SCL1501 Study Guide PDF - University of South Africa

© 2019 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria SCL1501/1/2020–2022 70654247 InDesign HSY_Style CONTENTS Page 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 iv Contents 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 SCL1501/1v vi 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. SCL1501/1vii 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.) viii 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 SCL1501/1ix 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. x 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). SCL1501/1xi 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. 2 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 SCL1501/15 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 SCL1501/19 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. 10 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. SCL1501/111 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. 12 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. SCL1501/113 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. SCL1501/115 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. 16 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. SCL1501/119 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. 20 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. SCL1501/121 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.

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