LJU4802 PORTFOLIO MEMO - SEMESTER 2 - 2022 - OCT./NOV. - UNISA (DETAILED MEMO)

LJU4802 PORTFOLIO MEMO - SEMESTER 2 - 2022 - OCT./NOV. - UNISA (DETAILED MEMO) QUESTION 1: THE LEGAL PROFESSION 1.1 Read the following advertisement and answer the questions that follow: ADVERT: VACANT POSITION FOR A LEGAL PRACTITIONER (2 POSITIONS) The Legal Practice Council requires the services of a Legal Practitioner to fill a vacant position in Gauteng, Pretoria. The ideal candidate should possess a LLB degree from a recognised tertiary institution, must be admitted as a legal practitioner and must be available to start immediately. The key responsibilities of the legal practitioner will be, among others, to assess complaints received on allegations of misconduct as well as to gather and access information to evaluate complaints against legal practitioners. The ideal candidate must be able to mentor and supervise candidate legal practitioners. Applications together with accompanying CV’s must be sent to: applications @ (a) You have recently been admitted as an attorney. Your parents have just read the advert above and share it with you, but they are uncertain whether an attorney could be classified as a legal practitioner. With reference to legislation, explain to them who will qualify as a “legal practitioner”. (3) (b) Your parents are also curious about difference between a “candidate legal practitioner” and a “legal practitioner”. Briefly explain this difference to them. (2) 1.2 Read the following scenario and answer the questions that follow: Zodwa and Zanele are twins from Mamelodi, Pretoria. They have recently graduated from the University of Thuthuka. Zodwa completed the LLB degree, while Zanele completed a Business Management degree. Zodwa is now practicing as a candidate attorney at a top law firm in Pretoria, while Zanele has just opened a clothing shop. One evening, Zodwa tells her twin sister that she (Zodwa), as a candidate attorney, is suspicious of professional codes that regulate her profession. (a) In view of the above scenario, explain how Zodwa’s profession, is different from a business or trade which Zanele has ventured into, by referring to any 5 characteristics of a “profession”. (5) (b) In view of Zodwa’s statement that she is “suspicious of professional codes”, name and discuss the two types of concerns that Zodwa may have with professional codes and indicate whether these concerns are valid or not. (8) 1.3 Consider the following statement and answer the question that follows: “Objectivity is closely related to good judgment and also to honesty”. Discuss “objectivity” as a core value of a “good lawyer”. (2) [20] QUESTION 2: PHILOSOPHICAL APPROACHES TO ETHICS 2.1 Distinguish between Aristotle's virtue ethics and Bentham's utilitarianism theory of ethics as philosophical bases for assessing ethical conduct. Your discussion should also include the challenges or difficulties attendant to each of these approaches. (15) 2.2 Name and briefly describe the philosophical approach that the South African legal system is currently based on. (2) 2.3 Consider the following statement and answer the question that follows: “One of the characteristics of postmodernity is that universal morality has come to an end.” Explain whether it is possible to have law in postmodern times. (3) [20] The residents of Thuthuka are upset about the municipal tariff increases in the provision of electricity and because the whole of Thuthuka will be moving to a pre-paid electricity system. For the pre-paid electricity to be introduced, the residents are required to pay a conversion fee to switch from post-paid to pre- paid electricity. The residents have unsuccessfully raised their objections at various mass meetings which were called to address this issue. In addition, they held several marches to highlight their concerns, also with no success. You, as a well-known community leader and attorney living in Thuthuka, are approached by the residents to take up the matter on their behalf. They want you to be the face of their civil disobedience campaign aimed at deliberately prohibiting meter readings and refusing to pay for the conversion fee. You are keen to accede to their request but are uncertain whether you, as a legal professional, should get involved in a civil disobedience campaign. The residents, however, remind you of the role that lawyers like Nelson Mandela and Mahatma Gandhi played in other campaigns of civil disobedience in the history of South Africa. In view of the above scenario, explain the following to the residents: QUESTION 3: THE SOUTH AFRICAN LEGAL PROFESSION 3.1 Read the following scenario and answer the questions that follow: (a) The duty of the lawyer to uphold the law of the Republic with specific reference to Matthews v Cape Law Society 1956 (1) SA 807 (C) and Society of Advocates of SA (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T). (8) (b) The meaning of civil disobedience. (2) (c) The circumstances under which a legal practitioner may be justified to engage in civil disobedience. (4) 3.2 Read the following scenario and answer the question that follows: Mr Jones has been an attorney for the past 25 years. Because of his wife’s expensive lifestyle, he has fallen into serious debt. Mr Jones decides to misappropriate trust funds in order to pay his creditors. The Legal Practice Council brings an application to the High Court that Mr Jones be struck off the roll of attorneys. With specific reference to case law, explain the test to be applied by the court to decide whether Mr Jones is fit and proper to continue practicing as an attorney. (6) [20] QUESTION 4: ROLE MORALITY 4.1 Explain the characteristics of an adversarial (accusatory) system, with specific reference to: The distinct roles of a judge and a legal representative in an adversarial system. (12) 4.2 Several alternatives to the dominant adversarial approach have been suggested. Discuss the “responsible lawyer” approach, with specific reference to: A legal practitioner’s responsibility not to mislead the court. (8) [20] QUESTION 5: EXAMPLES OF SITUATIONS OPEN FOR UNETHICAL CONDUCT 5.1 Read the following scenario and answer the question that follows: “Elizabeth & Charles Incorporated”, is a well-known law firm whose area of expertise includes but is not limited to, medical negligence, disability insurance and road accident claims. Mrs Williams has recently consulted with the firm to determine how she can claim compensation from the Road Accident Fund following the unfortunate involvement of her husband (Mr Williams) in a car accident, which left him (Mr Williams) paralysed. The first consultation attended by Mrs Williams is for the law firm to ascertain the facts of the case, to gather the accident reports and to determine the type of expert opinion and reports which will be required. During this consultation with the attorney in charge (Mr Scott), Mrs William describes her feelings of frustration and exhaustion which comes with taking care of her paralysed husband, Mr Williams. Mr Scott attentively listens to Mrs Williams, and he comforts her while indicating that he will do his best to make the claim a success under the no win no fee agreement which they have entered into. Mrs William feels at ease during the consultation and proceeds to mention that she contemplates to kill Mr Williams by giving him an overdose of medication once the claim is successful, as she does not want to live her life caring for a paralysed man. (a) Explain the principle of “privileged information” and motivate whether the above conversation would be protected by this principle. (5) (b) Name and describe the fee agreement which has been entered into between Mr Scott and Mrs Williams. (5) (c) Discuss the distinction between a “no win, no fee” agreement and a “success fee agreement” respectively, as explained in Masango and Another v Road Accident Fund and Others 2016 (6) SA 508 (GJ) (31 August 2016). (2) 5.3 Answer the following questions: 5.3.1 Explain the referral rule. (2) 5.3.2 Explain what a trust account is. (2) 5.3.3 Explain what a conflict of interest is and discuss the circumstances under which a conflict of interest may arise. (4) [20] © UNISA 2022 TOTAL: [100]