Legal Skills
LSK152
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Table of contents
Heading
Page number
Contents
CANVAS INFORMATION
III
GENERAL INFORMATION
IV
Module purpose and outcomes
x
TOPIC 1 STUDY SKILLS
2
Prescribed Reading
2
1.1
Introduction
2
1.2
study skills
2
1.2.1
Time management for law students
2
Summary
8
Self-Assessment Questions
8
TOPIC 2 NUMERACY SKILLS
10
Prescribed Reading
10
2.1
Introduction
10
2.2
NUMERACY SKILLS
10
Summary
17
Self-Assessment Questions
17
TOPIC 3 READING SKILLS
19
Prescribed Reading
19
3.1
Introduction
19
3.2
reading skills
19
Summary
23
Self-Assessment Questions
23
TOPIC 4 WRITING SKILLS
24
Prescribed Reading
24
4.1
Introduction
24
4.2
writing skills
24
Summary
39
Self-Assessment Questions
39
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TOPIC 5 INTERVIEWING SKILLS
40
Prescribed Reading
40
5.1
Introduction
40
5.2
Interviewing skills
40
Summary
43
Self-Assessment Questions
43
TOPIC 6 ADVOCACY SKILLS
44
Prescribed Reading
44
6.1
Introduction
44
6.2
Advocacy skills
44
Summary
50
Self-Assessment Questions
50
References
51
Books
51
Case law
51
Legislation
51
Journal article
51
© STADIO (Pty) Ltd Legal Skills LSK152
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ASSIGNMENT
SEMESTER
2023 01
MODULE
Legal Skills
MODULE CODE
LSK 152
DUE DATE
21 APRIL 2023
Page 1 of Assignment
ASSIGNMENT – 2023 FIRST SEMESTER
LSK152
Legal Skills
Page 2 of Assignment
ASSIGNMENT – 2023 FIRST SEMESTER
LSK152
Legal Skills
Page 3 of Assignment
ASSIGNMENT – 2023 FIRST SEMESTER
LSK152
Legal Skills
Question 1
[5]
Mary has just started studying law and finds it difficult to make summaries of the work.
Provide Mary with five key techniques that may make summarising easier.
Question 2
[8]
When answering problem-type questions law students often struggle with the format of an
answer. Explain to your fellow law students how you should structure the answer to a
problem-type question.
Question 3
[10]
Obtain the following Constitutional Court case using SAFLII: S v Makwanyane and Another.
Summarise the case by using the headings ‘Facts’, ‘Legal question’, ‘Short answer’ and
‘Reasons for the decision’.
Question 4
[7]
Legal practitioners must be able to draft many different documents. Sam asks you to provide
him with seven guidelines for plain language drafting.
Question 5
[10]
Richard is a candidate attorney, and he has received an instruction to draft an affidavit. He
comes to you and asks for an explanation of what an affidavit is and what questions a
commissioner must ask when commissioning an affidavit.
Question 6
[10]
Lebo is about to wrap up her first trial. You are on Lebo’s legal team, and she instructs you to
provide her with a comprehensive explanation and complete overview on closing arguments.
Page 4 of Assignment
ASSIGNMENT – 2023 FIRST SEMESTER
LSK152
Legal Skills
PLEASE NOTE: If your answers are copied and pasted and/or not properly referenced
you will obtain 0 for your answer(s). Make sure to reference and paraphrase properly.
NOTE: Should students not have access to or have trouble with accessing
EBSCOhost, they must contact STADIO and ask for the IT department for assistance.
The lecturer cannot assist with this administrative aspect.
ASSIGNMENT TOTAL: [50]
Page 5 of Assignment
Module purpose and outcomes
In this foundational module, offered on NQF level 5, first-time law students are
equipped with the basic legal skills they will need in their studies and practice.
The first part of this module exposes students to study skills needed to complete
a qualification in law. The module also covers basic numeracy skills, research
skills, reading skills, writing skills, interviewing skills and advocacy skills.
The second part of the module exposes students to computer literacy skills.
Information Administration Systems include an online training component that
allows students to practise simulated MS Office tasks at their own pace,
supported by integrated feedback which helps them to identify and remedy their
mistakes. It also includes an assessment component that will be added to their
overall module result. Students will complete several assignments in which they
will be expected to apply the MS Office tools that they have practised in the
online environment. The module is aimed at learning and practising skills
required by law students and prospective practitioners.
Part A of the module (15 credits)
Upon the successful completion of this module, you will be able to:
1.
Apply study skills successfully.
2.
Demonstrate an understanding of basic numeracy skills required in the legal
profession.
3.
Identify and locate relevant legislation and case law by using the relevant
technology.
4.
Conduct legal research to solve a basic legal problem.
5.
Read case law, legislation and other legal sources.
6.
Demonstrate basic legal writing skills and the ability to draft basic legal
documents.
7.
Use clear and simple legal language.
8.
Demonstrate the skills to interview a client/witness and to set up an
interview.
9.
Demonstrate basic advocacy skills to deliver an opening address, conduct
an examination and present closing arguments.
© STADIO (Pty) Ltd Legal Skills LSK152
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Part B of the module (10 credits) (Part B is offered online)
Upon the successful completion of this module, the student will be able to:
1.
Demonstrate an understanding of the features and functions that are
typically provided by personal computers and their attached peripheral
devices, as well as an understanding of routine PC maintenance procedures
and the role of networks, firewalls, browsers and search engines.
2.
Use the Microsoft Windows operating system to manage and work with
folders, files and individual documents, and to search for specialised
applications in the Microsoft Store.
3.
Create an MS Outlook email account; create, send, reply to and forward
emails, either with or without attachments; create contact groups, recurring
appointments and auto-reply messages; and clean up a mailbox folder.
4.
Use MS PowerPoint to create, edit and save a presentation; add slide
content and special effects; record speaker notes and comments; use the
normal, outline, reading and slide sorter views; and prepare to deliver a
presentation with supporting handouts.
5.
Use MS Word to create, edit, modify and save the content of document
files; and to add comments and Track Changes when proofreading
documents.
6.
Use MS Excel to create, modify and save spreadsheet files; insert or edit
data in a worksheet and format worksheet cells; sort, filter and group data
records; create simple and conditional formulas; create and edit basic
charts, and use pivot tables to analyse data.
7.
Use domain-specific software tools to perform specialised tasks within a
particular discipline and context (for example, journalism or fashion
design).
Prescribed Reading
The prescribed textbook for Legal Skills (LSK152) is:
•
Kok, A., Nienaber, A. & Viljoen, F. 2021. Skills workbook for law students.
2nd ed. Juta: Cape Town
ISBN: [978–1-485-13800-6]
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Topic 1
Study skills
Prescribed Reading
Kok, Nienaber and Viljoen Skills workbook for law students 2nd ed (2021) (Juta,
Cape Town) 1-21
1.1
INTRODUCTION
This topic relates to the following module outcome/s:
•
•
•
•
•
•
Time management for law students
Note-taking
Making summaries
Preparing for tests and examinations
Writing tests and examinations
Ethical considerations
1.2
STUDY SKILLS
1.2.1
Time management for law students
Kok et al 6 explain that your available time may be divided into three categories:
‘necessary study activities’, ‘maintenance and care’ and ‘discretionary time’.
‘Necessary study activities’ is the time needed to thoroughly study the lecture
material, memorise facts, make summaries, attend lectures, consult the lecturer,
travel to and from the university and acquire the skills necessary to pass your
courses. ‘Maintenance and care’ is the time spent sleeping, eating, dressing,
attending to personal hygiene and generally looking after your physical and
mental health. ‘Discretionary time’ is the time that remains after you have
attended to your study and maintenance activities.
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In deciding how to prioritise your activities, you can take the following factors
into account:
•
the urgency of the activity
•
the relative importance of the particular activity in relation to other
activities
•
the anticipated degree of difficulty
•
the likely time needed to complete the activity and
•
the scope and volume of the work involved.
Kok et al 7 provide a list of tips on how to use your time wisely and well. These
include the following.
•
Use ‘dead time’ such as waiting in a doctor’s consulting room to read study
material.
•
Make daily ‘to-do’ lists.
•
Keep a daily diary of events but also prepare a schedule of activities on a
weekly and monthly basis.
•
Say ‘No’ to fun activities when you can’t afford to relax. Be assertive. Your
first priority is your studies.
•
Buy a separate folder for each subject and file notes and summaries
consistently. You don’t want to spend ages trying to sort out a mass of
notes close to the examinations.
Activity 1.1
Read through the hypothetical situation in Kok et al 6-7 and draw up a ‘to-do list’
for Nozuko. List her activities according to their relative priority. Suggest a time
allocation for each activity.
1.2.2
Note-taking
Before you will be able to make good class notes you need to develop good
listening skills. The difference between hearing and listening is significant.
Hearing is a passive, physical process – the ear receives sound waves and there
is no mental effort on the part of the hearer. Listening is an active, selective and
intellectual process. The hearer decides whether he wants to focus on a particular
message or not. His individual needs determine whether he listens to a particular
message or not. This is an intentional and purposeful process.
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1.2.2.1
The essentials of good class notes
Kok et al 8-9 mention that every set of class notes contains the following:
•
course name, course code and lecturer’s name
•
title and date of the lecture
•
lots of white spaces – sufficient room for additions and alterations
•
separate lines for separate ideas
•
a clear structure – use headings and sub-headings
•
not too much detail – notes should provide a ‘bird’s eye view’, that is an
overall picture of the theme or topic
•
but not so little information that the lecture notes become useless.
1.2.2.2
Practical note-taking
Only take down important and relevant information. Sometimes it may be
difficult to concentrate during a lecture in which case using the following
techniques proposed by Kok et al 9 should help:
•
Listen to the lecturer’s opening statement. This will help you to identify a
structure.
•
Maintain eye contact with the lecturer (if you are attending contact or
online classes).
•
Ask mental questions and think about the topic.
•
Become involved in the lecture.
•
If the lecture becomes confusing, ask the lecturer to clarify what he is
saying.
•
Ignore any personal or annoying habits that the lecturer may have. Focus
on the content of the lecture, not on the method of delivery.
•
Try to see the big picture. Concentrate on trends or patterns.
•
Listen carefully to the lecturer and watch her closely during the lecture.
•
If the lecturer digresses stop writing until she picks up the thread of the
‘real lecture’ again.
•
Mark possible examination questions.
Activity 1.2
Explain the difference between hearing and listening.
© STADIO (Pty) Ltd Legal Skills LSK152
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1.2.3
Making summaries
Sometimes it will be helpful to make summaries of textbooks, cases and journal
articles. Summaries will be especially helpful when you are pressed for time. A
summary should at all times retain the essential content of the main text. The
original message and the underlying idea of the text should be kept intact. To
achieve this Kok et al 11-12 recommend the following:
•
Ensure that you have a full and proper understanding of the entire text.
Consult the table of contents. Identify a structure or pattern.
•
Read the entire chapter before you start your summary.
•
Identify keywords and important concepts which are often repeated.
Ensure that you understand these concepts.
•
Identify general rules, principles and exceptions.
•
Use language that is easy to understand.
•
Follow a specific format when you summarise texts. Kok et al 12 suggest
the following format when you summarise a court case. ‘Facts’ –
‘Questions of Law’ – ‘Answer’ – ‘Reasons’.
•
Integrate the various sources.
Activity 1.3
Find a newspaper article on a legal topic. Summarise the article following the
guidelines in the material discussed above.
1.2.4
Preparing for tests and examinations
Consult the university timetable and write down all the test and examination
dates in your diary. Highlight potential problems such as two difficult
examinations that are scheduled on the same day. You should never start
preparing for an examination or test on the day before you must take it. Your
preparation starts with your first lecture on that subject. Do not ‘spot’. Study,
revise and understand all the work. According to Kok et al 12-13 the hard work
needed to achieve success at examination time depends on your willingness to
commit to the following:
•
Before the lecture read the study material. Find and read the prescribed
court cases, Acts of Parliament and journal articles.
•
Attend lectures and make notes.
© STADIO (Pty) Ltd Legal Skills LSK152
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•
After the lecture summarise the study material and synthesise these with
your notes.
•
Review summaries from time to time.
Look at old tests and examination papers as part of your preparation.
Activity 1.4
What is a good approach to prepare for tests and examinations?
1.2.5
Writing tests and examinations
Consult the university’s timetable and be sure that you know when and where
you are to write the test or examination. You will not be allowed a second chance
if you missed the scheduled examination because you took down the wrong
details. The lecturer sometimes indicates the format that the question paper will
take. Keep this in mind when preparing for the examination. The lecturer will
probably tell you the time allowed to complete the examination and the
maximum possible marks awarded.
Read the question paper before you start writing. A particular question may
require a lot of reading for only a few marks. Kok et al 13 recommend that you
rather answer the other questions first and come back to the ‘time-robber’ right
at the end. Be sure that you follow examination instructions. Different
instructions mean different things. For the definitions of these instructions see
Kok et al 14-15.
Four types of questions occur most often in tests and examinations: problemtype questions, essay-type questions, multiple-choice questions and cloze-type
questions.
1.2.5.1
Problem-type questions
For an example of a problem-type question see Kok et al 15. This kind of question
requires you to read a set of facts, analyse them and answer certain questions
relating to these facts. You need to be able to apply the law to the facts and
propose an answer. Note the difference between problem-type questions and
cloze-type questions. With the latter, you simply list state, or enumerate certain
facts, conditions, principles, etc.
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A problem-type question on the same subject would present a series of facts in
a scenario-like format and ask the student for example to determine whether a
valid marriage had been constituted according to his understanding of the legal
rules relating to marriage.
Kok et al 16 suggest that you use the following structure when answering
problem-type questions:
•
Identify the legal questions posed by the set of facts
•
Analyse the applicable legal position
-
general legal principles
-
specific legal rules
-
exceptions
-
authority
•
Apply the law to the facts
•
Conclude
See Kok et al 16-18 for guidelines on how to approach a problem-type question
and also a suggested answer which includes: identifying the problem; stating the
relevant legal principles; providing a list of authorities; applying the relevant
principles to the facts and presenting a conclusion.
1.2.5.2
Essay-type questions
Read the example of an essay-type question in Kok et al 18-19 and see the
suggested answer that includes: an introduction; definition of the fiction;
application of the fiction in the common law; application of the fiction in modern
South African law; court cases; and critical comments.
1.2.5.3
Multiple-choice questions
See the example of a multiple-choice question in Kok et al 20. Multiple-choice
questions offer a range of possible answers to a particular question. In most
cases only one of the suggested answers is correct. Look out for words such as
‘only’, ‘always’, or ‘mostly’, which should prompt you to consider some options
and reject others.
1.2.5.4
Cloze-type questions
See the example of a cloze-type question in Kok et al 20. These questions require
the student to fill in the blank spaces in a written (but incomplete) answer.
© STADIO (Pty) Ltd Legal Skills LSK152
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Activity 1.5
Discuss the
questions.
1.2.6
difference
between
problem-type
questions
and
cloze-type
Ethical considerations
The legal profession requires the utmost honesty and scrupulousness. This
ethical obligation continues through your university studies. Do not cheat in tests
and examinations. Do not copy answers from classmates. If lawyers act in a
dishonest way, they are struck from the roll of practitioners and are prohibited
from practising law. In serious cases, dishonest law students may be prevented
from completing their law studies.
Activity 1.6
What are the possible consequences if lawyers act dishonestly?
Summary
In this topic, we dealt with study skills and you should now have a better
understanding of time management, note-taking, summarising, preparing for
texts and examinations and the writing of tests and examinations. You should
also be equipped with the ethical principles required by your chosen profession.
The next topic deals with numeracy skills.
Self-Assessment Questions
1.1
Which factors do you have to consider when deciding how to prioritise your
activities?
1.2
Compare Example A and Example B in Kok et al 10-11. Which set of class
notes do you regard as the better notes? Why? Discuss the merits of the
two sets of notes with a classmate, if possible.
© STADIO (Pty) Ltd Legal Skills LSK152
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1.3
Which structure is recommended when answering problem-type questions?
1.4
What is a cloze-type question?
1.5
Discuss the reasons for and solutions to the problems listed in Kok et al 21.
© STADIO (Pty) Ltd Legal Skills LSK152
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Topic 2
Numeracy skills
Prescribed Reading
Kok, Nienaber and Viljoen Skills workbook for law students 2nd ed (2021) 22-52
2.1
INTRODUCTION
This topic relates to the following module outcome/s:
•
•
The importance of numeracy skills
Basic skills
2.2
NUMERACY SKILLS
2.2.1
The importance of numeracy skills
We encounter numbers daily: buying textbooks, going shopping, paying tuition
fees or calculating semester marks. Each of these activities is governed by
numeracy skills. During your university studies, you will occasionally be required
to perform basic calculations. Kok et al 23 explain that a ‘maths chapter’ is
necessary for the following reasons:
•
Attorneys are expected to manage their client’s money.
•
Lawyers are responsible for their own expenses, income and assets. A
lawyer who is unaware of his financial status and recklessly runs up debts
exceeding the income the practice generates will soon be bankrupt.
•
Relatively straightforward queries from clients often necessitate the use
of numeracy skills.
•
A client may name you as the executor of his will. As an executor, you
must be able to calculate the total assets, liabilities, Master’s fees and
administration fees of the client’s estate.
© STADIO (Pty) Ltd Legal Skills LSK152
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•
The consequences of poor accounting are serious. Neglect and mistakes
may cost the attorney his practice and future. If you cannot perform these
functions properly and your client suffers a loss as a result of your
negligence, you may be held personally liable for the loss.
Activity 2.1
Why is it important for a legal practitioner to develop numeracy skills?
2.2.2
Basic skills
You must understand the following concepts:
•
•
•
•
•
•
•
•
•
•
•
•
•
addition
subtraction
division
multiplication
order of calculations
rounding off
averages
fractions
percentages
proportional allocation
apportionment of damages
calculation of interest
calculation of value-added tax (VAT)
2.2.2.1
Addition
A and B decide to set up a partnership agreement and pool all their assets and
liabilities. You must add A’s assets to B’s assets to calculate the total:
A’s assets
= R10 000
B’s assets
= R30 000
Total assets
= R10 000 + R30 000 = R40 000
For another example, see Kok et al 24.
© STADIO (Pty) Ltd Legal Skills LSK152
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2.2.2.2
Subtraction
A, B and C are partners. The total assets of the partnership amount to R50 000.
C wants to leave the business. His contribution to the assets of the business
amounts to R30 000. To calculate the remaining assets, C’s assets must be
deduced from the total:
Total assets
= R50 000
C’s assets
= R30 000
Remaining assets
= R50 000 – R30 000 = R20 000
2.2.2.3
Division
You are a partner in a law firm consisting of five partners. Each partner receives
an equal share of the profits. The profits for March amounted to R43 872. What
is your share of the profits?
R43 872
R43 872 ÷5 =
2.2.2.4
5
= R8 774,40
Multiplication
A has to pay salaries to his three secretaries. He pays each of them R5 000 per
month. What is the annual cost to A of employing the three secretaries? There
are two ways of solving this problem. The first method involves calculating what
the total monthly salary is, which means multiplying R5 000 by three. To get the
total annual salary we then multiply this figure (R15 000) by 12 because there
are 12 months in a year. Therefore:
R5 000
x 3 = R15 000 (the total monthly salary for the three secretaries)
R15 000 x 12 = R180 000 (the total annual salary of the three secretaries)
The second method involves calculating the annual salary of one secretary and
then multiplying this figure by 3 (since there are three secretaries). Therefore:
R5 000
x 12 = R60 000 (the annual salary of one secretary)
R60 000 x 3
= R180 000 (the total annual salary of the three secretaries)
© STADIO (Pty) Ltd Legal Skills LSK152
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2.2.2.5
Order of calculations
Calculations are performed in the following order from left to right:
•
•
•
•
Brackets
Exponents
Multiplication and division
Addition and subtraction
Take the following example from Kok et al 26:
4+6x2–6÷2=?
You first have to perform multiplication and division, therefore:
4 + 12 – 3 = 13
2.2.2.6
Rounding off
Kok et al 27 explain that rounding off is a technique we use when working with
numbers in the decimal system. We ‘round off’ when we want to reduce the
number of decimal places shown, which is often when we are dealing with large
numbers that extend to several decimal places.
The decimal system groups whole numbers under the following categories:
•
single figures (1-9)
•
tens (10-99)
•
hundreds (100-999)
•
thousands (1 000-9 999)
•
ten thousands (10 000-99 999)
•
hundred thousands (100 000-999 999)
•
millions (1 000 000-999 999 999) and so on.
Rounding off can be done to any decimal place to any of the whole number
decimal places and any of the decimal places of parts or fractions of numbers.
To round off any given figure we first need to decide at what decimal place we
want the figure to end. Let us suppose we take the number 1 265 and decide
what we want to round off to the nearest thousand.
© STADIO (Pty) Ltd Legal Skills LSK152
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Using our decimal categories (Kok et al 27) 1 265 looks like this:
1000
1
100 10 0
2
6 5
For more examples of rounding off see Kok et al 27-29.
2.2.2.7
Fractions
A fraction is a part of a whole. A fraction is written down using one number on
top of another for example ¼, ½, ¾. We refer to the bottom number as the
denominator which tells us into how many parts the whole has been divided. The
top number is the numerator which tells us how many of these parts we are
using.
Adding and subtracting fractions is quite simple when the denominator is the
same. Fractions may only be added or subtracted when the denominator is the
same. The first step is to find the lowest common denominator (LCD). That is the
lowest number that the denominators of both fractions will go into.
For examples of calculations with fractions see Kok et al 29-32.
Fractions can also be compared. For examples see Kok et al 32.
We can also convert a fraction to a decimal by dividing the number by the
denominator. Because the denominator is usually larger than the numerator this
means that our answer will be ‘zero point something’.
For example, if we want to convert ¾ to a decimal using a calculator we punch
in ‘3’ then ‘÷’ then ‘4’ and finally ‘=’ to get the answer 0.75.
We also have recurring decimals that occur when we convert a fraction to a
decimal and we do not get a finite answer. This means that the division process
never ends and that the number goes on forever. For example, if you convert ⅔
to a decimal your answer will be 0.6666666. For examples of recurring decimals
see Kok et al 33.
To convert a fraction or decimal to a percentage you first need to convert the
fraction to a decimal and then multiply the decimal figure by 100. For examples
see Kok et al 33.
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To convert a percentage to a decimal, divide the decimal figure by 100 and
remove the percentage sign. For example, 60% becomes 0,6 (60 divided by 100
and remove the % sign).
And:
34% is 34 ÷ 100 = 0,34.
For examples to convert a percentage to a fraction and converting a decimal to
a fraction see Kok et al 34.
2.2.2.8
Percentages
Kok et al 35 explain that a percentage is nothing other than a fraction with a
denominator of 100 with the % used instead of the number 100. ‘Per cent’
literally means ‘per hundred’ or ‘for every one hundred’ as it is perhaps better
understood. For comprehensive examples see Kok et al 36-39.
2.2.2.9
Proportional allocation
Proportional allocation refers to the division of a total amount between different
parties based on each party’s designated share of the total amount. Such
allocations are also referred to as pro rata payments (‘according to the rate’).
For example, Arnie, Jonathan and Michael divide their firm’s profits on the basis
of 2:3:5. This means that for every R2 in profits that Arnie receives, Jonathan
receives R3 and Michael receives R5. If the profits amount to R24 500 what
amount is awarded to each of the partners? Every R10 in profits is divided as R2
to Arnie + R3 to Jonathan + R5 to Michael. For more examples see Kok et al 3940.
2.2.2.10
Apportionment of damages
The apportionment of damages involves the application of principles relating to
fractions and percentages. For very comprehensive examples see Kok et al 4042.
2.2.2.11
Interest
Interest is earned on investments and interest is paid on loans. The principles
relating to percentages apply to interest as well because interest is expressed as
a percentage of the investment or loan.
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For example:
Bank A offers 6% interest per year on fixed deposits. If investor Z invests R7 500
with Bank A, how much money will he have after one year?
Interest earned = interest rate per year x investment
= 6% x R7 500
6
= 100 x R7 500
= R450
He would therefore have R7 500 + R450 = R7 950 at his disposal.
For more comprehensive examples of interest see Kok et al 42-45.
2.2.2.12
Averages
We use averages when we want to discover the general or typical value of a
range of values for example the average price of a loaf of bread, the average
test score of a class of law students, or the average number of points scored by
a rugby team throughout the season.
Look at the following example:
You collect R2 300 from 15 colleagues to buy a going-away present for the
secretary. What is the average amount donated (R2 300) by the number of
people contributing (15)?
R2 300
15
= R153,33 average amount donated.
For more comprehensive examples see Kok et al 45-46.
2.2.2.13
Calculating value-added tax (VAT)
Attorneys and advocates charge value-added tax on their services. It is paid over
to the Treasury at prescribed intervals and does not form part of the attorney or
advocate’s income.
For example, You agree with your client that you will account to him based on
R500 per hour (excluding VAT). Your time sheet accounting system reflects 16
hours of work on the file. Assume that VAT is charged at 7%.
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What is the total amount (including VAT) that the client must pay to you?
R500 per hour x 16 hours = R8 000
7
8000
T = 7% of R8 000 = 100 x 100 = R560
Your client must pay R8 000 + R560 = R8 560.
It is sometimes necessary to calculate the pre-VAT exclusive amount. The
following formula is used:
100____
100 VAT rate x VAT inclusive amount = VAT exclusive amount.
For further examples and helpful hints that may assist you in solving numerical
problems see Kok et al 47-52.
Activity 2.2
Your client is liable to pay to the plaintiff R472 691 as the capital amount and
R128 499 as mora interest. What is your client’s total liability?
Summary
This topic dealt with numeracy skills, and you should now have a better
understanding of the importance of numeracy skills and understand the basic
skills required. The next topic deals with reading skills.
Self-Assessment Questions
2.1
Your client’s gross monthly income is R100 000 from which he had to
deduct office renovations (R23 867) and the depreciation of his laptop
(R2 365). What is his net monthly income? Solve the problem by using two
methods.
2.2
The partnership of A, B and C earns yearly profits of R300 000. The partners
divide the profits of the partnership equally. How much will each partner
receive?
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2.3
Calculate the following: 8 + 12 – 42 ÷6 + 3 x 3 = ?
77 ÷(11-4) ÷ (5 + 6) = ?
2.4
Thandi has a large bar of chocolate that she decides to share with her
friends. She breaks up the whole chocolate bar into ten equal-sized pieces
and gives away six pieces leaving her with four pieces. What fraction of the
chocolate bar has she given away? What fraction of the chocolate bar is
left?
5 2 4
2.5
Write the following fractions in decimal form: 4, 3, 7
2.6
Convert the following decimal numbers into fractions: 0,17, 0,178, 3,625
and 6,15.
2.7
A law firm has 54 professional assistants, 72 partners, 42 secretaries and
12 filing clerks. There are 50 females and 130 males. What percentage of
the workforce do professional assistants, partners, secretaries, filing clerks,
males and females constitute respectively?
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Topic 3
Reading skills
Prescribed Reading
Kok, Nienaber and Viljoen Skills workbook for law students 2nd ed (2021)84-116
3.1
INTRODUCTION
This topic relates to the following module outcome/s:
•
Reading and understanding legislation.
•
Reading and understanding a court case.
•
Reading and understanding a journal article.
3.2
READING SKILLS
3.2.1
Reading and understanding legislation
According to Kok et al 84, a law student should take the following steps when
confronted by a particular statute:
•
Read the section headings of the Act. These headings will give you an
overall picture of the Act and the main issues and themes it contains.
•
Read the definitions contained in the Act.
•
Scan the contents of the whole Act. This means that you should read the
Act quite quickly to get a general understanding of its scope and purpose.
•
Establish how different sections relate to each other. This may initially be
quite difficult but you should still try to ascertain which sections can be
grouped or read together.
•
Have the courts interpreted the Act? Use the ‘legislation judicially
considered’ index to determine this.
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For an example relevant to the Children’s Act see Kok et al 85-86. For a further
example relevant to the Promotion of Equality and Prevention of Unfair
Discrimination Act see Kok et al 86-89.
Activity 3.1
Name the steps a law student should take when confronted by a particular
statute.
3.2.2
Reading and understanding a court case
As a lawyer, you will search for answers in court cases regularly. Making sense
of judgments can be a time-consuming exercise. Judges do not always write
judgments that are easy to understand. Not all judgments are well-structured.
You will only develop the skill to read and understand a judgment if you practise
regularly.
3.2.2.1
Structure
Kok et al 98 explain that to read court decisions you have to understand the
different components of the structure of a reported case. A reported case
contains the following elements:
•
name of the case
•
the court where the case was heard
•
the presiding officer(s)
•
the dates on which the court sat
•
keywords
•
headnote
•
the nature of the case
•
the parties’ legal representatives
•
an exposition of the facts
•
an exposition of the legal position
•
the ruling
•
the allocation of legal costs
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3.2.2.2
Meaning
As a first step ensure that you understand the meaning of a text. See Kok et al
99 in the context of meaning concerning the Prince case.
3.2.2.3
Legal context
Once you understand the meaning of words in a text, try to understand the legal
environment.
•
In which court was the case heard? Why in this specific court?
•
What is the name of the case?
•
Who are the parties?
•
How do we refer to the parties? Why?
•
Was this court the court of first instance? Explain.
•
Who presided as judges in the case?
•
Who were the lawyers representing the parties?
•
Explain the following abbreviations:
-
3.2.2.4
CC; CJC; P; CRR and JJ.
Internal structure of the case
You need to subdivide the case into the following components:
•
facts
•
applicable law
•
application of the law to the facts
•
conclusion – result or order
For a discussion of ‘Authority’, ‘Philosophical and political implications’ and
‘Subsequent events: Does the case still set out the law authoritatively?’ in the
context of Prince v President of the Law Society, Cape of Good Hope and Others
1998 8 BCLR 976 (C) see Kok et al 102-103.
Activity 3.2
Read the extract from Prince v President of the Law Society in Kok et al 89-98
and answer the following question: Does the use and the possession of cannabis
by the applicant for religious purposes render him unfit to be an attorney?
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3.2.3
Reading and understanding a journal article
3.2.3.1
Guidelines
You have to understand the historical context of the article. Find out as much as
you can about the context in which the article was written:
•
Why was it published?
•
Who is the author?
•
Where does the article fit in the intellectual development of the author?
Try to get an overview of the contents of the article. An article is usually divided
into three sections:
•
introduction
•
argument
•
conclusion
Try to identify these sections. Also, pay attention to the meaning of the title.
Now read the article. First, try to understand the meaning of words. You have to
read the footnotes as well.
As a reader, you have the responsibility of engaging with the text. While doing
this you might ask the following types of questions:
•
Which issue does the author address?
•
What is his solution to the issue?
•
What are the reasons or arguments on which this solution is based?
•
Which sources of authority does the author rely on?
You need to evaluate the article. Students and practitioners are not expected to
unquestioningly follow the views expressed in secondary sources. Ask the
following questions:
•
Is the issue relevant or important?
•
Is the solution convincing and based on the correct use of authority?
•
What are the broader implications of this view? Could this view influence
legal development or has it already had such an influence?
Concerning foreign words and a list that contains several Latin words and phrases
that you may come across from time to time see Kok et al 105-116.
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Activity 3.3
Name a few questions you might ask while engaging with the text.
Summary
This topic dealt with reading skills. You should now be equipped with reading
skills and understand legislation, reading and understanding a court case and
reading and understanding a journal article. You will also understand the use of
foreign words. The next topic deals with writing skills.
Self-Assessment Questions
3.1
Read the extract from Prince v President of the Law Society in Kok et al
89-98 and discuss ‘freedom of religion’ as envisaged in the Constitution of
the Republic of South Africa, 1996.
3.2
Name the elements that a reported case contains.
3.3
Explain the term ‘court of first instance’.
3.4
Summarise Prince v President of the Law Society. Use the headings ‘Facts’,
‘Legal question’, ‘Short answer’ and ‘Reasons for the decision’.
3.5
Analyse Lotter S The decriminalisation of cannabis: Hallucination or reality
(1999) 12 SACJ 184 on the issue of the decriminalisation of cannabis.
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Topic 4
Writing skills
Prescribed Reading
Kok, Nienaber and Viljoen Skills workbook for law students 2nd ed (2021) 117159
4.1
INTRODUCTION
This topic relates to the following module outcome/s:
•
Writing in plain language
•
Completing a written assignment
•
Writing an office memorandum
•
Writing a letter to a client
•
Drafting a simplified ‘heads of argument’
•
Drafting basic legal documents
4.2
WRITING SKILLS
4.2.1
Writing in plain language
4.2.1.1
Introduction
Kok et al 118 state that language is a lawyer’s most important ‘working tool’. A
lawyer writes countless letters to clients, presents many arguments to court and
composes innumerable legal opinions. Because lawyers spend so much of their
time working with language, they must be capable of communicating effectively.
Lawyers are often criticised for using difficult and inaccessible language that is
difficult for most ‘ordinary’ people to understand. For an example see Kok et al
118.
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Plain language is the use of straightforward language that expresses the meaning
as simply and clearly as possible.
4.2.1.2
Key principles of plain language
Plain language is writing that is:
•
well-planned
•
simple
•
clear
•
concise
•
well-organised
4.2.1.3
Guidelines
Kok et al 119-124 provide a list of guidelines for plain language writing. It is
important to know these guidelines very well.
•
Write short, concise and clear sentences. Limit each sentence to one idea.
For an example of one long sentence that has been turned into two
shorter, simpler sentences, see Kok et al 119.
•
Use the active voice, not the passive voice. In grammar, the active voice
is present when we can see that the subject of the sentence performs or
acts on the verb. The passive voice can often obscure (hides) the subject
of a sentence. It can also sound clumsy and long-winded (too many
words). See Kok et al 119-120 for examples.
•
Use only one tense per sentence. See Kok et al 120 for an example.
•
Avoid negative sentences. See Kok et al 120 for an example.
•
Do not use capital letters where they are not needed. For example,
plaintiff, defendant, negligence, claim and judgment should all begin with
a lower-case letter. Words such as president, government and ministry
are written in lower case unless they refer to a specific president.
•
Use you and we rather than a person or one. See Kok et al 121 for an
example.
•
Avoid difficult words. Kok et al 121 provide the following table which lists
several difficult words on the left and a simpler version on the right of
each of these words.
equitable
consequently
remand
finding
duress
fair
then
postpone
decision
force/pressure
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•
Avoid foreign words and phrases. See Kok et al 121.
mutatis mutandis
bona fide
prima facie
•
with the necessary changes
honest; in good faith
at first sight
Avoid outdated words. See Kok et al 121.
forthwith
hereinafter
hence
whosoever
•
•
immediately
after this
so
a person who
Avoid using ‘shall’.
Avoid the use of ‘said’ and ‘such’ as articles replacing ‘a’ or ‘the’. See Kok
et al 122.
said agreement is signed
such relief is granted
•
•
the Minister signs the agreement
the court grants the relief
Avoid nominalisations. It occurs when a verb or adjective is used as a
noun. The noun is created by adding a letter or group of letters to the end
of the original word. For example, the adjective ‘sad’ can be nominalised
by adding the suffix -ness to make the noun sadness. For an explanation
see Kok et al 122.
Cut out repetitive words. See Kok et al 122.
due and payable
will and testament
fit and proper
null and void
•
owing or due
will
suitable
void
Cut out unnecessary words and simplify long phrases. See Kok et al 122.
in connection with
in case of
in order to
at this point in time
in the final analysis
on a monthly basis
•
about
with
to
now
finally
monthly
Avoid gender-specific language. See Kok et al 122.
every person is entitled to his or her
privacy
Everyone is entitled to their privacy
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•
Use simple words to connect ideas and sentences. See Kok et al 123.
albeit
moreover
nevertheless
provided that
though/even if
also
yes
if
Activity 4.1
What are the key principles of plain language?
4.2.2
Completing a written assignment
4.2.2.1
General points to remember
You are expected to be able to write a concise and well-argued assignment on a
selected topic and express what you know effectively. You must develop your
own point of view on a particular issue, express it clearly and defend it.
4.2.2.2
How to approach a written assignment
Kok et al 124 explain that the most effective way of approaching a written
assignment is the following:
•
Divide your assignment into three sub-divisions – an introduction, a body
and a conclusion.
•
State your point of view in the introduction.
•
In the body of the assignment, you must substantiate your opinions about
certain facts or theories regarding legislation, case law, articles and books.
•
In the final section of the assignment, you should reach a conclusion based
on the argument you presented in the main body of the assignment. See
Kok et al 124-125.
4.2.2.3
The process of writing
Before you start writing:
•
Analyse the question or topic. Make sure you know exactly what is
expected of you.
•
Plan your research. Make sure you know on which area you will focus.
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•
Start searching for sources such as journals and books on the topic that
you want to research.
•
Then start on thorough, detailed research. Keep a complete and accurate
list of references.
•
Organise your material and information into a system for example
according to topic or by date of publication.
•
Plan your assignment: Decide where you want to start, what information
you want to include, and which points you want to argue. Structure your
writing. Identify the different sections and sub-sections or paragraphs that
you want to include in the assignment. For an example see Kok et al 126.
•
Write your first draft: Following the structure that you set out in the
planning stage, start writing your assignment. Write down all the
information that you think is relevant.
•
Revise your work: Carefully read what you have written. Pay attention to
the structure and ‘flow’ of your assignment. Make sure the reader will be
able to follow the ‘golden thread’ or central idea that flows through your
writing. Ensure that what you say is accurate, clear and consistent.
Rewrite your assignment. Make sure your writing style is appropriate for
a piece of academic work which means that your tone should be objective,
formal and precise.
•
Edit your work: Ensure that your spelling, grammar, sentence structure
and punctuation are correct. Carefully look at the length of your
assignment. Check your references and footnotes. Make sure that you
have spelled book titles, the details of court cases and the names of
authors correctly.
•
Rewrite the assignment: You now have to rewrite your assignment
correcting all the mistakes and ambiguities that you discovered in the
editing stage. See Kok et al 126-127.
Activity 4.2
How will you approach a written assignment?
4.2.3
4.2.3.1
Writing an office memorandum
Basic format
Kok et al 128 suggest that you use the following format when drafting a legal
memorandum:
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OFFICE MEMORANDUM
TO:
FROM:
RE:
DATE:
I STATEMENT OF FACTS
II
QUESTIONS PRESENTED (QUESTION OF LAW)
…
III
SHORT ANSWER
IV
APPLICABLE LAW
For each legal issue, identify the applicable rule(s)
Authority for the rule(s)
Primary sources
Secondary sources
Reconcile contradictory authority if possible. Distinguish the facts.
V
APPLICATION OF LAW TO THE FACTS
For each rule that you outlined above:
Application of this (general) rule to the specific facts of the problem that
you need to solve
Consider the opposite side’s application of the same rule
VI
SUMMARY AND RECOMMENDATION
4.2.3.2
Guidelines
Audience
The audience for a piece of written work is the reader the author wants to
address. The author must be certain that what he or she writes matches the
needs, abilities and interests of the intended audience.
Tone and style
Your audience will also influence the style and tone of your piece of written work.
Kok et al 129 explain that the legal memorandum is a business communication
and so you would adopt a formal tone. Your style would need to be objective,
clear, assured and precise. These are the qualities your superior would expect to
find in the business communication he reads.
Purpose
The office or legal memorandum is an objective document in which you predict
the outcome of litigation. You will base your prediction on a close reading and
interpretation of the available authority, a careful analysis of the facts and an
objective assessment of the merits of the case. See Kok et al 129.
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4.2.3.3
Content
The introductory section of the memorandum contains the headings at the top
of the document:
TO:
Add the name, surname and form of address of the person to whom
the memorandum is addressed.
FROM:
Add your details here.
RE:
‘Re’ is an abbreviation of ‘regarding’ and means that you need to insert
a heading that accurately describes the subject matter of the
memorandum.
DATE:
Add the date on which you drafted the memorandum.
Statement of facts
The person to whom the memorandum is addressed will probably not have
consulted with the client and therefore relies on your interpretation of the
situation. Your statement of facts should be a complete and objective account of
what happened. For an example see Kok et al 130-131.
Short answer
In this section, you provide the answer to the question or questions posed in the
previous section.
Applicable law
In this section, you are expected to provide a complete and relevant exposition
of the law applicable to the case. For a full explanation and an example see Kok
et al 131-132.
Application of law to the facts
Under this heading, you need to refer back to the rules that you identified under
‘applicable law’ and predict how the court will use each of these rules to decide
your client’s case. See Kok et al 133.
Summary and recommendation
In this section, you are required to summarise the position outlined in the
previous two sections and recommend a course of action.
For an example of an office memorandum see Kok et al 133-136.
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Activity 4.3
Draft a legal memorandum based on the facts provided in Kok et al 133-134.
The following two cases might be relevant:
George NO v Minister of Law and Order 1987 (4) SA 222 (SE) and Kgaleng v
Minister of Safety and Security 2001 (4) SA 874 (W)
4.2.4
Writing a letter to a client
If you can write a legal memorandum you should also be able to write a letter of
advice to a client. Two questions have to be answered before you start writing:
1. What is the purpose of the document? and 2. Who is my audience?
4.2.4.1
Basic format
Kok et al 137 suggest that you use the following format when you compose your
letter of advice:
LETTER TO A CLIENT
Own details: (physical address, postal address, telephone, fax, email, docex,
file reference)
Date
Client’s address
Opening greeting (for example, ‘Dear Mr Brown’ or ‘Dear Joe’, depending on
the nature of your relationship with the client)
Heading (Use either bold print, CAPITALS, or underlining)
1. Introductory paragraph
2. Facts
3. Analysis of legal position (legal rules or principles; application of legal
principles to facts)
4. Recommendations and substantiation of recommendations
5. Closing paragraph
Closing greeting (‘Yours sincerely’ or ‘Yours faithfully’)
(Your signature)
YOUR NAME (IN CAPITALS)
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4.2.4.2
Guidelines
Kok et al 137 suggest that you must always consider your audience, that is, the
person who will read your letter. The tone and content of your letter will be
determined by the following factors:
•
the reader’s knowledge of the law
•
the reader’s level of education
•
the reader’s physical, mental and emotional condition
•
the reader’s age
4.2.4.3
Purpose
Kok et al 138 name several reasons why you may want to write a letter to a
client. It could be
•
to persuade him to adopt a particular course of action
•
to inform him of something
•
to establish a rapport
•
to verify facts
•
to request directions as to how to proceed
•
to offer advice
4.2.4.4
Style and tone
Style and tone affect the impression you make upon the reader of your letter.
Language is a very powerful tool. We can use words and phrases in such a way
that the reader experiences either fear, delight, reassurance, sadness,
appreciation etc. For examples see Kok et al 138-139.
4.2.4.5
What goes where
How is a letter to a client structured?
•
Use the introductory paragraph to outline why you are writing the letter.
Avoid legal language. Tell the reader what you will do in the letter.
•
The second paragraph consists of an outline of the facts as they are known
to you or were communicated to you by the client during the consultation.
This is also an opportunity to clear any misunderstanding or uncertainty
about the facts. Make sure you and your client agree about what actually
happened.
•
The third section of your letter should contain an analysis of the legal
words if you are writing to a lay person. You need to state the legal rules
relevant to your client’s case as simply and as clearly as possible.
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•
In the next section, you explain the options available to your client based
on your assessment of his legal position concerning the facts of the case.
For each course of action you suggest, outline the advantages and
disadvantages. Recommend a particular option and substantiate your
recommendation.
•
The concluding paragraph has to indicate what you expect from your client
or what you would like to do next. You may only act in a matter according
to the client’s instructions. Ensure that you ask your client to confirm that
you may proceed following your recommendation.
For an example of a letter to a client see Kok et al 140-142.
Activity 4.4
How is a letter to a client structured?
4.2.5
Drafting simplified heads of argument
Kok et al 142 explain that heads of argument and legal memorandums differ in
the following ways:
•
While a legal memorandum is directed to a senior member of staff in a
law firm, heads of argument is directed to the court.
•
While a legal memorandum aims to represent facts in an objective and
exploratory manner, heads of argument aim to persuade or convince the
court of the validity of a certain point of view.
Heads of argument is a document that is handed to the court in support of a
specific argument. Heads of argument summarises the evidence, presents the
argument of the attorney or advocate on an issue and requests a particular order
from the court.
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4.2.5.1
Basic format
Kok et al 143 suggest that you structure your heads of argument as follows:
In the ……………………………………………………… [correct description of relevant court]
Case number ……………………………………………………………………………………………………….
In the matter between:
……………………………………………………………… Applicant/The State/Plaintiff/Appellant
and
…………………………………………………… Respondent/Accused/Defendant/Respondent
………………………………………………………………………………………… ‘s Heads of Argument
Table of contents
(on a separate page, listing page numbers)
I Introduction
- Background, development of case, charge, etc.
II Facts
- undisputed facts
- facts in dispute: compare versions
(a) truthfulness
(b) reliability
(c) demeanour
(d) probabilities
(e) consistency
- circumstantial evidence
- conclusion: facts on which arguments are based
III Question(s) of law
- list every issue as evidenced by the facts
IV Applicable law
- principles and authority (legislation, jurisprudence, other) set out point
by point
V Application of the law to the facts
- address issues separately
- answer questions of law
- argue toward conclusion
VI Conclusion
- what do you seek from the court (acquittal, remedy, action, to succeed,
Appeal to succeed)
Signed (day and month) ………………. 200 … at (place) ………………………………………
Counsel for ………………………….
(applicant, defendant etc)
Copy to ……………………………………………………………… [other side’s physical address]
And copy to: Clerk of the magistrate’s court/Registrar of the High Court
VII List of authorities (Bibliography)
- in alphabetical or chronological order
- separate books, journal articles and cases
- references must be complete and consistent
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4.2.5.2
Guidelines
For this section see Kok et al 144-146
Audience
The intended audience of heads of argument is a judge or magistrate. When
drafting your document keep in mind that the judge spends a lot of time reading
heads of argument. Assume that the judge or magistrate has a generalist’s
knowledge of the law. He, thus, has a thorough knowledge of the law in general
but he does not necessarily have specialist knowledge in a field such as medical
law or advertising law.
Tone and style
Your purpose is to persuade. Your tone should, therefore, be persuasive,
authoritative and confident. Make sure your arguments carry weight by
presenting a credible version of events to the court. Present reasonable
arguments. Also remember that you are not allowed to purposefully distort legal
principles.
Table of contents
Give the heading of each section and the page number where that information
or heading may be found.
Introductory section
Provide the court with enough background information about the case to place
the case in context. State the nature of the matter, identify the parties and say
what relief is sought.
Statement of facts
Present the facts in such a manner that it places your client in the best possible
light but do not sacrifice your credibility. Your interpretation of the facts must be
reasonable. Emphasise those facts that support your argument but be careful
not to suppress the truth. Present unfavourable facts analytically and objectively
and try to sound as neutral as possible. Your aim here is to downplay the
importance of these facts and adopting an unemotional, ‘sensible’, approach will
help you to achieve this.
In a hearing (action procedure) you would have heard and seen witnesses give
evidence. You would also have had the opportunity to cross-examine the other
side’s witnesses. Under the heading ‘Facts’ you need to convince the court that
your client’s witnesses were more reliable. Emphasise contradictions and
improbabilities in the evidence of the opposing side’s witnesses.
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Question(s) of law
The question should focus the court’s attention on the basic issue. Formulate the
question of law in such a way that your argument is clear. You should include a
reference to the relevant legal rule in your question. Do not include conclusions
in your questions. When you have more than one question of law make sure that
you keep related ideas and questions together.
Applicable law
In heads of argument, the applicable law and authority for the principles are
presented in schematic format. Provide complete details of the authority to which
you refer.
Application of the law to the facts
It is best to begin this section with the main focus of your argument. The judge
does not always read through the entire document and it is thus best to put your
most important points first. When discussing precedents, you should start with
the strongest cases. Consider the weight of the authority you use. Constitutional
Court or Supreme Court of Appeal decisions are of greater value. Kok et al 146
state that it is important to remember the following ethical rule: You are obliged
to disclose authority unfavourable to your case. While this may be true you are
also allowed to try and undermine unfavourable authority by arguing that the
cases revealed do not really apply or that your client’s situation is distinguishable.
Conclusion
Summarise your argument briefly and say what relief is sought.
For an example of heads of argument see Kok et al 146-148.
Activity 4.5
How does heads of argument differ from legal memorandums?
4.2.6
Drafting basic legal documents
4.2.6.1
4.2.6.1.1.
•
Drafting a contract
Guidelines
Consult with your client: You need to consult with your client because you
need to establish precisely what your client wants. You need to establish
the following facts from your client:
o
Who are the parties to the agreement?
o
What type of agreement is to be concluded between the parties?
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o
Think about the nature of the contract and present ‘what if’ scenarios
to your client.
•
Research the applicable law: The appropriate sources of law prescribe the
essentialia, naturalia and incidentalia of every type of contract. See
Chapter 3 of Kok et al to refresh your memory.
•
Valuable sources on the law of contract are Christie RH (1996) The law of
contract in South Africa Durban: LexisNexis Butterworths and Kerr AJ
(1998) The principles of the law of contract Durban: LexisNexis
Butterworths.
4.2.6.1.2
A first draft
Proceed to drafting the contract. Kok et al 154 provide the following structure:
•
heading to the contract
•
the parties to the contract
•
definitions and interpretation
•
the essentialia
•
incidentalia (clauses specific to the agreement)
•
formal clauses: domicilium citandi et executandi; amendments to the
contract; date and place where the contract was signed.
See Kok et al 154-156 for an explanation of drafting and an example of a contract
of sale.
4.2.6.1.3
Further consultations and revisions of the first draft
Once you have completed the first draft, set up a consultation with your client or
send it to him with an explanatory letter. Make sure that your client understands
the effect of each of the clauses. Make notes of your client’s questions and
concerns. Address these questions and concerns in the second draft of the
contract. You may have to redraft the contract several times.
Ensure that your contract adheres to the principles of plain legal language. Avoid
Latin terminology. Avoid the passive voice. Use clear headings.
4.2.6.2
4.2.6.2.1
Drafting an affidavit
Guidelines
An affidavit is a sworn statement of facts that may accompany a notice of motion.
In a notice of motion, you ask the court for specific relief.
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The affidavit is attached in support of the relief that you are seeking. The
founding affidavit usually consists of a sworn statement by the applicant. See
Kok et al 157.
An affidavit is a story. A judge will read the story and decide if the relief asked
for should be granted. A commissioner of oaths must commission an affidavit.
The commissioner must ask the following questions when commissioning an
affidavit:
•
Do you know and understand the contents of this declaration?
•
Do you have any objection to taking the prescribed oath?
•
Do you consider the oath binding on your conscience?
If the deponent does not object to taking the oath he must say ‘I swear that the
contents of this declaration are true, so help me God’. If the deponent objects to
taking the oath he must say ‘I truly affirm that the contents of this declaration
are true’.
Every page of the affidavit needs to be initialed by the commissioner and by the
person deposing the affidavit in full. Below the deponent’s signature on the last
page of the affidavit the commissioner must:
•
certify that the deponent has acknowledged that he knows and
understands the contents of the declaration,
•
state the manner, place and date of taking the declaration,
•
sign the declaration,
•
print his full name and business address below his signature,
•
state his designation and the area for which he holds his appointment, or
the office held by him if he holds his appointment ex officio.
See Kok et al 158-159 for an example of a Founding Affidavit.
Activity 4.6
What is the essentialia, naturalia and incidentalia of every type of contract?
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Summary
This topic dealt with writing skills. You should now be equipped with writing skills
to write in plain language, complete a written assignment, write an office
memorandum, write a letter to a client, draft a simplified head of argument, write
an assignment on a specific topic and draft basic legal documents. The next topic
deals with interviewing skills.
Self-Assessment Questions
4.1
Complete the exercises on page 123 Kok et al.
4.2
What does the editing of your written assignment involve?
4.3
Use the facts as set out in Kok et al 140 and draft a letter to your client.
You will find the following cases useful: Bennett v Minister of Police and
another 1980 (3) SA 24 (C); Bester v Calitz 1982 (3) SA 864 (O); and
Winterbach v Masters 1989 (1) SA 922 (E).
4.4
When is it necessary to draft an affidavit?
4.5
Why is it necessary to develop good affidavit drafting skills?
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Topic 5
Interviewing skills
Prescribed Reading
Kok, Nienaber and Viljoen Skills workbook for law students 2nd ed (2021) 160168
5.1
INTRODUCTION
This topic relates to the following module outcome/s:
•
•
•
•
Guidelines for interviews
Questions to ask a client or witness
Setting up an interview
The interview
5.2
INTERVIEWING SKILLS
5.2.1
Guidelines for interviews
5.2.1.1
Preparation
You have to prepare thoroughly before interviewing your client or witness.
Properly consider the matter. Research the applicable law. Make a list of the
relevant facts that you will need to prove your case. Make a list of the relevant
questions that you will ask to obtain the necessary information. Consider your
opponent’s case. Pre-empt the questions that your opponent is likely to ask your
client or witness in court.
5.2.1.2
Research
If you have to prepare for an interview you have to brush up on your knowledge
of the relevant law. Textbooks usually contain a helpful overview. Be sure that
the information in the textbook is up to date – checking the publication date
would be a good place to start.
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If the textbook is outdated find the most recent cases on the relevant law in the
law reports or a good computer programme such as JUTASTAT.
Activity 5.1
Discuss the guidelines for interviews.
5.2.2
Questions to ask a client or witness
To be sure that you get the right type and amount of information you need to
ask the right, relevant questions.
For an example of a list of questions in motor collision cases see Kok et al 161162.
Activity 5.2
What are the likely issues in dispute in motor collision cases?
5.2.3
Setting up an interview
To set up an interview you have to phone the client and introduce yourself. You
also need to tell him why you are phoning. Arrange the details of the consultation.
Obtain all possible contact details. You must be tactful when phoning a possible
witness. You should not antagonise them. For examples of how to set up the
interview see Kok et al 163.
Activity 5.3
How do you set up an interview with a client or possible witness?
5.2.4
The interview
It is important to think about practicalities. Send a map to the witness if he does
not know where your firm is located. Arrange parking for your witness.
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Clear your desk. Arrange with the receptionist to have coffee or tea ready. The
witness must be at ease. Avoid distractions. Do not accept phone calls during the
interview. Ask the witness how he wishes to be addressed. Obtain all his contact
details. Tell the witness who you are acting for and why you need his assistance.
Explain that the consultation is confidential and that you will not reveal the details
of the consultation to anyone but your client. Also explain that you want the
witness to tell the truth. It is impossible to discredit a witness who is truthful,
independent, unbiased and reliable.
Ask the witness to give you a brief review of events. You want to be put in the
picture. Take down notes. Stop the witness if he talks too fast. This will enable
you to take comprehensive notes. Also remember to dictate a file note
immediately after the consultation in the witness’s own words. If necessary, you
can arrange for a translator.
If you have previous statements made by the witness, do not read these to him.
Take down facts, not opinions. Do not prepare the witness or put words in his
mouth. You should not mislead a witness to provide you with information. A
witness cannot be forced to consult with you. Once you have obtained a trial date
anyone may be subpoenaed to give evidence in court but it is dangerous to call
a witness if you have not consulted before the trial.
Once you have consulted with your client and your client wants your advice, be
conservative in your assessment of his chances of success. Explain to your client
that you need to gather additional information and that you can only give him an
initial, conditional assessment. If you need additional information it is best to set
up another consultation.
For examples see Kok et al 163-168. This includes an example of a file note of
the consultation.
Activity 5.4
Discuss how a proper interview should be conducted.
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Summary
This topic dealt with interviewing skills. You should now be equipped with
guidelines for interviews, questions to ask a client or witness, setting up an
interview and conducting the interview. The next topic deals with advocacy skills.
Self-Assessment Questions
5.1
How do you prepare for an interview with a client or witness?
5.2
How do you determine which questions to ask a client or witness?
5.3
How do you set up an interview?
5.4
Name the aspects that are important in setting up the interview.
5.5
How do you draft a file note based on a consultation with a client or a
witness?
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Topic 6
Advocacy skills
Prescribed Reading
Kok A Nienaber A and Viljoen F (2021) Skills workbook for law students 2nd ed
Juta Cape Town 169-188
6.1
INTRODUCTION
This topic relates to the following module outcome/s:
•
Guidelines
•
Opening address
•
Examination in chief
•
Cross-examination
•
Re-examination
•
Closing argument
6.2
ADVOCACY SKILLS
6.2.1
Guidelines
6.2.1.1
Preparation for trial
You should not appear in court without being properly prepared. Kok et al 169
explain that even clear-cut cases are lost because of inadequate preparation. You
must research the applicable law and precedents, study all documents and
correspondence in your file and consult with your client and other witnesses. You
must know the facts of the case very well.
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6.2.1.2
Appearing in court: The procedure
Preliminary issues
•
Be punctual. Find out which magistrate and courtroom have been
allocated to your case. Ensure that you arrive on time.
•
If it is your first appearance in front of that magistrate, you need to
introduce yourself to her in chambers before the day’s proceedings.
•
The magistrate enters the court. Everyone stands and remains standing
until the magistrate has taken her seat.
•
If the magistrate makes a finding during the proceedings, you should say,
‘as the court pleases’ and then continue your case.
•
The legal representative who is busy questioning a witness or presenting
an argument during the hearing is allowed to stand up while the other
legal representatives remain seated. See Kok et al 170.
The plaintiff’s case
•
If you act for the plaintiff you will present a short introduction of the
matter in your opening address. The magistrate may have a few
preliminary questions.
•
Your opponent then has the chance to present his opening address.
•
You will then call your first witness.
•
Your opponent will then have the opportunity to cross-examine the
witness.
•
You may re-examine the witness. Re-examination aims to clear any
misperceptions that may have arisen during cross-examination.
•
After you have called all your witnesses you should thank the magistrate
and close your case. You usually close your case by saying: ‘I have no
further witnesses to call and I have presented all my client’s evidence.
That is the case for the plaintiff your worship.’ A judge is addressed as
‘your lordship’.
The defendant’s case
•
Your opponent calls the first witness and proceeds with the examination
in chief.
•
You will then be allowed to cross-examine the witness.
•
Your opponent can now re-examine the witness. Examination in chief,
cross-examination and re-examination will follow for each witness until
your opponent has called all his witnesses and presented all his client’s
evidence.
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•
Your opponent now informs the court that all the evidence has been
presented and closes his case. ‘That is the case for the defendant your
worship.’
Argument
•
You will be allowed to present your closing argument. At this point you
can also hand up typed heads of argument to the magistrate.
•
After this, your opponent proceeds with his closing argument.
•
You get a chance to address the court in response to the defendant’s
closing argument.
Activity 6.1
Explain how the plaintiff’s case is presented.
6.2.2
Opening address
In your opening address, you introduce the matter to the presiding magistrate.
The rules of the magistrate’s court require the opening statement to be short.
Kok et al 171 suggest that your opening address be limited to the following:
•
Address the magistrate: ‘Your worship’.
•
State your name.
•
State who you act for.
•
State what the matter is about.
•
State the issues in dispute.
•
State what evidence you will present.
For example, see Kok et al 171. The opening address should not contain any
arguments or evidence. You are merely introducing the court to the matter. You
present your argument after all the evidence has been led. Be careful not to
present too many facts in your opening address. During the opening address, it
is unethical to include information that you know is not true and include
information that will not be confirmed by a witness during the trial.
Activity 6.2
Use fictitious facts and draft an opening address in a theft case.
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6.2.3
Examination in chief
After the witness has been sworn in, you may proceed with your examination in
chief. The aim of examination in chief is to present your case. You need to
establish which witnesses will be able to provide these facts, and what questions
you need to ask to place these facts before the court.
Kok et al 173 suggest the following approach towards your examination in chief:
•
Ask a few introductory questions.
•
Place the witness at the scene.
•
Present the evidence that the witness provides.
•
Present the evidence in chronological or thematic order.
•
Determine the facts, not opinions about the facts.
•
Present your version of what happened and not what could or might have
happened.
During examination in chief a witness should be allowed to present his version
of what happened in his own words. Kok et al 173 explain that your role is to
ensure that what the witness says unfolds in a coherent, structured way. To
achieve this, you can use a technique called ‘piggy backing’ This technique
involves linking the questions you ask a witness in such a way that the facts
emerge simply and easily. More specifically it means connecting each new
question that you ask a witness to the answer that he has given to the previous
question. For an example of ‘piggy backing’ see Kok et al 174.
The evidence presented by the witnesses during examination in chief must
correspond with the information presented in the pleadings. You want the witness
to tell the court what happened in the witness’s own words. At best the witness
will present a clear, structured and logical version to the court.
In examination in chief, you are not allowed to ask any leading questions. For
examples of leading questions see Kok et al 175, 176.
Activity 6.3
What is the purpose of examination in chief?
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6.2.4
Cross-examination
After you have undertaken examination in chief it is your opponent’s turn to
cross-examine the witness.
The purpose of cross-examination is:
1. To obtain facts favourable to your argument. Your client’s evidence would
have put a certain version to the court during examination in chief. Try to
get the opposite side’s witnesses so far to confront that version.
2. Undermine or put doubt on your opponent’s version of events where it
differs from your client’s version of events.
3. Put your client’s version of events to the opposite side’s witnesses.
Kok et al 177 explain that you are not compelled to undertake cross-examination.
Before you start cross-examining any witness think about whether you will be
able to reach any of the results you have identified. If the witness did not really
undermine your version of events and confirmed important aspects of your case,
why would you cross-examine the witness?
The first purpose of cross-examination is to obtain facts that are favourable to
your client. You should only attempt this if you are thoroughly prepared. During
cross-examination you should attempt to obtain information using leading
questions. See Kok et al 177-182 for examples.
Activity 6.4
What is the purpose of cross-examination?
6.2.5
Re-examination
Once your opponent has cross-examined the witness, you may re-examine that
witness. However, re-examination is only allowed for one of the following three
reasons:
1.
to clarify or mitigate a point that was made against a witness
2.
to reassert your version of events if your opponent has managed to cast
doubt on your version of events during cross-examination
3.
to traverse new issues that arose during cross-examination.
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If you are unable to satisfy any one of these criteria do not re-examine the
witness. You are also not allowed to ask questions during re-examination that
you should have asked during examination in chief and you cannot ask leading
questions. Kok et al 183 suggest that if you have any doubts, you best avoid reexamination. A witness usually senses if his evidence was damaged during crossexamination and will attempt to rectify matters during re-examination. However,
witnesses usually contradict themselves in this process which only makes
matters worse.
Activity 6.5
When is re-examination allowed?
6.2.6
Closing argument
After all the evidence has been presented the parties present their closing
arguments. Where the practicalities of the case allow, it is helpful to prepare
typed heads of argument. Sometimes heads of argument is required in terms of
a particular court’s Court Rules. Heads of argument is a concise set of typed
statements setting out the main points of your oral closing argument. The closing
argument is a means of communication. Because of this, the starting point is to
determine the purpose and the audience of the closing argument as is also the
case with the office memorandum, letter of advice and heads of argument.
The purpose of the closing argument is to convince the presiding officer of your
interpretation of the facts of the case and the legal principles which is something
you must do with the office memorandum and the letter of advice. You
purposefully ‘adapt’ the case as well as you can to benefit your client’s case.
The closing argument usually addresses two matters:
1.
2.
the facts of the case; and
the relevant legal principles.
Kok et al 185 suggest that when you start the closing argument you provide the
presiding officer with a ‘road map’ of the ‘route’ you will follow during your closing
argument. By this, they mean that you should outline briefly how you will
approach the closing argument and in what order you will present the subsections of the closing argument. See Kok et al 185, 186.
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After you have discussed and applied the facts and the legal principles and after
you have analysed your opponent’s case and tried to undermine it, you need to
reach a clear conclusion during which you should set out what you require from
the court:
1.
2.
3.
4.
the plaintiff’s claim must be granted with costs,
the plaintiff’s claim must be dismissed with costs,
the accused must be found guilty and be sentenced to life imprisonment,
the accused must be found not guilty and discharged.
Activity 6.6
Which matters does the closing argument address?
Summary
This topic dealt with advocacy skills. You should now know the requirements for
guidelines, the opening address, examination in chief, cross-examination, reexamination, and the closing argument.
Self-Assessment Questions
6.1
Assume your own facts and draft an opening address to a divorce case.
6.2
Discuss a proper approach to examination in chief.
6.3
Draft a few examples of leading questions.
6.4
Read the witness statement in Kok et al 181 regarding cross-examination
and see if you can identify the contradictions.
6.5
What is the purpose of the closing argument?
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References
Books
Christie RH (1996) The law of contract in South Africa Durban: LexisNexis
Butterworths
Kerr AJ (1998) The principles of the law of contract Durban: LexisNexis
Butterworths
Kok A Nienaber A and Viljoen F (2021) Skills workbook for law students 2nd ed
Juta Cape Town
Case law
Bennett v Minister of Police and another 1980 (3) SA 24 (C)
Bester v Calitz 1982 (3) SA 864 (O)
George NO v Minister of Law and Order 1987 (4) SA 222 (SE)
Kgaleng v Minister of Safety and Security 2001 (4) SA 874 (W)
Prince v President of the Law Society, Cape of Good Hope and Others 1998 8 BCLR
976 (C)
Winterbach v Masters 1989 (1) SA 922 (E)
Legislation
Constitution of the Republic of South Africa, 1996
Journal article
Lotter S The decriminalisation of cannabis: Hallucination or reality (1999) 12 SACJ
184
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