SCL1501 EXAM PACK 2024

SECTION 1 1.The point of departure for every law student is an understanding of the concept of law. 1.1 Explain the difference between law and morality or religion (3) The Law is the system of legal rules recognised and enforced by the government to control human behaviour. It has the following characteristics: System of rules Intended to control human behaviour Should be recognised by the state Enforced by the state On the other hand morality or religion refers to the principles concerning the distinction between right and wrong or good and bad behaviour. 1.2 Illustrate with examples how the concepts law and rules are generally confused by ordinary citizens or non-lawyers (3) Citizens confuse laws and rules in the sense that they use them interchangeably, yet they mean different things. However, it must be noted that the two are different in that Laws are set and enforced by organs of state whereas rules are set and enforced by organizations and individuals and Laws are inflexible and carry stiff penalties while rules are more flexible and have lighter consequences when broken 2.1 With reference to the extract explain the concept ‘social contract” and the role played by citizens in a democratic state. SOCIAL CONTRACT refers to the consensus of a group of people who have willingly united and agreed to a system of rules by which their lives will be governed, and which provides order, protection and certainty in the situation Frequently, the legal processes centre on an individual, who is a member of society. In this light, let us now pause and consider the following quotation: lOMoARcPSD| 2 Participation in the legal process is not limited to legal practitioners or other such formal functionaries. In the new democratic constitutional order, we are all, as citizens, obliged as a maintenance of the legal system to ensure the perpetuation of its principles and its status. We do so, firstly by adhering to (and sometimes breaking) laws and secondly by participating in processes related to or that result in law-making, such as referenda and elections. Our view is that the individual, who cases may be a client, a witness, an accused person or a complainant in a criminal matter, a plaintiff or defendant in a civil matter, and so on, should be considered a fundamental actor in the legal system and processes. He/ she should not be underestimated or overlooked 2.2 Differentiate between state and country (2) Country refers to a large nation with its own government and economy whereas a state refers to a large governing area within the country. 2.3 ln the extract Mosibudi Mangena consistently uses the term state. Would it make any difference had he used the term government instead? Give reasons to support your answer. (4) Yes, it would make a difference because the two terms are different. 2.4 What is the difference if any, between the legislative wing and Parliament. Give reasons to support your answer. A legislative wing is a body for debating and passing laws e.g. lower and upper house while Parliament is the term for the whole combination of law making bodies. 3.1 Explain how the above extract links to the concept of banking education and praxis (4) Bank education refers to the mere absorption of information in the sense that as a pupil one knew nothing, and brain was empty, and the teacher was expected to fill it with information which must stuck in the brain until examination time when it should Downloaded by Yolanda-Yoyo Sekgala () lOMoARcPSD| 3 be regurgitated on the examination answer sheet. In other words, facts are deposited into the pupil’s brain until they are withdrawn at the right time for a certain purpose. This is shown in the extract where it says without self-reflection human beings degenerate into a de personalised state o parrotry, conformity and robotics. Praxis provides that in every aspect of thinking it should be accompanied by action and application. It can be defined as the action reflection of persons upon the world. Active reflection and reflective action is required. This is concurred in the passage when it is stated that self-reflection means a process of subjective becoming by consciously grasping with objective reality. 3.2 What would Kgalema Motlanthe ‘s view of “learning” be? Give reasons to support your answer Kgalema‘s view of learning is that there should be self-reflection whereby one questions the basis of the underlying postulates that frame the way things are done. 4. Explain the concept, subjective being and say how Kgalema Motlanthe echoes it in the extract “Eulogy to Ahmed Kathrada” An individual does not behave like an object, an object cannot think, whereas a subjective being can think and apply knowledge to practical situations. It is echoed in the extract when it is mentioned that the process of self-reflection makes and remakes our subjectivity. Section 2 1.1 Attorney ‘s account Service Rendered Fees(VAT excl) Letters Received (3*R77=R231) R231 9 Letters written (9*R117 =R1053) R1053 Affidavits 6*R87 = R522 10*R87 = R870 6*R87 = R522 Downloaded by Yolanda-Yoyo Sekgala () lOMoARcPSD| 4 12*R87 = R1044 R2958 Telephonic consultation 1*R925 = R925 2*R925 = R1850 R2775 Total R7017 Plus Vat 14% R982.38 Total R7999.38 1.2 Chris was 25% negligent and therefore has to pay 25%of damage to the VW Golf = 25/100 * R33 000 = R8250 Chris has to pay Kenny R8250 Owner of VW was 45% negligent therefore has to pay 45% of the damage to Hyundai. Pre -accident value – salvage value = Total damage R446 000 – R65 000 = R381 000 45/100 * R381 000 =R171 450 Kenny has to pay Chris R171 450 – R8250 = R163 200 1.3 Matlou Enterprises R222 + R2.30(333) = R987.90* 6 = R5927.4 Downloaded by Yolanda-Yoyo Sekgala () lOMoARcPSD| 5 Mokgasebi R224 + 2.25(333) = R973.25*6 = R5839.5 The difference between the two quotes is R5927.4 – R5839.5 =R87.90 Section 3 1.1 What is communication? Your answer should include an explanation as to whether good English language usage is a requirement for communication (2) Communication is a two-way process of reaching mutual understanding, in which participants not only exchange (encode-decode) information, news, ideas and feelings but also create and share meaning. In general, communication is a means of connecting people or places. English usage is a requirement for communication because without the use of good English it could be difficult to understand what the other person is saying. 1.2 Explain with examples the role of nonverbal communication as a tool for persuasion and credibility in legal practice (4) The importance of non-verbal communication to a lawyer’s world of work lies in the fact that legal practice is based on persuasion and credibility. By way of an example, one must persuade their client somehow that they can win the case, or to persuade the presiding officer (magistrate/judge) to accept your line of argument. Non-verbal communication plays a very important role in this regard. It is in this respect that it is often said that non-verbal communication can make or break a lawyer. One should use non-verbal communication to give credibility to your appearance in court while arguing a matter. Body language, attitude, clothes, and so on can help on your route Downloaded by Yolanda-Yoyo Sekgala () lOMoARcPSD| 6 to success, or it can be the reason for failure as a lawyer. Non-verbal communication transfers feelings, emotions and attitude. 1.3 Use two examples to illustrate how inductive reasoning is used in argumentation (3) inductive reasoning as a form argument is the opposite of deductive reasoning in which the premises seek to supply convincing evidence for the truth of the conclusion. Example of inductive reasoning 1. Two independent witnesses claimed Mary committed the murder. 2. Mary’s fingerprints are only the ones on the murder weapon. 3. Mary confessed to the crime. 4. So, Mary committed the murder 1.4 Create a court room scenario or any other situation where the following forms of irrelevance are used. “Argumentum ad hominem” and Argue from authority (4) Argumentum ad hominem is when one goes off topic by attacking the arguer instead of the argument It is a personal attack on the arguer instead of attacking the argument that he/she is presenting. This is the equivalent of “playing the man rather than the ball”. It should however be noted that whatever is said about a person does not affect his/her argument. A prominent example in the South African socio-political discourse relates to a young political leader from Limpopo Province who is simply criticised on a personal level without his solid ideas being factually contested. It is common to come across remarks such as: “No, he is not right, man, he is young. He is from Limpopo”. In this example, Downloaded by Yolanda-Yoyo Sekgala () lOMoARcPSD| 7 there is no relation between his age, where he comes from, and the cogency of his ideas. Thus, his critics are attacking the young man instead of his argument. Argue from authority –In this instance, the arguer introduces a name to strengthen the argument. There is a correct way of using authority, i.e. the name stands for an argument or an accepted view. However, to rely on a name to bolster a weak argument cuts no ice. 2. 2.1 Explain how the above extract indicates that Teanet is a layman (5) The following indicate Teanet is a layman: The magistrate is referred to as hey you. He is not using the correct opening address The language is not legal language 2.2 a. Based on the above extract daft what would be an appropriate opening address (4) Comprehensive opening address Your worship My name is Natasha Silver I act on behalf of Peta Teanet My client wants to file a divorce against of constant abuse done against Mma Mohlatlego. I will call Makopini, a friend of Teanet who a witness to the constant abuse has been b. Draft appropriate ‘prayers’ to give effect to the relief/remedy sought by Peta Teanet from the court Downloaded by Yolanda-Yoyo Sekgala () lOMoARcPSD| 8 Your worship l pray that this court considers the constant abuse my client Peta. Teanet has been subjected and cannot take anymore by Mma Mohlatlego and grant the divorce he seeks. Section 4 1.1 Explain how judges are appointed (2) A judge is any appropriately qualified woman or man who is fit and proper person. He/she is to be appointed to the Constitutional Court must also be a South African citizen. When judicial officers are appointed, the judiciary must broadly reflect the racial and gather composition of South African citizen. The President must appoint the judges of all other courts on advice of the Judicial Service Commission. 1.2 Explain the notion that all legal actors who exercise the authority to prosecute matters on behalf of the state exist according to the set levels in a hierarchical order (3) All legal actors who exercise the authority to prosecute matters on behalf of the state exist according to set levels in a hierarchical order. The order flows from the top: that is, the National Director of Public Prosecutions (NDPP), down to Directors of Public Prosecutions and finally to individual prosecutors or state advocates. We can, therefore, say that the power to institute criminal proceedings on behalf of the state rests with the National Director of Public Prosecutions. The Director of Public Prosecutions decides on matters that may be proceeded with, while the role of the prosecutors or state advocates is to prosecute these cases 1.3 Differentiate between state attorneys and state legal advisors (2) State attorneys: They are civil servants who represent the state (or government departments) in civil legal matters or disputes. In this regard they may bring or defend actions and applications. State attorneys operate in terms of legislation. The work of state attorneys is like what (private) attorneys do, except that the state attorneys work for the government or its agencies only. Downloaded by Yolanda-Yoyo Sekgala () lOMoARcPSD| 9 State legal advisors: These are also civil servants who mainly perform the following functions in terms of playing a supportive role for government departments. They provide legal advice and research; draft legislation; advise state on legal and policy matters at national level; evaluate Constitutional Court decisions or judgments and give advice to the Executive; assist provinces and sometimes municipalities to limit costs; obtain second opinions; help municipalities to draft by-laws and provide training in the drafting of by-laws; offer training in drafting documents and translating indigenous languages 1.4 Describe the extent to which the Legal Practice Act has impacted on the structure of the legal profession and legal actors (3) The Legal Practice Act substantially affect the legal system, particularly how the various role players will operate when its relevant sections or provisions come into force and effect. Section 5 1.1 State the difference between the following a. Ratio decidendi and obiter dictum The ratio decidendi (the reasons for the decision) will bind lower courts dealing with the same disputes. A decision of the Supreme Court of Appeal will be binding on all High Courts and lower courts. Decisions by High Courts will be binding on lower courts. Decisions of the Constitutional Court bind all other courts. On the other hand, obiter dictum is a remark in passing and does not influence the decision of the c b. Majority and minority judgement Majority judgment A majority judgment means that most judges who have heard a case give the same judgment based on the same reasons. One judge gives the judgment and the others Downloaded by Yolanda-Yoyo Sekgala () lOMoARcPSD| 10 concur (agree) with it. The ratio decidendi of the majority judgment creates the precedent to be used in future cases and is binding. Minority judgment In a minority judgment, the judge disagrees with the majority and reaches a different conclusion. In such a case a judge differs from most judges as far as the judgment and the reasons for the judgment are concerned. Such a judgment does not establish a precedent. It can, however, have persuasive force in the future. It is also possible for a judge to concur (or agree) with the minority judgment of another judge. c. Primary and sources of law Primary sources of law are authoritative publications of law produced by law – making bodies e.g. common law, legislation, case law and custom 1.2 What is the importance of the doctrine of precedence (2) The system of precedent argues that the lower courts are bound by the decisions of the higher courts. The hierarchy of courts involves the division of the courts into ranks. For the precedent system to operate, there are two requirements required that is the hierarchy of courts and an effective system of law reporting. 1.3 Describe persuasive precedent (2) Persuasive precedent does not create the law and do not bind a court e.g. books, journal articles. 1.4 Explain the reasons why the President must sign an Act before it can be published (2) This is a Constitutional requirement 1.5 Briefly explain what is meant by order as to costs (3) Downloaded by Yolanda-Yoyo Sekgala () lOMoARcPSD| 11 These costs usually include both lawyers’ fees, and the expenses involved in running a case, such as fees for subpoenas, witnesses, and getting copies of records, and expert reports. These expenses are called “disbursements”. In some kinds of cases, the amount of legal costs that you can be ordered to pay is set down in court rules. For example, default judgments, however, in most cases the court will order costs to be paid “as agreed or assessed”. This means that the parties can try and come to an agreement about the amount of costs that should be paid. If they cannot reach an agreement, they get a cost assessment to decide what the amount should be. The presiding officer (i.e., the judge or magistrate) makes an order. This order will stipulate which party has to pay which costs. Sometimes one party is ordered to pay both his own legal representative’s account, as well as the other party’s expenses. Sometimes each party must pay his/her own costs, or one party may have to pay a certain portion of his/her own costs and the other party pays the rest. These orders are called ‘‘orders as to costs’’ and are given at the end of a case. Sometimes, no order as to costs is made. This means that no party is awarded costs against the other. Then each party pays his/her own legal costs. 1.6 The most important thing that a writer does when thinking about writing an article is to have a structure to work on. Name at least 4 structural elements that a good article should consist of (2) A good article consists of the following: ● a title ● an abstract ● an introduction ● arguments ● conclusion 1.7 There are two forms of legal proceedings in our civil court system. Action and Application proceedings. Mention the characteristics of an application proceeding (3)