SCL1501
Study Notes
2021
LEARNING UNIT 1: Introduction to legal skills
THE CONCEPT OF 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.
A closer look at this definition shows several 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).
• the rules are enforceable.
Laws create duties (obligations) and rights.
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.
➢ “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.
➢ 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”.
➢ The state needs human proxies to carry out its functions. Such people, once if
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).
THE FUNCTION OF LAW
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.
The state must respect, protect, promote, and fulfil the rights in the Bill of Rights.
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.
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 state, through the courts, will charge and try that person (prosecute) on behalf of
the wider society or community.
Such criminal sanctions include imprisonment, a fine, correctional supervision,
community service and so forth. A criminal court takes charge of this process.
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 regulates the relationship between individuals
in the community.
When someone is said to have disturbed or harmed another person’s right, he/she is
said to have committed delict.
THE IMPORTANCE OF SKILLS
The notion of praxis (action and reflection); 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
continuous application of what we know (the theory).
This notion (of praxis) thus can be defined as the action and reflection
of people upon their world in order to transform it… What is required, is active
reflection and reflective action.
OUR APPROACH IN THE MODULE
✓ Usually, a skill is acquired when a student learns through experience. This
learning style is often regarded as “learning by doing.”
✓ The approach promotes self-awareness and expression with relevance and
meaning.
✓ 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?
LEARNING UNIT 2: Study skills
LEARNING AND STUDYING
The concept of studying:
1. The concepts of studying and learning are easily confused. Although their
meanings are different, they are at the same time closely related.
2. “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”.
3. Studying is when you physically engage in the process of organising the study
materials (books, cases, and Acts) and using them to acquire knowledge for a
certain purpose.
4. Learning is the impact of the process of studying on the student.
5. Learning is an active process.
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.
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 permanent
change in the learner (i.e., it has a meaningful impact on the learner).
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”.
Participation in this sense will involve the following:
▪
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.
The study process
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.
The fixation phase
The testing phase The study
environment
This phase relates to
Here you assess
The environment in
that stage of the study your grasp and
which we study is
process where you get understanding of
often the least
to grips with the real
the material.
valued aspect of the
contents of the subject,
study process.
topic or text.
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
Some of the things that
one may be expected
to do during this phase
are as follows:
• Consolidation of
facts: whatever
you do to
ensure that you
really
understand the
material.
• Summarising
facts: Having
satisfied
yourself that
you have really
understood the
material you will
have to make
useful
summaries of
what you
consider to be
the most
important
In other words, it is the
period during which
you would be expected
to do intensive
reading.
This you do by
asking
yourself questions
that cover the
material you have
studied.
We seldom consider
the space around us
as a key element in
the success of our
studies.
This is the time when
you should
concentrate fully on
detail to be able to
report on the material.
You should answer
these
questions honestly
to satisfy yourself
that you know and
understand what
you have
studied.
Thus, it becomes
necessary to ensure
that the
environment around
us is conducive to
studying and
learning.
No matter how bad
your environment
may be, an
environment that
has the following
elements can be
helpful to you:
• Social space:
This refers to
the people
around you.
They may
influence you
positively or
negatively.
• Physical
space: be
comfortable,
lighting and
ventilation,
temperature
control.
•
•
the content
of the
learning
material.
Identify
questions
you must
answer.
Make
summaries
for intensive
study later.
•
•
elements of
your material.
Supplementing
and reviewing
your notes.
Memorisation/re
hearsal.
LEARNING UNIT 3: Reading legal texts
WHEN ARE YOU AN EFFECTIVE READER?
HOW TO READ AND UNDERSTAND AN ACT OF PARLIAMENT
HOW TO READ A COURT CASE
LATIN TERMS
READING AND
UNDERSTANDING A JOURNAL ARTICLE
LEARNING UNIT 4: Communication and Litigation Skills
INTRODUCTION
NON-VERBAL COMMUNICATION
INTERVIEWING
LISTENING SKILLS
LOGIC AND LEGAL ARGUMENTS
LITIGATION AND ADVOCATING IN A COURT OF LAW
CONCLUSION
LEARNING UNIT 5: Legal actors
INTRODUCTION
THE SOUTH AFRICAN LEGAL SYSTEM
CONCLUSION
LEARNING UNIT 6: Numeric skills
INTRODUCTION
WHAT IS NUMERACY?
WHY LEGAL PRACTITIONERS OR LAWYERS NEED NUMERACY
SKILLS
ADDITION AND SUBTRACTION OF NUMBERS
MULTIPLICATION AND DIVISION
FRACTIONS, DECIMALS AND PERCENTAGES
POCKET CALCULATORS
APPORTIONMENT
RATE OF EXCHANGE
INTEREST
TAX
APPORTIONMENT OF DAMAGES
LEGAL PRACTITIONER’S (ATTORNEY’S) ACCOUNT
CONCLUSION