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Exam 1 2016, questions and answers

Skills Course for Law Students (University of South Africa)

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SCL1501

OCTOBER/NOVEMBER 2016

SECTION 1

1.1. It is not easy to answer this question as the concept of law is understood
differently by different people. For example boxing, laws of the game. Henceforth,
in all these laws there seem to be a sense of control or order or system of rules.
Law is a system of rules (however not all systems of rules are laws). Rules
recognized by the state (not religion, science/sporting codes).

1.2. The main difference between rules and law is the consequences associated with
breaking them while each is developed to invoke a sense of order, fair play and
safety, the weight of the law is much heavier than the weight of the rule. Laws are
like the legal version of rules. Rules are guidelines that are provided to maintain a
smooth functioning of an organization and to maintain peace and harmony among
its people. However, they differ from laws because they are not as rigid as law.

2.1. SOCIAL CONTRACT refers to the consensus of a group of people who have
willingly united and agreed to a system of rules by which their lives will be
governed and which provides order, protection and certainty in the situation.
Initially ordinary citizens play a pivotal role in the creation of the legal system and
processes through a social contract and later by participating in various roles. E.g.
Parties to civil or criminal litigation.

2.2. A state has four elements, i.e. Population, territory, government and
sovereignty. Therefore, government is a narrow concept and it is an element of the
state. Also a state is more or less permanent and continues from time immemorial;
government is temporary. State is an abstract concept whereas government is a
concrete one. Nobody sees the state, it never acts. Government is a physical
manifestation and it acts for the state.

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2.3. The State is made up of four elements, population, territory, government and
sovereignty. What he was refereeing to can be deduced to the government.
However, it is a common phenomenon that people can use the words (state and
government) interchangeably so it all boils down to the side of the fence an
individual is sitting.

3. Banking education appropriates the reasoning capacity of students to self-

replicate. It limits student reasoning to accepting the knowledge of others rather
than constructing knowledge based on their own realities and experiences.

3.2. Praxis – action and reflection; every aspect of thinking should be accompanied by
action or application (self- reflection, questioning the very basis of the underlying
postulates that frames the way we do things).

4. Those that have the economic power can shape and influence the underlying rules
of the game. Henceforth, the elite influencing the government and at the end of the
day, the masses will suffer. Therefore, SA is not captured because the masses do not
understand what makes up a state. If the judiciary, legislation and executive are
captured then it is crystal clear that the state has been captured.

SECTION 2

Services rendered Fees(vat excl) Expenses(vat incl)

7letters received (7X R72) R504,00

9letters posted(9 x R5,50) R49,50

9letters written(9 x R115) R1035

Affidavits(34 pgs x R87) R2958

Consultation(telephonically)(430 R1075

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+645)

Advocates fees (R4345, R4954,15

75+14% )

SUBTOTAL R5572 R5003,65

PLUS VAT 14% R780.08

PLUS EXPENSES R5003,65

TOTAL DUE BY CLIENT R11 355,73

1.2. The owner (driver) of the Toyota fortuner was 20% negligent: therefore has to pay
20% of the damage to the Ford Figo: 20/100x R35 000 = R7000

The owner of the Toyota has to pay the owner of the Ford R7000.

The owner (driver) of the Ford Figo was 55% negligent: therefore has to pay 55% of
the damage to the Toyota. Pre- accident value - value of the wreck = total
damage

R525 000 - R72 000 = R453 000

55/100x R453 000 = R249 150

The owner of the Ford has to pay the owner of the Toyota R249 150.

SECTION 3

1.1. Certain guidelines or procedural steps that a lawyer has to follow when handling
a case. Term used to describe proceedings initiated between two opposing parties

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to enforce or defend a legal right. Rules and practices involved in resolving disputes
in the court system.

1.2. Address the magistrate: ‘‘your worship’’

State your name: ‘‘My name is Joe Makolobe’’
State for whom you act: ‘‘I act for the plaintiff Sara Kara’’
State what the matter is about: ‘‘This is a claim for damages resulting from a motor
collision.
State the issue in dispute: ‘‘The party differs on the quantum of damages and
negligence’’
State what evidence you will present: ‘‘I will call Prof Jay, an expert in the
reconstruction of accidents as my witness’’.
1.3. Payment of damages, patrimonial loss e.g. medical costs, loss of income; non –
patrimonial loss including pain and suffering and injury to personality; costs of suit;
further/and or alternative relief.

QUESTION 2
2.1. Your body language / attitude / clothes etc. can help you on your route to success
or it can be the reason for your failure as a lawyer.

Body language:

→ Your body language must complement your professionalism. Act with

confidence.

→ Never lie on your backside during a consultation / interview / court→ Sit up

straight.

→ In court, stand up straight→ pull your shoulders back to create a dynamic look.

→ If you stand with your hands behind your back, the message is that you think

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you are

better than the rest.

→ If your hands are on your hips, you are aggressive.

→ If you fold your arms in front of you, it signals that you are on the defense and
are closing in.

2.2. Active way of listening because you have to, listens for what is being felt. One
needs to reflect on what is being said as well as what is being felt. To listen
successfully to emotions: Guidelines on how to listen successfully in this way:

→ don’t judge the speaker

→ Use non- verbal communication to help speaker relax & to trust you

→ don’t interrupt speaker

→ Avoid disturbances: phone ringing

→ don’t quote examples from your own life.

→ don’t give advice unless asked for it

2.3. (1). Views and opinions mist be substantiated and be open to criticism and
discussion in principle. Criticism of an argument can be focused on the premises or the
conclusion. The principle of reasonableness must apply.

(2). Occurs when the desired outcome is introduced as a premise – unacceptable

because it starts with what still must be proven. When a conclusion is introduced as a
premise. This result in a valid but unfortunately unacceptable argument, which starts
from what has to be proven. E.g. A is true because B is true; B is true because A is true.

(3). Introducing a wave in an attempt to strengthen an argument without using an

authority correctly. Citing a respected author to establish claims of fact in a written

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work.

SECTION 4

QUESTION 1

1.1. Paralegals; secretaries and candidate attorneys.

1.2. Greek prefix which means ‘beside’. A paralegal is a person who works beside
attorneys to assist them with tasks ancillary to legal matters.

(ii). Contract between the candidate attorney and the principal attorney. This contract
is registered with the law society. Principal Attorney will assist and train the Candidate
Attorney as well as offer the Candidate Attorney an opportunity to prepare for his or
her admission to the Attorney Profession.

(iii). Is a written authorization to represent or act on behalf of another in a private

affairs business or legal matters sometimes against the wishes of another. The person
authorizing the other to act is the principal.

1.3. Responsible for maintaining court records with the utmost care and security.
They review briefs, motions, submitted to the court to ensure they are accurate.

1.4. Paralegal: This legal actor is described as follows: "The Greek prefix ‘Para’ roughly
translated means ‘beside’. Thus, a paralegal is a person who works ‘beside’ attorneys
to assist them with tasks ancillary to legal matters. Examples of such tasks include
legal research, debt collection and the managing of a professional practice. They may
also work in banks, corporate law firms, government departments (e.g. Department of
Justice and Constitutional Development), legal advisory bodies and NGO’s."62 At the
University of South Africa, a three- year Diploma in Paralegal Studies is offered by the
College of Law.

• Attorney: For one to be an attorney, one has to complete an LLB degree offered at a
recognized university, such as Unisa, pass the admission examinations set by the Law

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Society of South Africa and further complete the required time serving under an
experienced attorney in terms of a contract of articles or clerkship. The admission to
practice as an attorney is regulated in terms of legislation.63 The work of an attorney
includes general matters and resolving legal issues such as drafting contracts, wills
and affidavits. An attorney mainly practices in the lower courts and deals directly with
the clients (or members of the public).

SECTION 5

QUESTION 1

1.1. Lower courts are bound by the decisions of higher courts. The ratio decidendi (the
reasons for the decision) will bind lower courts dealing with the same disputes.
A decision of the Supreme Court of Appeal will be binding on all High Courts and lower
courts
Decisions by High Courts will be binding on lower courts
Decisions of the Constitutional Court bind ALL other courts

1.2 An introductory statement in a statute that explains the underlying philosophy.

(ii). The long title of an Act explains the purpose of the act.

(iii). Is the title of the Act.

1.3 Operation one of three times: ‐ Published in GG, Date specified in Statute or Fixed
Date to be proclaimed, signed by President. The Act is published in the
Government Gazette but at other times it is indicated in the Act when it will
become effective. Henceforth, as a legal practitioner make sure that an Act is
effective or in force before referring to it.

1.4.

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CIVIL CASE CRIMINAL CASE

Parties involved Plaintiff versus Defendant State versus Accused

How cases are Plaintiff must be able to prove State must prove its case
proved case on a balance of beyond a reasonable doubt
possibilities

Purpose of Aims to claim for financial Aims to convict a person(s) of

proceedings damages to compensative for a crime and, if convicted,
medical expenses, damages to punish the person(s) by means
a car, etc. of a fine or prison time

Other role players Plaintiff, defendant, their legal State prosecutor (or advocate),
representatives (attorneys or accused, accused
advocates), magistrate or judge representative (attorney or
– depending on the severity of advocate), magistrate of judge
the case – depending on the severity of
the case

1.5. The headnote is a summary of the case. It includes all the aspects of the case that
the editor considers to be important whilst the catch phrases, also called “flynotes”,
are the most important points with which the judgment is concerned. The catch
phrases are given in point form and are separated by dashes. You use the catch
phrases of a case to get a rough idea of what the case is about.
1.6. Apart from the rules concerning the interpretation of Acts, certain presumptions
must also be taken into account→ For example:

→ Legislation does not contain meaningless sections, every word & phrase has
meaning.

→ Legislation doesn’t want to change existing laws unnecessarily.

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→ Unreasonable / unfair consequences are not envisaged.

→ Legislation only applies in future and not retrospectively.

SCL1501

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MAY/JUNE 2016

SECTION 1

1.1. Law prescribes what is acceptable and not acceptable, what type of behavior
must be rewarded and what type of behavior must be punished to avoid future
repetition. It also holds people accountable for harm they have done whilst
morality is a body of standards derived from a side of conduct from a particular
philosophy, religion or culture. It can be derived from a particular standard that
a person believes should be universal.

Laws are set and enforced by organs of state whereas rules are set and enforced by
organizations and individuals. Laws are inflexible and carry stiff penalties, whilst rules
are more flexible and have lighter consequences.

1.2. (i). country refers to a large nation with its territory whilst a state refers to a
large governing territory within the state.

(ii). A state has four elements, i.e. Population, territory, government and sovereignty.
Therefore, government is a narrow concept and it is an element of the state. Also a
state is more or less permanent and continues from time immemorial; government is
temporary. State is an abstract concept whereas government is a concrete one.
Nobody sees the state, it never acts. Government is a physical manifestation and it
acts for the state.

(iii). Lies in the limits placed on government by the law, which has implications for
minority rights. Democracy is a system of government by the whole population or all
eligible members of a state, typically through elected representatives.

1.2.2. There is difference per se, between the term state and country because usually
the words are used interchangeably and also the terms are synonymous, they both
apply to self –governing entities.

1.3.1. Whereby you practically write an agreement and put up to remind yourself about

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your goals and commitments.

→ by making this pact / agreement you make it possible for yourself

to stay motivated / focused on your studies.

LEARNING CONTRACT OF LAURA WARNER –1ST YEAR LLB STUDENT AT UNISA

I, LAURA WARNER, IN ORDER TO SUCCESSFULLY COMPLETE THE SCL1501 SKILLS
COURSE FOR LAW STUDENTS, HEREBY UNDERTAKE TO DO THE FOLLOWING:
1. SCHEDULE MY LEARNING ACTIVITIES SO THAT I CAN COMPLETE THE MATERIAL
IN TIME TO WRITE THE EXAMINATION
2. READ THROUGH THE STUDY GUIDE
3. MAKE NOTES AND SUMMARIES
4. SUBMIT BOTH ASSIGNMENTS BY THE DUE DATE
5. PREPARE FOR EXAMINATIONS
6. WRITE THE EXAMINATION

SHOULD I NEGLECT TO DO THE ABOVE AS PLANNED, WITHOUT VALID REASON,

AND BY PUTTING MY “WANTS” BEFORE THE ABOVE “MUST DO” TASKS, I
UNDERTAKE TO FORFEIT MY FRIDAY NIGHT OFF STUDY EVENING UNTIL I HAVE
CAUGHT UP ON MY STUDY SCHEDULE.
THUS AGREED AND SIGNED ON THIS [ ] DAY OF MARCH 2014 AT GOODWOOD CAPE
TOWN
SIGNATURE:
WITNESS 1: [ FULL NAME] SIGNATURE: [ ] DATE: [ ]
WITNESS 1: [ FULL NAME] SIGNATURE: [ ] DATE: [ ]

1.4. Crying foul over how the President Jacob Zuma is ruling the country. Abuse of
office is the order of the day.

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SECTION 2

1.1.

Services rendered Fees(vat excl) Expenses(vat incl)

4letters received (4X R75) R300,00

7letters posted(7x R5,75) R45,89

7letters written(7x R120) R840

Affidavits(15pgs x R80) R1200

Consultation(telephonically)(450 R1125
+675)

Advocates fees (R3540, R4035,60

75+14% )

SUBTOTAL R3465 R4080,89

PLUS VAT 14% R485,10

PLUS EXPENSES R4080

TOTAL DUE BY CLIENT R8030,10

1.2. Xolela (BMW X5) = 40%

Jacky (Jeep) = 50%

Pre Accident value –salvage value = Total

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R456 000 –R65 000 = R391 000

40/100 x R391 000 = R156 400 (Xolela)

50/100 x R150 000 = R75 000 (Jacky)

Set off R156 400 –R75 000 = R81 400.

SECTION 3

QUESTION 1

1.1. When meeting the client / witness: try to make him/her feel at ease.

Make them feel that they are welcome, and that you are willing to help them. In this
regard you should note the following:

→ start off by showing interest in the client / witness.

→ don’t rush into the main issue that has necessitated the interview. Allow them
to relax.

→ Enquire about his/her name & and how he/she would prefer to be called.

1.2. Address the magistrate: ‘‘your worship’’

State your name: ‘‘My name is Joe Makolobe’’
State for whom you act: ‘‘I act for the plaintiff Sara Kara’’
State what the matter is about: ‘‘This is a claim for damages resulting from a motor
collision.
State the issue in dispute: ‘‘The party differs on the quantum of damages and
negligence’’
State what evidence you will present: ‘‘I will call Prof Jay, an expert in the
reconstruction of accidents as my witness’’.
1.3. The facts, evidence and applicable law. Prayers ( costs of suits, further and / or

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alternative relief)

QUESTION 2

2.1. A way of communicating (sending or receiving messages without using words. The
importance of non- verbal communication to a lawyer’s world of work lies in the fact
that legal practice is based on persuasion and credibility. By way of an example, you
have to persuade your client somehow that you can win the case, or you have to
persuade the presiding officer (magistrate/judge) to accept your line of argument. Non
- verbal communication plays a very important role in this regard. It is in this respect
that it is often said that non- verbal communication can make or break a lawyer. You
should use non- verbal communication to give credibility to your appearance in court
while arguing a matter. In other words, your body language, attitude, clothes, and so
on can help you on your route to success, or it can be the reason for your failure as a
lawyer.

Inductive Reasoning: Goes from specific to general. The conclusion

contains something new, something more in that it goes beyond the premises.
Example: Jerry is an attorney, all observed attorneys are attractive therefore Jerry is
attractive

2.3. Non- sequitur –conclusions do not follow the premises that they are supposed to
originate from. My cat has a tail, All dogs have tails, and My cat is a dog.

Argumentum ad hominum: (personal attack) attacking the arguer instead of the

argument being made

Argue from authority: Introducing a wave in an attempt to strengthen an argument

without using an authority correctly. Citing a respected author to establish claims of
fact in a written work.

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SECTION 4
1.1. PROXY: refers to the indirect participation of an individual who is represented
in a situation by a representative (agent) or representatives (agency).
1.2. SOCIAL CONTRACT refers to the consensus of a group of people who have
willingly united and agreed to a system of rules by which their lives will be
governed and which provides order, protection and certainty in the situation.
Initially ordinary citizens play a pivotal role in the creation of the legal system and
processes through a social contract and later by participating in various roles. E.g.
Parties to civil or criminal litigation.

1.3. Magistrates: These are civil servants who are nevertheless independent judicial
officers who perform a role similar to that of judges. However, they only serve in
the lower courts, namely, district and regional magistrates’ courts. Small Claims
Court commissioners: These commissioners are judicial officers employed in terms
of legislation. Normally, persons appointed as Small Claims Court commissioners
are experienced advocates and attorneys. Their legal knowledge and experience are
used to arrive at judgments through an "equitable, problem- solving approach".
1.4. Right of Appearance Act 62 of 1995 states that Attorneys do apply to the High
Court to be granted a right of appearance in the High Court . Apply to the
applicable Law Society for a certificate of Appearance. The certificate enables the
Candidate Attorney to appear in the Magistrates Court on behalf of his or her
principle.
1.5. Briefly, a notary public is responsible for the accuracy of the information
contained in the document they execute. He/she is also responsible for the
verification of the authority and capacity of persons acting as representatives of
various juristic persons. A conveyance transfers immovable property from one
owner to another and registers the change of ownership with the Registrar of
Deeds.

SECTION 5

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1.1. Ratio decidendi is the reason for the decision of the court which creates a
binding precedent whilst obiter dictum is a remark in passing.
b. A majority judgment means that the majority of judges who have heard a
particular case give the same judgment based on the same reasons. One judge
gives the judgment and the others concur (agree) with it. The ratio decidendi of
the majority judgment creates the precedent to be used in future cases, and is
binding. In a minority judgment, the judge disagrees with the majority and
reaches a different conclusion. In such a case a judge differs from the majority
of judges as far as the judgment and the reasons for the judgment are
concerned. Such a judgment does not establish a precedent.
1.2. Because legislation is the most important authoritative source of law. It is made
up of rules laid down by national parliament, provincial legislature and local
authority.
1.3. Reported cases are decisions of the courts and tribunals that have been
reported or published in a report series whilst unreported are essentially
decisions of courts that have not been published.
1.4. Numerous law reports that are commercially and given different names. E.g.
South African Law Reports and South African Labor Law Reports.
1.5. To go back to the definition clause. Not all words in the text are explained but
technical and difficult ones
1.6. Judgment or final remarks that are given by the presiding officer at the end or
closure of the case.
1.7. Facts are given; discussion of the relevant legal principles; existing law is
applied to the facts of the case; a decision is given in the light of the relevant
legal principles and order is given; order regarding costs is made.

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