SCL 1501 STUDY GUIDE

said to have done something that is forbidden (crime). The state, through the courts, will charge and try that person (prosecute) on behalf of the wider society or community. If that individual is found to have broken the law, he will be punished according to the law (this is what is called a criminal sanction). Such criminal sanctions include imprisonment, a fine, correctional supervision, community service and so forth. A criminal court takes charge of this process. For example, the law forbids an individual to kill another person or to steal other individuals’ belongings. If someone kills another person, he/she will be charged with committing the crime of murder, and will be prosecuted through the courts; or if he/she steals, he/she will be charged with committing the crime of theft. If the courts find him/her to have, in terms of the law, committed these acts, he/she will be punished or sanctioned. The law also serves to maintain peace and order by controlling the relationship between individual members of the community or citizens as legal subjects. This role is performed by the body of law called civil law. Civil law protects the rights of an individual from being tampered with (disturbed) by another member of the community. It, therefore, regulates the relationship between individuals in the community. If an individual is of the opinion that someone else has tampered with his/her rights as a citizen, he/she may approach a court of law to institute a civil claim (i.e., to sue that person) so that his/her rights may be restored. When someone is said to have disturbed or harmed another person’s right, he/she is said to have committed a delict. If, through the civil courts of course, the said person is found to have committed the delict, the courts may grant an order to restore the rights of the offended party or person. Where the criminal courts speak of guilt and punishment, the civil courts speak of liability of the person in the wrong to the person who is wronged. Illustration For example, the law protects an individual’s right to his/her property. If a citizen, Matome Motapola, happens to own potatoes, no one is allowed to disturb him in his exercise of his right to enjoy them. If another citizen, Marula Malatji, decides to go and damage the potatoes, Matome Motapola will be entitled to approach a court of law and institute a claim against Marula Malatji. In other words, he may sue Marula for that conduct ( i.e., Marula’s action or behaviour of disturbing M at om e ’s right to his potatoes). If the courts find that Marula has committed the delict (damaging Motapola’s potatoes) the court will order that he be held liable for that action and replace the potatoes or pay Motapola a certain amount of money for the loss he has suffered. To recap, it may, therefore, be said that the purpose of law is to create order and stability in the various relationships that exist (i) among humans, and (ii) between humans and things/the environment in a society. Without law, what results is informally referred to as “the law of the jungle”, characterised by uncertainty, unfairness, chaos, self-help, inequality and arbitrariness. In the above illustration, the law is what ensures that there is no self-help or arbitrariness in the way Marula and Motapola deal with any dispute between them. ACTIVITY 1.2 Choose one area of social life (e.g. driving a car, becoming a parent, forming a political party or participating in a public protest) and think about the laws that govern that area of social life. You are encouraged to look for reports in the media (newspapers, magazines, etc) relating to this area of social life. Prepare an argument (for presentation to a group), on why it is necessary to have law in that area of social life. Consider what it would be like if this area of social life was not subject to any rules. Feedback: Firstly, identify the area and state the relevant laws governing it. It would be helpful to state the name of the newspaper. Try to think of other rules (not law) that apply to that area of life. List them. (For your guidance, such rules might include religious or moral precepts, social norms, etc.) ACTIVITY 1.3 For this activity, you need to look for newspaper texts that involve a dispute between various parties (the state, individuals, institutions, organisations, etc). Identify and list the various parties to the dispute and state which areas of the law apply to the dispute. Is there any role that a lawyer can or should play in this dispute? Feedback: Choose a text that deals with an issue or theme that really interests you. It will help i f you start off thinking in gen eral terms: Does the issue in the newspaper concern criminal or civil law? Then ask yourself which particular aspect of crime or delict it is. We hope the discussion in the above sections has shed some light on what law is, and h ig h lig h t e d t h e fa c t that not all rules are laws. We want to stress that this discussion is just a simple illustration. Various parts of this topic or theme will be discussed in greater detail in different modules in the LLB programme. Obviously, a more comprehensive background or introduction to this theme is specifically offered in other modules or programmes that deal with introduction to law. We advise that you liberally refer to any other relevant source on this important theme. In the next section we focus on the significance of developing various skills required in the life of a law student and, ultimately, a lawyer. 1.4 The importance of skills Dealing with issues relating to law can be a challenging process. As a law student, you are not only supposed to know the law or its content, but are also expected to have certain skills (i.e., the ability to do certain things or tasks well) in order to succeed. Thus, over and above knowledge of the legal content, you need to be able to apply that knowledge. For you to be in a position to apply the law, you should also have the ability to function properly in the said environment or legal system. An example of such skill is the ability to access the law (i.e., finding the law and using it effectively). For us, the foremost basic skill that a law student needs is the ability to study effectively. This is quite straight forward. Study skills are crucial to all students, including you, law students. These skills will ensure that you are able to access knowledge of the law, which you have to apply in your relevant lived situations. We refer to a comment that illustrates what is demanded of lawyers: Lawyers can be described as problem solvers, among other things…Attorneys, advocates, judges, legal advisors and others in the field spend their time solving complex problems and making appropriate decisions. Being a lawyer means that you must have the ability and skills to resolve different kinds of problems, especially legal problems. To solve a problem effectively through the use of law, a lawyer must be able to determine whether or not a specific problem is indeed a problem that can be solved through legal means – a lawyer must therefore be able to evaluate facts. Lawyers must also be able to categorise legal problems and to find and analyse critically the legal fields and sources that apply to the problem. In addition, they must have the ability to apply the relevant legal rules and principles together with innovative and critical thinking to arrive at a legally sound and appropriate solution to a problem.6 For us the above extract captures the essence of what a lawyer is expected to do in his/her daily work of practising law. The core to this is the lawyer’s ability to study effectively. By way of an example, you cannot solve complex legal problems in the legal context if you cannot master the basics of effective study. Quite striking in terms of the above text is that a lawyer should be able to “evaluate facts” and “find and analyse critically the legal fields and sources”. These aspects underline the importance of having the necessary tools and skills to engage with the material. This is something that study skills aim to address. However, the text does also point to the need for other skills. The ability to find the applicable legal rule, the ability to construct and sustain sound arguments, and so on, is suggested in the text. These aspects are included in a number of skills, which include the skill to read legal texts, communication and litigation or oral advocacy skills, writing skills as well as numeric skills. We deal with the various skills in the different units of this module or s tudy g uide. These are the skills that you will need not only as a law student, but throughout your career as a lawyer. We have to point out immediately that a more detailed orientation to writing and research is dealt with in another LLB module, Research Literacy for Law (SCL1502). The importance of skills cannot be overemphasised. In the legal career, at least, you cannot afford to be satisfied 6 Humby et al Introduction to law and legal skills in South Africa 349 with merely knowing the law (example.g., various legal concepts, common law, various sections of different statutes or Acts of parliament, and various legal or court procedures). There is a strong need for law students, one way or another, to be in a position to apply that knowledge. A lawyer is expected to apply his/her knowledge in practical situations, such as researching the law, giving legal advice, interviewing clients and witnesses, conducting a trial, litigating and drafting legal documents. Application is a key aspect that defines the legal career. In the text that we have just referred to above, the authors make it clear that lawyers “must have the ability to apply the relevant legal rules and principles”. Th e following i s a well-known story from a famous village called Lephepane, which is situated near Tzaneen in the Limpopo Province of South Africa: Illustration A few years ago, Kiba, a young man from Lephepane village near Tzaneen was doing his grade 12 at the local Mokhapa High School. After passing his grade 12, he could not proceed with his post-school education or training because, he realised his family struggled financially. His father was a subsistence farmer along the Mabele River, and mainly depended on government grants. He spent a whole year in the community doing odd jobs just to survive and save a bit for his college education. At the end of the year, his cousin, Motsulu, who worked in Gauteng came back for the holidays during the so-called festive season. He told Kiba about many job opportunities in Johannesburg, particularly for truck drivers. At the beginning of the next year, Kiba tried e v e r y t h i n g he could to raise money to enable him to have driving lessons at the nearby Ramalema Driving School at Tickeyline, near Lenyenye. He also urged his parents to sell the three goats and eleven fowls that they had to make the needed money. In the second week of his stay at the driving school, he felt confident that he could drive, although he was not really good. He was impatient to get his licence. Almost at the same time, he learnt that one of the instructors at the driving school had a “connection” in the Traffic Licencing Department who could issue drivers’ licences without the learner driver being properly tested as required by the law. Of course, the officer had to be bribed. Kiba saw this as a great chance for him to get the licence quickly and go to Johannesburg to start working as soon as possible. In short, he was not patient to develop his driving skills properly at the driving school. He went home and pushed his parents again to raise an extra two thousand rand to be offered the traffic officer as “cold drink”. His parents had to go to a local “mashonisa” to borrow the money at huge interest. After getting the money, Kiba returned to Ramalema to get the deal done; and indeed after only three days, he had his “driver’s licence” in his hands and went back home to relay the news. Everyone was excited about this and had their expectations raised that Kiba was soon going to get a good job, and thus help his family to improve their lives. He immediately phoned his cousin (Motsulu) to say he was now ready to join him in Johannesburg so that he could be helped in finding a company that could employ him. After a week, Motsulu called him to say that there was a firm that needed a truck driver immediately. Kiba told all members of his family about this good news, and they were happy for him to go to Johannesburg. It was on a Sunday when he boarded a taxi at the Tzaneng Mall taxi rank in Tzaneen. He arrived at Alexander Township (near Johannesburg) that evening to stay with his cousin for the night. In the early hours of Monday, they took a taxi to Johannesburg. As soon as they arrived at Noord Street Taxi Rank in Johannesburg, Motsulu accompanied Kiba to the premises of Triple X (Pty) Ltd in Selby, which is an industrial area of Johannesburg. Upon their arrival, they introduced themselves before Kiba was led to the office for a short interview with the Manager, a certain Mr. Shocks, who was quite satisfied with Kiba. He immediately led Kiba to one of the new trucks parked in the yard and asked one of the foremen to give Kiba the keys for the new truck so that he could drive a few blocks around the premises before taking his first delivery to the nearby Fordsburg. He went back to his office as he was busy with a lot of paperwork and sorting out orders and deliveries. After a while, Mr. Shocks heard a lot of noise caused by the laughter and giggling of workers in the yard. In no time the anxious-looking foreman entered the office and screamed that he should rush outside to “see for yourself”. All the workers were alarmed to see a sweating Kiba struggling to move the truck. “Hey Kiba, what is wrong?” shouted Mr. Shocks. Upon seeing Mr. Shocks approaching, he stormed out of the truck cabin and bolted out of the yard leaving his cousin, Motsulu behind. ACTIVITY 1.4: Read the above story again and answer the following: 1. What lesson (s) can we learn from the Lephepane Village story? 2. Look for aspects in the text that point to the need to have both knowledge/certification and the competence/skill to apply the knowledge. 3. Mindful of what was discussed in the previous section about law, what legal issues arise from the Lephepane Village story? Feedback: We tell you this story so as to draw an analogy (a similarity) between the main persona (Kiba) and a law student (not you?) who is mainly concerned with getting the qualification or LLB without ensuring that he /she also develops the necessary skills to enable him/her to apply his/her knowledge of the law. Just like Kiba in the story, members of your family and your close friends, as well as the wider community will expect a lot from you when you finally obtain your law certificate or qualification, be it the LLB or any other qualification. From our point of view, it is not enough to get that qualification, but rather what is important is for you to be able to use that qualification effectively when the situation demands it of you. You might also find it extremely difficult to make good progress in your legal studies if you do not acquire or develop certain skills that law students need. Paulo Freire speaks of the notion of praxis (that is, action and reflection).7 In terms of this concept, every aspect of thinking or knowledge should be accompanied by action or application. In this regard, there is a need for continuous thinking about our practice, and also continuous application of what we know (i.e. the theory). Taylor explains this notion (of praxis) thus: Freire is clear in stating that praxis can be defined as the action and reflection of people upon their world in order to transform it…What is actually required, according to Freire, is active reflection and reflective action.8 This view of learning and teaching encourages the integration of theory and practice, or the blending of knowledge and the relevant skills. For us, this idea is most relevant to the study of law and its practice. We hold the view that it is quite futile to have all the facts or knowledge if that knowledge cannot be applied when the practical situation and surrounding circumstances require (or demand) it. 1.5 Our approach in the module The approach that we take in this module (and the study guide) is informed by the view that mere knowledge, unless it is integrated with skills, is not useful at all. You may add that it amounts to a waste of valuable time! We therefore advise that when going through this study guide, you should not only memorise the concepts or theory that we refer to. We take this view because we value the importance of skills in the life of a student, more so the student of law. This view is sufficiently captured in the following observation: 7 Freire P Pedagogy of the oppressed (Continuum New York 2000) 73. Freire actually states that “without reflection (inquiry), apart from praxis, individuals cannot be truly human". 8 Taylor PV The texts of Paulo Freire (Open University Press Buckingham 1993) 56. One of the constant dilemmas for law students during their studies is the need to integrate theories learned in the classroom with real world situations, or the practice of law as performed in law firms. There is therefore a need to integrate theory with practice because this is where individuals go through a process of experiencing, reflecting, thinking and acting.9 Usually, a skill is acquired when a student learns through experience. This learning style is often regarded as ‘learning by doing”, rather than merely listening to others or simply reading. In this kind of approach to learning, a student is expected to be active and interact with others in the relevant environment. The approach promotes self- awareness and expression with relevance and meaning. These aspects contribute a great deal to the learners’ knowledge of the real world in which he/she lives. The above quotation echoes the notion of praxis that we referred to briefly in the preceding section. Later on we will introduce you to a number of skills in each learning unit. We do not want you to be limited to what we mention or say in the study guide as we might not include everything you need in order to master a particular aspect or fully develop a particular skill under discussion. As a distant learner, you have to work extra hard to ensure that you understand the various issues that are discussed in each learning unit, because we believe that authentic or real learning cannot be fully captured in a theoretical and written text alone. We therefore urge you to ask yourself the following question whenever an issue, concept or aspect of legal theory is introduced: Now that I know what it is, and how it works, can I apply it when required? In other words, we encourage you always t o be mindful of this module as geared towards helping you to develop various legal skills. You can achieve this if you always ensure that the knowledge of the subject content is not the end result of your study. You should always strive to go beyond knowledge and enter the area of application or skills. For example, in the section on litigation skills or oral advocacy, we introduce a number of legal concepts relating to the prosecution of a matter in a court of law. As an illustration, let us take the concepts o f opening address, examination-in-chief, cross-examination and heads of argument. It is one thing to know and even explain clearly what all these concepts are, but it is quite another for you to be able to apply or use them in relevant situations. That is, the big issue would be whether you can, for instance, also draft an opening address, conduct cross-examination, draft prayers, pleadings, and so on. Similarly, in study skills, you may know exactly what a summary is or what note taking is. However, the question remains: can you summarise a text when needed to? Can you effectively take notes when required to? This explains why we regularly provide you with tasks or activities related to the subject matter in each learn in g unit. It will benefit you a lot if you ensure that you do all the activities included in each le a r n in g unit. Draft when you have to; visit law firms; talk to lawyers or legal practitioners and visit a court of law to observe how, in a practical situation, certain procedural aspects are carried out or applied in real life settings. In brief, you should integrate knowledge with the skills associated with that knowledge. Although there is no prescribed book for the module, we do not expect you to limit yourself to what is written in this study guide. We encourage you to read any other source or sources that deal with various topics in this course. As we stated earlier, please do make an effort to follow on the other textbooks that we refer to in this study guide and reference in the footnotes, if you need more information on a particular topic or theme. 1.6 Conclusion This learning unit has dealt with the concept of law and its functions as the object of legal study. It also gave us the opportunity to distinguish between “law” and “rules”. We have also emphasised the importance of skills in the study of law. In the next l ear ni ng unit, we focus on study skills. 9London M The Oxford handbook of lifelong learning (Oxford University Press New York 2011) 72 Learning Unit 2: Study skills 2.1 Introduction “Education is a democratic learning experience whereas banking education, indoctrination, and training undercut the rational agency of the learner”.10 We are well aware that you have very serious ambitions to be a successful lawyer in future. Being successful will depend on how effective you are in doing your work. That is why we should separate your simple wish to achieve your dream from the reality that you first have to study towards that ultimate goal. You also have to come to terms with the fact that you are no longer a secondary school learner. Unlike secondary school level, studying at university requires that you take more responsibility for your studies. This is even more so because yours is a distance learning university, which means that you will have no one following you around to force you to attend to your study programme. Indeed, a lot will depend on your own motivation, passion, discipline and utter determination. In this learning unit we look at ways through which you can make your study effective. We do this by focusing on various activities and principles that have been found to be useful in the enhancement of one’s study process and learning. Although we gu i d e you through the various topics in this field, you must consult additional sources or relevant reference works such as textbooks dealing with this topic. A good place to start is with the sources referenced in the footnotes. Outcomes At the end of this unit you should be able to do the following: 1. Adapt your learning style to y ou r environment. 2. Work effectively in a study process. 3. Manage time effectively. 4. Form study groups and understand group work. 5. Make notes and summaries. 6. Prepare for and write assignments, tests and examinations. 2.2 Learning and studying 2.2.1 Introduction We cannot begin to discuss the study process unless we understand the concepts of study and learning. Both these concepts are central to the whole business of studying or study process. It will therefore be of great benefit for you if you grasped these concepts so that, going forward, you know what to do , what to embrace and what to avoid when engaged in this process. For most students at university, particularly at Unisa, being familiar with 10 Dale J and Hyslop-Margison EJ Paulo Freire: Teaching for freedom and transformation (Springer New York 2010) 30. material aspects relating to studying will be quite handy for several reasons. As a s tudent at university, you are probably anxious about whether you will cope with your studies or not. We are also aware t h at some of you may have had a very long break from serious academic study and want to ‘‘come back’’ to this commitment, and others may have been students in other fields, presumably having obtained qualifications in those respective areas, and would like to start a career in law. I n ad d i t i on , studying law, you will find, is different from studying in another field. We are mindful of these possibilities or factors. It is factors such as these that make us want to teach you study skills. It will therefore be useful if you could take this topic seriously, and not labour under the impression that since you have been to primary and secondary school through to, perhaps, other post-school institutions, you KNOW how to study. We are sure that you will gain from this learning unit. Not only for your examinations in this module, but for the few years that lie ahead of you in your legal studies. No one is born an effective student. Research (and our experience) has shown that there are certain ways of doing things (e.g., academic skills) that, if seriously considered and practised, almost become part of you and thus enhance your chances of being successful as a student. We consider these elements as we go along in this l earnin g unit. 2.2.2 The concept of studying The concepts of studying and learning are easily confused. Although their meanings are different , they are at the same time closely related. They are at the centre of any meaningful study process. Barrat et al11 state the following: “In very simple terms, when we talk about studying, we mean work that you usually do on your own and that requires a lot of self-discipline”. They go on to say that studying requires that you use various skills that include finding and reading textbooks and other texts, organising your own notes, writing assignments and essays in an academically acceptable manner, preparing for tests and exams and demonstrating your competence in that regard, and so on. Put differently, studying is when you physically engage in the process of organising the study materials (e.g. books, cases and Acts) and using them to acquire knowledge for a certain purpose (e.g. writing assignments and passing exams). Learning, on the other hand, is the impact of th e process of studying on the student. It is thus possible for one to collect all the necessary study materials and engage in what one might tell oneself is studying, without learning anything f rom that process. There is no way in which we can be satisfied with our activities if our study process or methods do not make us learn. Everything we do from the moment we sit at the desk (reading, underlining, making notes, etc) until we leave, should be focused on making learning take place. It is important from the start for us to indicate that learning is an active process. In other words, the student is expected to take responsibility for his/her own learning, get involved in the activities and thus interact with the text. Learning cannot be regarded as “active” when the student simply absorbs the facts he/she is presented with. The student should realise that he/she belongs to the learning space as a human being and not as a non-human entity with an empty brain, which needs to be filled with unquestionable knowledge given by some teacher, lecturer or professor. 2.2.3 Learning as a core element of education Learning should be perceived as a process, rather than an event. Being a process suggests that it involves a lot of on- going activities. For a long time learning has been confused with the mere absorption of information or memorisation. As a pupil you knew nothing, your brain was empty, and the teacher was expected to fill it with facts/information. And such information had to be safely retained in your brain until examination time when it would be regurgitated on to the examination answer sheet (probably to be marked by the same teacher who o r i gi n a l l y stored that information in your brain)! In this sense “[s]tudents are considered empty vessels waiting to be filled with the type of knowledge required”.12 Paulo Feire refers to this system of “learning” as 11 Barrat A, Barday AG, Iya P, Jonker J and Olivier M Skills for law students: Fresh perspectives, Pearson Education and Prentice Hall Cape Town 2010) 5. 12 Dale and Hyslop-Margison Paulo Freire 30. banking education.13 The metaphor of a bank comes to the fore because, as we have just said, facts are deposited in the pupil’s brain until they are withdrawn at the right moment, for a particular purpose. Thus, there is no chance for the pupil to challenge, criticise, discuss or question the “deposited” information. Dale and Hyslop-Margison conclude that Banking education maintains its currency because it appropriates [the] reasoning capacity of students to self-replicate. It limits student reason to accepting the knowledge of others rather than con- structing knowledge based on their own realities and experiences.14 Banking education thrives on the mental onslaught on the student. The student is reduced to the level of an unthinking object with no views, values or capacity to engage with the facts. On the contrary, learning involves the pupil (learner) actively, and as a subjective being, getting involved and participating in the process. It brings about a more or less permanent change in the learner (i.e., it has a meaningful impact on the learner). The concept of a subjective being is important for learning. It presupposes that the learner is not expected to behave like an object in the learning situation. Therefore, t h e learner i s expected to be an active participant with values, ideas, experiences and a mind that has the potential to reason critically. In this respect, Elias propagates Freire’s notion of conscientisation, which is “a form of co-intentional education, in which students and teachers co-intend reality, that is, both are subjects in critically unveiling reality and in recreating knowledge”.15 From this observation, it is clear that learning should acknowledge that the student is a complete human being, equal (in that sense) to the teacher. The teacher, at the same time, should be open to learning from the student. It is clear from this commentary that learning is an active process in that the learner is required to participate. Participation in this sense will involve the following: ● Questioning or interrogating the information and, if necessary, changing or interpreting it. ● Gathering new ideas and information and making it one’s own. ● Relating that information to one’s own life, realties and experiences and applying it in relevant situations in a meaningful way. ● Interacting or discussing with fellow students or the teacher, sharing ideas and thus engaging in dialogue. As you can see, this process (learning) demands that the student should take responsibility. It is in this sense (of wanting you to learn) that we focus on the skills of studying. However, you need to participate actively. ACTIVITY 2.1 1. Think back to how you were taught in the past. Would you say you were made to learn, or were facts or information simply imprinted o n your brain? How do you intend to study in future? 2. Think of the many things you have learnt or know today th a t you did not really have to study. Can you list them? 3. In your study group, discuss the notion of banking education. Feedback: The purpose of this activity is to make you aware that effective learning or learning that has a lasting impression does not necessarily depend on memorisation or consciously exerted mental effort. Learning is wider than the mere absorption of information. Before we go deeper into the content of this learning unit, let us pause to consider what type of student you are. You will be able to do this if you honestly, and in writing, respond to the following statements/claims on a decent sheet of paper, which you should keep very safe. In fact, we suggest that you always keep these points or statements in mind when you tackle each section and subsection of this l e a r n in g unit. 16