the BMW is: 3 to 1 or 3:1.

Example 1
You and your partner have to share R10 000 on the basis of 5:3. How will you
determine how much each of you has to get?

SOLUTION: Add the portions together 5 + 3 = 8

Divide R10 000 by 8 = R1 250
Therefore, one portion = R1 250

You get five portions, thus 5 x R1 250 = R 6 250

Your partner gets three portions, thus 3 x R1 250 = R 3 750
R10 000

The apportionment can also be done as fractions: and .

Example 2
Three friends, Sobukwe, Biko and Madikizela invest their money in a financial scheme.
The amounts invested by them are respectively R10 000, R12 000 and R6 000. At
the end of the first year their profit is R14 350. Each one receives his share of the
profit according to the extent of his contribution. How much does each one get?
SOLUTION: SOBUKWE : BIKO : MADIKIZELA
R10 000 R12 000 R6 000

(Make the amounts simpler by dividing the biggest number possible into all of them.
R2 000 seems to be the biggest amount that will divide into all of them.)

In other words 5 : 6 : 3
Now calculate the three numbers: 5 + 6 + 3 = 14
Divide the total profit by 14: R14 350 ÷ 14 = R1 025 (one portion)

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Sobukwe gets five portions = 5 × R1 025 = R5 125

Biko gets six portions = 6 × R1 025 = R6 150
Madikizela gets three portions = 3 × R1 025 = R3 075
R14 350

OR YOU COULD HAVE SAID:

Sobukwe gets × R14 350

Biko gets × R14 350

Madikizela gets × R14 350

ACTIVITY 6.8
When Mr Lebowa died, he left behind three children: Seshego, Lebowakgomo and
Lenyenye. The value of his estate is R12 000.

1. How much will each child get if they share equally?

2. How much will each child get if the amount is divided on the basis of 2 : 3 : 4?

40 Feedback
Follow the examples we have just given above to do this simple activity.

6.9 RATE OF EXCHANGE

Globalisation and the internet have made it possible to do business in different
countries. Products are imported and exported on a daily basis. Because all countries
do not use one single monetary system it is necessary to know how to convert money
from one currency to another; for example, Rand to Dollar. The rate of exchange
differs daily. It is, therefore, essential to find out what the current rate of exchange
is before you conclude a transaction abroad. You can find the rates of exchange in
a newspaper or on the web. Financial institutions should also be able to give you
information on the rate of exchange.

Example 1
You have to go to London to investigate a case of fraud. You have R10 000 to spend
on gifts for your children. How many pounds will you have if the exchange rate is
R15,00 = £1 ?

R10 000 ÷ 15,00 = £666,67.

ACTIVITY 6.9
You are trading in wool. You have completed a contract for $ (US) 6 554 by paying
it electronically. How many Rand do you have to deposit in your bank in order for
the transaction to go through. The rate of exchange is R7,60 = $1.

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 LEARNING UNIT 6:  Numeric skills

41 Feedback
To complete this task, you need to revise this section on “rate of exchange” and
make sure you understand the principle. Follow the calculations in example 1 to
do the activity.

6.10 INTEREST
It is a necessity for almost everyone, including businesses, to borrow money from
a financial institution. The institution lending you the money is entitled to charge
interest to make a profit.

Things bought on credit, such as appliances from furniture stores, also include a
percentage of interest. The interest rate is presented as a percentage. In other words,
you may for instance have to pay 12% or 17% interest.

The amount borrowed or the amount you bought for, if you bought something on
credit, is known as the principal debt. Interest is a percentage of this principal debt.
Money is lent out for a specific period over which you have to repay it.
Interest therefore = principal debt × interest rate × time agreed upon. The
principal will always be in Rand.
The interest is always in a percentage.
The time will be in years. A two-month period is, therefore, of a year, 3
months are ¼ of a year, 6 months are half a year, and so on.

Example 1
You borrow R200 000 to buy a BMW. The interest rate at the bank for motor vehicles
is 17,25%. You are going to repay the amount in 54 months. How much will you
eventually pay for the car?
Interest = principal debt × interest rate × time
= 200 000 × 17,25% × 4 years and 6 months
= 200 000 × 0,1725 × 4,5
= R155 250

Therefore, the principal debt is R200 000 + interest of R155 250 = final amount paid
for the car. The BMW will eventually cost you R355 250 after 54 months.

Example 2
If you invest R120 000 at a bank for a year and you earn 15% interest per annum,
how much interest will you earn for the year?

R120 000 x 15%
R120 000 x = R18 000

You have earned R18 000 in interest for the year.

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6.11 TAX
VAT (Value Added Tax) is a kind of tax everyone must pay to the government. VAT
is added to nearly all products bought or services rendered. The VAT rate at this
moment in South Africa (2019) is 15%. In other words, if you pay R115,00 for an
item, VAT inclusive, R15,00 goes to the state.

Example 1
A cooldrink costs R9,80 VAT inclusive (when VAT has already been added). What
is the price for the cooldrink VAT exclusive (when VAT is not included)? In other
words, R9,80 is 115% and we want to know what 100% is. So we divide by 115 and
multiply by 100. In this regard we urge you to

STUDY THE FOLLOWING FORMULA:

In order to work out the amount without VAT you have to put:
× the amount inclusive of VAT

According to our example: × R9,80 = R8,52

VERY IMPORTANT!!!!

When you have to ADD VAT you can simply take your pocket calculator and add
15% to the amount. For example 1567 + 15% = 1802,05.

BUT if you have to subtract VAT you HAVE TO USE THE FORMULA 100/115!
(Remember the riddle of the bottle and the cork at the beginning of this learning unit!)

ACTIVITY 6.10
1. A plastic motor car costs R123,45 VAT inclusive. How much will it cost
excluding VAT?
2. An advocate sends you an account for R6 788 VAT excluded. What is the
amount that you have to pay him VAT inclusive? (Note that in terms of the
law VAT must be added to professional services.)

42 Feedback
Please note that (i) we apply the formula 100/115 when we have the VAT inclusive
amount and we want to establish the amount before VAT was added (i.e. VAT ex-
clusive amount). (ii) When we have the VAT exclusive amount, and we are required
to calculate the amount inclusive of VAT, we simply add 15% to the given amount.

6.12 APPORTIONMENT OF DAMAGES

When you practise as an attorney (legal practitioner), the apportionment of damages
after a motor vehicle accident will be a big part of your responsibilities.

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Example 1
Two motor vehicles, a Jeep and a Polo collide at a crossing. The owner driver of the
Jeep was found to have been 30% negligent and the owner driver of the Polo was
found to have been 70% negligent. The damage to the Jeep amounts to R50 000.
It was uneconomical to repair the Polo. The pre-accident value of the Polo was
R150 000. The salvage value of the wreck is R10 000. Which driver must pay damage
to which owner and what should be the amount of damages?

SOLUTION:
The owner-driver of the Polo was 70% negligent and therefore has to pay 70% of
the damage to the Jeep:
× R50 000 = R35 000
The owner of the Polo has to pay the owner of the Jeep R35 000.

The owner-driver of the Jeep was 30% negligent and therefore has to pay 30% of
the damage to the Polo.
Pre-accident value–value of the wreck = total damage
(R150 000–R10 000 = R140 000) x = R42 000

The owner of the Jeep has to pay the owner of the Polo R42 000.

It does not make sense that the owner of the Jeep pays R42 000 to the owner of the
Polo, but then the owner of the Polo must pay the owner of the Jeep R35 000. The
owner of the Jeep can only pay the owner of the Polo R42 000–R35 000 = R7 000.

NOTE: The degrees of negligence will not necessarily add up to 100.

ACTIVITY 6.11
Based on the facts given above, pretend that the owner-driver of the Jeep was
35% negligent and the owner driver of the Polo was 25% negligent. Which driver
must pay damage to which owner and what should be the amount of damages?

43 Feedback
Just change the figures accordingly, and follow the example given above to do
this activity.

6.13 LEGAL PRACTITIONER’S (ATTORNEY’S) ACCOUNT

Before we draw up a legal practitioner’s account it is important to keep a few points
in mind.

You as a legal practitioner or an attorney have studied hard and for a long time. You
are, therefore, entitled to ask to be paid for your services. From time to time, the
profession, through the Legal Practice Council and relevant bodies release scales of

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the amounts you may charge your clients. When you start your practice one day you
will have to find out what their standard rates are.

The following historical background information is important in order for you to

understand how the Legal Practice Act has changed the briefing structure in the
profession. The following text was in effect prior to the full operation of the Legal
Practice Act 38 of 2014:

A client never pays an advocate directly. An advocate always has to work with
a brief from an attorney. The attorney pays the advocate and then recovers
the amount from his/her client. The advocate’s fees are therefore an expense
for the attorney and need to be listed as an expense inclusive of VAT.

Task: Find (and read) the Legal Practice Act 28 of 2014 to establish how referral
work between various legal practitioners is dealt with in terms of this Act.

Further note that according to tax legislation, attorneys and advocates have to charge
VAT on all their accounts.

Example
Pretend you are a legal practitioner in your own law firm. You and your client agree
that you will invoice him monthly for services rendered. You agree on the following
terms:

•• R25 for every letter written.

•• R8 postage for every written letter posted. (We have to make the point that it is
not a given that all letters are posted as there are different modes of delivery, e.g.
a letter may be delivered by hand. Further, note that postage is an expense for
an attorney and the amount should be VAT inclusive.)
•• R10 for 5 minutes or part thereof for each telephonic enquiry (Note: Here the
client pays for the making of the call (i.e. your service) as well as the actual costs
(i.e. your expense) to the service provider e.g. Telkom, Vodacom, MTN!)
•• R250 per consultation of 30 minutes or any part thereof.
•• R300 for a summons
•• R280 for an affidavit
•• VAT = 15%

During last month you did the following for your client:

•• You wrote five letters and posted all of them.

•• You made one telephonic enquiry for 18 minutes.
•• You consulted twice for two and a half hours.
•• You compiled a summons.
•• You drafted an affidavit.
•• You briefed an advocate. His fees were R850 VAT inclusive.
The following will be your clients’ account:
(For the purpose of this exercise ignore stamp costs except postage stamps, also
ignore the service provider’s costs concerning the telephonic enquiry).

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Services rendered Fees Expenses

(VAT excl) (Vat incl)
5 Letters written R125,00
5 Letters posted R46,00
Telephonic enquiries (18 min) R40,00
Consultation (5 hours) R2 500,00
1 Summons R300,00
1 Affidavit R280,00
Referral Fees (legal practitioner/advocate) R850,00
Subtotal R3 245,00 R896,00
Plus VAT15% R486.75
Plus expenses R896,00
R4 627,75

We have a few comments on the above example of your client’s account. Always
make sure that the account has fees and expenses/disbursements columns.

The expression “or part thereof” is important. This means that you will charge the
full amount for a certain part or portion of something (e.g. ½ a page as if it is the
whole page).

The R46,00 in the Expenses column is the amount of postage stamps VAT inclusive
(i.e. R8 x 5 letters).

Remember to ensure that the amounts entered in the Expenses column are always
VAT inclusive. Thus if you are, for instance, told that the legal practitioner you
referred the matter to (i.e. the advocate) charged you R600 VAT exclusive, the amount
you enter must be inclusive of VAT ( + 15%) because the referral fees will be your
expense. Thus the amount entered should be R690,00.

Before preparing an account, it is important to begin by identifying which transactions

(items or service) are your fees, and which are your expenses so that you enter them
in the relevant columns. Using the above example for guidance, try the following
activity:

ACTIVITY 6.12
You and your client agree on the following concerning your account:

•• R10 for every letter written.

•• R6 postage for every letter posted. R12 for every letter received.
•• R25 for every telephone call of 3 minutes.
•• R130 for every consultation of 15 minutes or part thereof. R300 for a summons.
•• R50 for the sheriff to serve the summons. R280 for an affidavit.

During the past month you did the following for your client:

•• You wrote 6 letters; 3 were posted and 3 were delivered by hand. You received
4 letters.
•• You briefed another legal practitioner (advocate) who submitted an account
for R1 250 (VAT excluded). You compiled a summons and the sheriff served
it on the defendant.
•• You drafted two affidavits.

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•• You made 16 telephone calls of 6 minutes each (ignore the service provider’s
costs)

Prepare your client’s account.

44 Feedback
You need to follow the example of the legal practitioner’s (attorney’s) account given
above at 6.13, and also take heed of the points that we have just mentioned about
an attorney’s account. However, make sure that you practise this kind of exercise
(account) again and again and again!

6.14 CONCLUSION
This learning unit, on numeracy skills, should not be underestimated. We hope you
have studied it with a practical “eye”, and that you did not treat the content given as
mere abstract numbers. We hope that you were able to relate the numbers to their
meaningful practical contexts.

We are confident that you have appreciated the vital role that numeracy and numeric
skills play in the practical legal world, especially for both legal practitioners who
work on briefs (i.e. advocates) and those who work directly with the public (i.e.
attorneys). This is also the end of the module Skills Course for Law Students. We
hope you have enjoyed it. Most importantly, we have no doubt that this module has
equipped you for your future studies and practice as a lawyer. Finally, you should
bear in mind that the Legal Practice Act has changed how legal practitioners who
deal directly with the public (i.e. attorneys) manage their financial activities. Ask
yourself questions around how the Act addresses issues relating to the Fidelity Fund
and the Fidelity Fund Certificate.

Keep this study guide safe for the duration of your legal studies, and possibly beyond
that period. We are certain that it will help you!

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