SCL1501 past paper and memo for 2011

4.1 Read Text A and Text B (see Activity 4.5) on page 78 of your Study Guide and critique the notion of argumentum ad hominem. (3)

Answer: Ad hominem is a Latin word that means ‘against the man’. Argumentum ad hominem means attacking an arguer instead of validity of their argument (point) or the merits of a case in court. This is the equivalent of “playing the man rather than the ball”. This aspect is important for legal practitioners because they do not have to utter such statement as they will not reinforce their case before the court.

With reference to the Attorneys Act 53 of 1979 and the Legal Practice Act 28 of 2014 determine whether a legal practitioner can be both an attorney and an advocate. (3)

Answer: An advocate is a specialist lawyer who represents clients in a court of law. Unlike an attorney, an advocate does not deal directly with the client – the attorney refers the client to an advocate when the situation requires it. While attorneys can only represent clients in the lower courts in South Africa, advocates can appear on behalf of clients in the higher courts as well. In terms of section 16 of the attorneys act 53 of 1979 Any person who applies to the court to be admitted or readmitted and enrolled as an attorney, shall satisfy the society of the province wherein he so applies if he bas at any time· been admitted as an advocate, that \'his name was subsequently removed from the roll of advocates on his own application.

State” is a non-physical entity, an abstract notion or phenomenon created by citizens through their deemed agreement (i.e. social contract). (a) In the light of the above statement, explain the concept “state” fully, and say why the agreement by citizens in this regard is said to be “deemed”. (4)

Answer: A State is an abstract, non-physical or conceptual entity where a nation (people with common identity) belongs. It ideally remains unchanged Therefore, the extract illustrates the idea that citizens do play a role in the preservation of law and order in a democratic state. The basis for this role is the notion of a “social contract” which all citizens are deemed to have signed or agreed to in order to determine how they will live with one another, and thus create a sense of order, certainty and protection. The rule of law is therefore the basis upon which the social contract is premised.

Explain the concept of law

Answer: The concept of “law” entails different views of rules, norms and what ought to be. The rules are recognised by the state (not religion, science, or sporting codes). A norm is standard of human conduct or a rule of human behaviour and cannot be enforced by the state However, the difference between norms and law is that with laws the whole community is affected. This means everyone will have to abide to the laws. Social rules or norms are codes that only affect an individuals or a small group of people.

Which class does the South African law, including the constitution, serve? Explain fully. (3)

Answer: The Constitution ensures that the human rights of individuals will be safeguarded from random intrusions by the state, other individuals, groups and other dominant organisations. A legal system is created by the citizens and is essentially meant to serve them. It is in this sense that we normally say that a legal system derives its legitimacy and life from the fact that the citizens agree to be controlled or bound by the system in what may be referred to as a social contract.