LRW Unit 1 Notes.pdf

FACULTY OF BUSINESS & MANAGEMENT SCIENCES: DEPARTMENT OF APPLIED LEGAL STUDIES BACHELOR OF PARALEGAL STUDIES LEGAL RESEARCH AND WRITING UNIT 1 1 1.What is the unit about? This unit introduces you to the sources of law and legal research stra...

FACULTY OF BUSINESS & MANAGEMENT SCIENCES: DEPARTMENT OF APPLIED LEGAL STUDIES BACHELOR OF PARALEGAL STUDIES LEGAL RESEARCH AND WRITING UNIT 1 1 1.What is the unit about? This unit introduces you to the sources of law and legal research strategy. The unit also takes you through the process of locating and retrieving sources the sources of law to resolve a legal problem. The primary focus of the unit is on primary and secondary sources of law and their value in legal research. 2.Specific learning outcomes At the end of this unit, you should be able to demonstrate knowledge and understanding of: (a) the meaning and purpose of legal research (b) the steps to follow in researching a legal problem (c) the nature of primary and secondary sources in a law library or otherwise. (d) the interplay between primary and secondary sources of law. (e) the process of navigating the various research engines (f) researching the law 3.Unit assessment/s and criteria At the end of this Unit, you should be able to: (a) Collect information from primary and secondary sources (b) Correctly navigate the various legal research engines (c) Apply the step-by-step approach to legal research (d) Conduct computer based and electronic research 4. Resources: a. Compulsory i. Barrat A (2008) skills for law students Fresh perspective Pearson ii. Palmer R and Crocker A (2007) Becoming a lawyer fundaments skills for law students LexisNexis: iii. Maisel et al (2002) Introduction to Law and Legal Skills Butterworth 2 1.Legal Research and Writing Legal research is the process of identifying and retrieving information necessary to support legal decision-making in resolving a legal problem. Identifying solution to retrieving decison Legal problem sources legal sources making problem 1.1 Purpose of Legal Research The purpose of legal research is to locate or find sources that will help a paralegal to resolve a legal problem. Debt Retrench ed Arrested Divorce Inheritanc e. The picture above illustrates John’s legal problems, he needs help. John’s legal problems cannot be resolved by your personal thoughts or views. How then can John’s problems be resolved? ✓ The answer and solution to John’s problems is found in the sources of law. The solutions to a legal problem are found in the sources of law. Without sources of law, a paralegal will not be able to resolve a legal problem. As paralegal therefore you should be able to conduct legal research. After conducting the research, you should also be able to present your research results or solutions to your client in the acceptable format or document. This is where your writing and drafting skills are required and hence the name of the subject legal research and writing. 2.Sources of law. We have noted that you use sources of law to resolve a legal problem. What then are the sources of law? 3 Sources of law refers to where the law can be found. This should not be confused with sources of law in the context of introduction to law and ethics where sources of law refer to where the law originates or was developed. In legal research and writing sources of refers to where the law can be found or located. However, the distinction is not watertight, where the law is found can also be where the law is developed. The two overlap sometimes. NB: Sources of law are sometimes referred to as legal authority. Tutorial (a) Discuss the overlap between sources of law in introduction to law and in legal research and writing. (b) Identify the sources of law applicable to all John’s legal problems above. 2.1Types of sources of law. In legal research and writing, sources of the law are twofold namely: primary sources of law and secondary source of law. 2.1.1 Overview of the sources of law Case law Primary sources legislation of law constitution Sources of law Books Secondary Journal articles sources other scholalry writins , thesis etc 2.1.2 Primary sources of law A primary source of law is a document that establishes the law or states the law on a particular issue. Primary sources of law are the rules of law. 4 2.1.3 Examples of primary sources. Case law Legislation Constitution Common law When researching legislation, you must keep in mind that some legislation has priority over the over the other. The diagram below illustrates the hierarchy of legislation constitution Act of parliament Provincial legislation Municipal by laws. 2.1.4 Characteristics of primary sources of law. Authoritative This means that primary authorities state the law which is bound to followed or applied when resolving legal problems. Precedential Precedent is the practice of deciding new cases with reference to former cases. Controlling This means that primary sources are binding 2.2 Secondary sources of law A secondary source of law is a document that describes, comments, analyse or interprets the law the law. Secondary sources are about the law, they are not the law, they do not establish the law. Only primary sources establish the law. 2.2.1 Examples of secondary sources. legal treatises Journal articles Books 5  other scholarly legal writings NB the list is open ended 2.2.2 Characteristics of secondary sources of law. Persuasive: This means that secondary sources persuade a court to reach a particular decision in a case, but which the court is not obligated to follow. For that reason, secondary sources are NOT authoritative NOT Precedential NOT binding NOT considered law BUT commentaries on the aw NB This does not mean that secondary sources are not important, they are vital as they support or substantiate primary sources of law. 3.Research strategy What is your point of departure? When conducting research, you can start by consulting primary or secondary sources BUT it is strongly advised that you start with secondary sources of law. Why start with secondary sources: Secondary sources provide you with scholarly legal writings, commentaries and interpretation of the legal problem or topic you are researching on. In these scholarly writings, you are directed to the relevant primary sources through references. For example, if you are researching on a family law topic, you would start by reading books, commentaries etc. on the topic. It is in those books that you would find other relevant primary sources which the authors would have referenced. 3.1 The diagram below illustrates the research strategy Analyse the legal poblem Consult secodnary Sythesis sources of law Flag primary Double check and soucres cited in avalidate cases secondary source Locate the primary sources 6  Quiz In conducting legal research, you are required to make use of both primary and secondary sources. Which of the two would you start with and why? 4.Finding Sources of law As a paralegal, you should be able to find or locate primary sources of law otherwise you will not be able to resolve the legal problem. 4.1 Finding primary sources 4.1.2 Legislation Legislation is law enacted by parliament. Legislation is published by: Government Gazette Juta Statutes of South Africa Butterworth Statute of South Africa These three are available in the library in print or electronic format. NB CPUT subscribes to Juta Statutes of South Africa only. 4.1.3 How to find legislation You can find legislation as hardcopies or in electronic format as published by Juta Statutes of South Africa and Butterworth Statute of South Africa. Legislation published in print is found in the form of loose-leaf publication while legislation published online or electronically is found on the website. When searching for legislation, you therefore must consult the loose-leaf or the website. To locate legislation in the form of a hard copy loose leaf, you consult or use the indexes to the publication. An index is a list of items (such as topics or names) in a printed work that gives for each item the page number where it may be found. The hard copy loose leaf contains three indexes. The index you consult depends on which parts of the short title you are in possession. Below is a table showing the indexes and under what circumstances they are used Name of index Under what circumstances is it used. Chronological table If you have the year and act number statutes index E.g., Act 17 of 2002 Statute title If you have the name of the legislation (short tittle) E.g., Mental Health Care Act 17 of 2002 Subject index If you are doing research on a particular area, E.g. you are researching on family law 7 4.2 How to find legislation in electronic format? Both Juta Statutes of South Africa and Butterworth Statute of South Africa publish legislation electronically. NB the library subscribes to Juta Statutes of South Africa. To access Juta go to the CPUT web page, on the university webpage click on library, on the library home page click on databases, scroll down until you get to South African Law Reports, 1947 to present. 4.2.1 Chronological table statutes To find the chronological table of statutes, click on chronological statutes to your far- left hand column. Then click on the year in which the legislation was enacted. This table of statutes displays a list of statutes in date-order. See the table below. Chronological statutes 4.2.2 The Alphabetical Table of Statutes The alphabetical table of statutes displays the database of statutes alphabetically. To use the alphabetical table of statutes you must have the full short tittle. Then on your far-left hand side column click on alphabetical table of statutes highlighted in blue. Alphabetical letters from A to Z will then appear in blue 8 The Alphabetical Table of Statutes 4.2.3 Legislation judicially considered Nomsa wants to use a particular section of the legislation for her assignment. She is not sure whether the court has already interpreted, considered or applied the section of the legislation she is researching on. What must Nomsa do? Nomsa must consult the legislation judicially considered index. The legislation judicially considered index is used to check part or sections of the legislation that have been considered, interpreted, or applied by the courts. In the above extract, sections on the left-hand side of the column have been judicially considered in the cases whose citation is on the right-hand side column. 9  Tutorial You have been requested to write a legal opinion in respect of the scenario below. You are expected to make use of the applicable legislation and case law. Rebecca Mayo and Jennifer Ndebele allege that they were customarily married to Maloti Makati who died on 11 May 2019. Both Rebecca Mayo and Jennifer Ndebele were not aware of the deceased’s respective marriage. The marriages were discovered by both parties after the deceased had died. Neither Rebecca Mayo nor Jennifer Ndebele registered their customary marriage. Rebecca Mayo now alleges that she is the legal customary spouse of the deceased as lobola had been delivered by the deceased before his death. On the other hand, Jennifer Ndebele submits that on 9 June 2010, she also entered a customary marriage with the deceased following which lobola payment in the amount of R80 000, 00 was delivered. The deceased was conducting and operating a taxi business and appears to have been financially secured. He left an estate worth R 2 000 000. Three children were born out of the marriage between the deceased and Rebecca Mayo and two out of the marriage between the deceased Jennifer Ndebele. 5. Finding Case law Case law refers to court decisions. Citation is the name or reference of the case. When locating a case, make sure you have the full citation of the case as this will save you time. The citation will direct you to the exact case you are looking for without wondering about, it is like your road trip map. The different elements of the case citation are as follows in their order: Name of the v Name of Year Volume Name of the Page Name of the Plaintiff the law report number court defendant Nieuwenhuizen v Mandla 2020 (2) South African 120 SCA(Supreme LawReports(SA) Court of Appeal) NB: The name of the law report series and the name of the court are written in acronyms e.g., South African Law Reports (SA) and SCA for the Supreme Court of Appeal. 10 5.1 Law reports There are two type of law reports namely the general law reports and specialist law report. Law Report VALIDATE GENERAL SPECIALISED 5.1.1 General law reports In the above case, the case was published in the South African Law Reports (SA). The South African Law Report (SA) published by JUTA, and All South African Law (AII SA) published by LEXISNEXUS are general law reports. General law reports publish judgements or cases from all branches of law. 5.1.2 Specialist law report Specialist law reports publish specific cases from a specific branch of law such as the South African Criminal Reports (SACR), Labour Law reports(BLCR). Other examples specialised law reports and their acronyms include: BCLR -Butterworths Constitutional Law Reports CPLR - Competition Law Reports BALR - Butterworths Arbitration Law Reports BLLR - Butterworths Labour Law Reports BPLR -Butterworths Pension Law Reports B- Employment Law Journal B- Income Tax Reporter J- Industrial Law Journal B- Insurance and Tax Journal 11 5.1.3 Value of case law in legal research Law reports/cases serve as judicial precedent. Cases are a primary source of law with binding authority. NB separate and minority judgements are not binding. Courts assign meaning to legislation and common law Case law interprets common law and legislation Case law contains examples of practical of the practical application of legislation and common law The following extract from Ndaba v Ndaba 2017 (1) SA 342 (SCA) illustrates the value of case law and legislation. As to the nature of the pension interest, this court in Old Mutual Life Assurance Co (SA) Ltd & another v Swemmer 2004 (5) SA 373 (SCA) said the following (para 18): ‘[A]s indicated above, s 7(7)(a) of the Divorce Act 'deems' a member spouse's “pension interest” to be an asset in his or her estate for purposes of the determination of the patrimonial benefits to which the parties to a divorce action may be entitled. “Pension interest” is narrowly defined and simply establishes a method of ascertaining the value of the “interest” of the member of the pension or retirement annuity fund concerned as accumulated up to the date of the divorce. In the words of the South African Law Commission: “A pension interest is not a real asset that is open to division. It is the value that, on the date of divorce , is placed on the interest that a party to those proceedings has in the pension benefits that will accrue to him or her as a member of a pension fund or retirement annuity fund at a certain future date or event in accordance with the rules of the particular fund. The value of the interest is calculated according to a fixed formula and the amount determined in this manner is deemed to be an asset of the party concerned. What we are dealing with here is a notional asset that is added to all the other assets of the party concerned in order to determine the extent of the other party's claim to a part of the first-mentioned party's assets.”’ (Footnotes omitted. As indicated, the real issue on appeal is therefore whether a non-member spouse in a marriage in community of property, is entitled to the pension interest of a member spouse in circumstances where the court granting the decree of divorce did not make an order declaring such pension interest to be part of the joint estate. As to a pension fund’s statutory competence to make deductions from a member’s pension benefits, this court in Eskom Pension and Provident Fund v Krugel & another (689/2010) ZASCA 96 4 All SA 1 (SCA) said the following (para 8): ‘A pension fund’s right to make deductions from a pension benefit is highly circumscribed and may be exercised only as expressly provided by sections 37D and 37A of the Pension Fund Act. Relevant for present purposes is section 37D which, in subsection (1)(d)(i), allows a fund to “deduct from a member’s benefit or minimum individual reserve, as the case may be... any amount assigned from such benefit or individual reserve to a non-member spouse in terms of a decree granted under section 7(8)(a) of the Divorce Act, 1979”. According to the provisions of subsection (4)(a):“the portion of the pension interest assigned to the non-member spouse in terms of a decree of divorce or decree for the dissolution of a customary marriage is deemed to accrue to the member on the date on which the decree of divorce or decree for the dissolution of a customary marriage is granted.”’ (Footnotes omitted.) In the context of a divorce action, it is s 37D(1)(d)(i) of the Pension Funds Act 24 of 1956 which is of relevance. It authorises a registered pension fund to:‘(d) deduct from a member's or deferred pensioner's benefit, member's interest or minimum individual reserve, or the capital value of a pensioner's pension after retirement, as the case may be─(i) any amount assigned from such benefit or individual reserve to a non-member spouse in terms of a decree granted under section 7 (8) (a) of the Divorce Act, 1979 (Act 70 of 1979) or in terms of any order made by a court in respect of the division of assets of a marriage under Islamic law pursuant to its dissolution; and... In the above case, the following cases were used to resolve the legal problem. (a)Old Mutual Life Assurance Co (SA) Ltd & another v Swemmer 2004 (5) SA 373 (SCA). (b)Eskom Pension and Provident Fund v Krugel & another (689/2010) ZASCA 96 4 All SA. 12 NB: These previous cases were applied as judicial precedent. The cases were also used to interpret legislation in particular s 7(7)(a) of the Divorce Act and sections 37D and 37A of the Pension Fund Act 6. How to find case law. SA law report series are published Juta and LexisNexis in print or electronic format. Cases are published in print are found in the form of loose-leaf publication while cases published electronically are found on the website of the two publishers. The All-South African Law Reports contains indexes of cases. These are the indexes you must use when finding cases. The index you use depends on the information of the citation you have. The following methods are used to find cases in hard copies. ❖ Method 1 If you are in possession of the full citation, it’s quite straight forward. You simply trace the case with the citation using the specific law report series, specified volume, specified year and the specified page number as given in your citation. To achieve this, use the chronological listing of cases. The chronological listing of cases displays a list of cases in date order, as indicated in the citations of the cases. Let’s assume that you intend to use the following case Ndaba v Ndaba 2017 (1) SA 342 (SCA). In this instance you have the full citation of the case. The full citation will direct you to the case. ❖ Method 2 Although it is strongly advisable for you to have the full citation of the case you are looking for, at times you might have incomplete citation. Let’s assume that you intend to use the following case Ndaba v Ndaba 2017 (1) SA 342 (SCA). However, you don’t have the full citation, you just have parts of the citation such as Ndaba v Ndaba. In this case you have incomplete citation, you use the “cases reported index” of the law reports. The index lists the parties’ names in alphabetical order. ❖ Method 3 Sometimes it can happen that you don’t know the case law applicable to your research, but you do know the subject or topic you are researching. For instance, Alex is doing research in contract law. He does not know the case relevant to the law of contract. In that instance Alex can refer to the subject index where he will find cases with the same subject and cases that have been decided according to the same legislation. ❖ Method 4 Christine is writing her labour law assignment and she wants to know whether the court has previously interpreted the word retirement. Christine must use the word and 13 phrases index of the law report. This index displays a list of words and the respective cases where the word/phrase was interpreted. 7. Finding case law electronically. Both Juta and Lexis Nexis cases publish online on their websites. NB the library subscribes to Juta which publishes South African Law Reports from 1947 to present. To access Juta go to the CPUT web page, on the university home page click on library, on the library home page click on databases, scroll down until you get to South African Law Reports, 1947 to present. scroll to South CPUT LIBRARY African Law DATABASES WEBSITE WEBSITE Reports, 1947 to present. 7.1 South African Law Reports, 1947 to present Jutastat Online To navigate the Jutastat web page, keep an eye on the two columns. Click on the title page icon to your far-left column. The content page will then appear on your right-hand column. The content page is very important as it shows you all the indexes and content you will be able to access. Choose the action you want and click on it. After clicking the content, you should get the following page 14 7.2 Alphabetical Table of Statutes The Alphabetical Table of Statutes displays the database of cases alphabetically. On your far-left hand side column click on alphabetical table of cases highlighted in blue. Alphabetical letters from A to Z will then appear in blue 7.3 Table of cases in chronological order. To find the chronological table of cases, click on the chronological cases to your left highlighted in blue. Then click on the year in which the case was published. This table of cases displays a list of cases in date-order. 15  Tutorial You are requested to locate the case of Le Grange v Le Grange 2013 (6) SA and identify the cases and legislation cited therein. Further you are also required to illustrate or explain how the cases and legislation were used to resolve the legal problem. 7.4 Case annotation Maria wants to use a particular case for her law of contract assignment. Maria does not know whether the case is still good authority. It will be embarrassing for her or any paralegal to use a case which has been overruled or which is based on old law. What if the case has been What if the overruled What if the case case is has been outdated criticized Maria’s uncertainties can only be resolved by conducting a case annotation. Case annotation is the process of checking or finding out if the case you intend to use is still good authority. 16 The process is also referred to as validating a case because the process seeks to check whether the case is still valid. This is because sometimes the case you intend to use could be outdated or invalid as it would have been subsequently overturned by the courts. Thus, a case annotation checks if a case has been overturned, reaffirmed, questioned, or cited by later cases. For example, if your case annotation results indicate that the case you intend to use has been overturned or overruled, then it’s not a good authority and you do not use it. To the contrary if your case annotation results indicate that the case you intend to use has been reaffirmed and cited by later cases, then it a good authority. You may use it for your legal research. NB: Before you use a case, you must do a case annotation 7.5 How to conduct a case annotation You can conduct a case annotation on Jutastat as follows. After locating your case, you are given an option to annotate the case. All you must do is to click on the case annotation icon next to the case. Thereafter you will get the results of how many times the case has been quoted, overturned, or cited etc by later cases. Below is an example of a case annotation of the case K & D Motors v Wessels 1949 (1) SA 1 (A) From the above case annotation results, this case was distinguished in the subsequent case with citation 1954 (4) SA 649 (W). It was also applied in the case with citation 1959 (3) SA 811 (N). It was also considered in other subsequent case whose citation is given in the case annotation results. The case was generally applied, considered, and distinguished in the cases in blue to your right hand. Therefore it is still good authority. 17 Here is another case annotation results D & D Deliveries (Pty) Ltd v Pinetown Borough 1991 (3) SA 250 (D) Quiz Study the extract below from a case annotation and discuss whether the case is still good authority. H Merks & Co (Pty) Ltd v The B-M Group (Pty) Ltd 1996 (2) SA 225 (A) Criticised 1999 (2) SA 540 (LCC) Overruled 2011 (2) SA 227 (GNP) compared 2012 (4) SA 29 (ECP) Distinguished 2015 (5) SA 192 (SCA) 5. Finding Common Law As discussed in introduction to law, the sources of common law are Roman Dutch law and English law. 18 Therefore, you need to consult Roman Dutch law and English law sources in order to find common law. Although some common law writings are in Latin, there are some translated versions. However, case law is also the best place to find common law as the courts are tasked to develop common law by the Constitution. NB: Common Law is applicable where legislation does not provide an answer to a legal problem. Therefore, a paralegal will have to consult common law sources to resolve the legal problem. 19