TOPIC 1: COMPARATIVE LAW
MEANING
Comparative law: The study of the relationship between legal systems, including their
differences and similarities.
o On a macro level
Macro-comparison vs. micro-comparison
o Macro comparison: Difference between legal systems
o Micro-comparison: comparing different elements of different legal systems
Foreign law
o It is the first step to comparative law.
o However, simply considering a foreign legal system does not encompass
comparative law.
o You need to compare the laws and draw conclusions.
Legal history
o Comparative law and legal history are closely related.
o Comparative law typically needs a legal historical dimension to understand the laws,
processes and institutions it considers.
o Legal history also needs a comparative law dimension to understand whether
certain phenomena are applicable only to a particular region or to understand
whether it is more common.
- E.g. the reception of Roman Law in Europe can only be understood if you
look at Europe as a whole.
Different lenses
o Legal historical lens
o Literature based approach
- Compare literature
- Case law, legislation and other sources
o Functional approach
- This means that you assume that different jurisdictions have adopted
different solutions to the same problems.
- E.g. Class actions – every jurisdiction would like provide access to justice to
large number of individuals in a single suit, but different jurisdictions have
adopted different solutions.
o Balanced approach
- Consider literature applicable to the topic, but in order to have a good
understanding of the topic you take legal history into account.
- Different countries have different cultures.
- Need to consider why we are comparing these legal systems.
PURPOSE
Informs notional law-making
Assist judges in resolving difficult questions
Provide a legal basis for legal unification or harmonization
Increase knowledge and extend awareness, especially in legal education
1
,PROBLEM
Foreign system: nothing to report
Rethink original question – avoid looking at it from perspective of own legal system
Focus on concrete problem – don’t allow vision to be clouded by concepts of one’s own
national system
Avoid limitations and restraints
o Applies particularly to the question of sources of law
Consider South African position first
o This is because you need to have a proper understanding of what the problem is
before looking at foreign jurisdictions.
2
,PRACTICE AND PROCEDURE
Legal practitioners
o Relationship with various individuals and institutions, commencing with client.
RELATIONSHIP WITH YOUR CLIENT
Am I able to accept this matter?
o On what basis can you decline a mandate from a client?
o Is there a potential conflict of interest?
Crystallised grounds of when you don’t need to accept a client’s mandate, are now codified
in the Legal Practice Code of Conduct.
You may refuse to take on a client for any reason as long as it is not discriminatory.
Don’t act for client if:
1. Lack of expertise
- To what extent must you be equipped before accepting the instruction?
Before you have done research.
- Are there limitations to your ability to take on new clients depending on your
field of expertise?
- The discretion to take a client on is an important one because once you have
done this the mandate governs the standard of your work.
- Code 18.14 “Any attorney shall perform professional work or work of a kind
commonly performed by an attorney with such a degree of skill, care or
attention, or of such a quality or standard, as may reasonably be expected of
an attorney”
2. Potential conflict of interest
- For example, the client has a case against Nedbank and Nedbank is one of
your clients.
- Usually bigger firms send out a conflict notice asking a client or
colleague whether it would be a conflict of interest to provide advice
to a specific person or company.
- If you have a personal interest in the issue
- Then you need to remove yourself from the litigation.
3. Client gives unethical, unreasonable, conflicting or fraudulent instructions
- Example, client gives you a brief overview of what happened over then
phone, but then during the first meeting it comes to light that there are
discrepancies in the client’s story.
What is the risk if you accept this client?
Not clear what the instructions are that was given.
Rule 9.6
A legal practitioner shall, when a client gives conflicting
instructions, or attempts to retract earlier instructions,
withdraw from the matter if continuing to act for the client
would cause unavoidable embarrassment to the legal
practitioner.
4. Time available
3
, 5. Another mandate
- If another firm has given out a mandate, then you cannot act on behalf of
that same client.
- Code 18.13 “An attorney may not accept a mandate knowing there to be an
existing mandate, or a freshly terminated mandate, given to another
attorney without explaining to the client all the implications of his doing so,
including in particular the cost implications”
6. Financial means
- The firm may require that client to pay upfront if they suspect that they
cannot afford it.
- Firms do not want to act on a contingency fee basis.
However, if a firm has acted on contingency fee basis previously for
clients with similar means, it could be discriminatory if you now say
no.
o Then you need to explain why you make this differentiation.
If you are unsure, excuse yourself and ask.
Must have reasonable competence. If not, give the client the option to instruct another
practitioner.
o “Reasonable competence”
- The court looks at what the reasonable competence of a legal practitioner in
the attorney’s profession is.
- Van Wyk v Lewis
In deciding what is reasonable, the Court will have regard to the
general level of skill and diligence possessed and exercised at the
time by members of the branch of the profession to which the
practitioner belongs.
- Ebersohn v Prokureursorde van Transvaal 1996 (1) SA 661 (T)
An attorney should have the necessary knowledge and expertise and
in executing his mandate, he should display the care that is to be
reasonably expected of an average attorney.
- Code 18.14 “Any attorney shall perform professional work or work of a kind
commonly performed by an attorney with such a degree of skill, care or
attention, or of such a quality or standard, as may reasonably be expected of
an attorney”
- Legal Practice Code of Conduct
First consultation with your client
Always be courteous
o How?
- Make the client feel welcome and comfortable.
Clean office; offer tea; comfortable environment
- Show interest and give your undivided attention
No interruptions, e.g. phone calls, attending to emails, staff
interruptions
- Clients may become emotional.
- Build mutual trust and confidence and demonstrate that you under your
client’s problem.
4
MEANING
Comparative law: The study of the relationship between legal systems, including their
differences and similarities.
o On a macro level
Macro-comparison vs. micro-comparison
o Macro comparison: Difference between legal systems
o Micro-comparison: comparing different elements of different legal systems
Foreign law
o It is the first step to comparative law.
o However, simply considering a foreign legal system does not encompass
comparative law.
o You need to compare the laws and draw conclusions.
Legal history
o Comparative law and legal history are closely related.
o Comparative law typically needs a legal historical dimension to understand the laws,
processes and institutions it considers.
o Legal history also needs a comparative law dimension to understand whether
certain phenomena are applicable only to a particular region or to understand
whether it is more common.
- E.g. the reception of Roman Law in Europe can only be understood if you
look at Europe as a whole.
Different lenses
o Legal historical lens
o Literature based approach
- Compare literature
- Case law, legislation and other sources
o Functional approach
- This means that you assume that different jurisdictions have adopted
different solutions to the same problems.
- E.g. Class actions – every jurisdiction would like provide access to justice to
large number of individuals in a single suit, but different jurisdictions have
adopted different solutions.
o Balanced approach
- Consider literature applicable to the topic, but in order to have a good
understanding of the topic you take legal history into account.
- Different countries have different cultures.
- Need to consider why we are comparing these legal systems.
PURPOSE
Informs notional law-making
Assist judges in resolving difficult questions
Provide a legal basis for legal unification or harmonization
Increase knowledge and extend awareness, especially in legal education
1
,PROBLEM
Foreign system: nothing to report
Rethink original question – avoid looking at it from perspective of own legal system
Focus on concrete problem – don’t allow vision to be clouded by concepts of one’s own
national system
Avoid limitations and restraints
o Applies particularly to the question of sources of law
Consider South African position first
o This is because you need to have a proper understanding of what the problem is
before looking at foreign jurisdictions.
2
,PRACTICE AND PROCEDURE
Legal practitioners
o Relationship with various individuals and institutions, commencing with client.
RELATIONSHIP WITH YOUR CLIENT
Am I able to accept this matter?
o On what basis can you decline a mandate from a client?
o Is there a potential conflict of interest?
Crystallised grounds of when you don’t need to accept a client’s mandate, are now codified
in the Legal Practice Code of Conduct.
You may refuse to take on a client for any reason as long as it is not discriminatory.
Don’t act for client if:
1. Lack of expertise
- To what extent must you be equipped before accepting the instruction?
Before you have done research.
- Are there limitations to your ability to take on new clients depending on your
field of expertise?
- The discretion to take a client on is an important one because once you have
done this the mandate governs the standard of your work.
- Code 18.14 “Any attorney shall perform professional work or work of a kind
commonly performed by an attorney with such a degree of skill, care or
attention, or of such a quality or standard, as may reasonably be expected of
an attorney”
2. Potential conflict of interest
- For example, the client has a case against Nedbank and Nedbank is one of
your clients.
- Usually bigger firms send out a conflict notice asking a client or
colleague whether it would be a conflict of interest to provide advice
to a specific person or company.
- If you have a personal interest in the issue
- Then you need to remove yourself from the litigation.
3. Client gives unethical, unreasonable, conflicting or fraudulent instructions
- Example, client gives you a brief overview of what happened over then
phone, but then during the first meeting it comes to light that there are
discrepancies in the client’s story.
What is the risk if you accept this client?
Not clear what the instructions are that was given.
Rule 9.6
A legal practitioner shall, when a client gives conflicting
instructions, or attempts to retract earlier instructions,
withdraw from the matter if continuing to act for the client
would cause unavoidable embarrassment to the legal
practitioner.
4. Time available
3
, 5. Another mandate
- If another firm has given out a mandate, then you cannot act on behalf of
that same client.
- Code 18.13 “An attorney may not accept a mandate knowing there to be an
existing mandate, or a freshly terminated mandate, given to another
attorney without explaining to the client all the implications of his doing so,
including in particular the cost implications”
6. Financial means
- The firm may require that client to pay upfront if they suspect that they
cannot afford it.
- Firms do not want to act on a contingency fee basis.
However, if a firm has acted on contingency fee basis previously for
clients with similar means, it could be discriminatory if you now say
no.
o Then you need to explain why you make this differentiation.
If you are unsure, excuse yourself and ask.
Must have reasonable competence. If not, give the client the option to instruct another
practitioner.
o “Reasonable competence”
- The court looks at what the reasonable competence of a legal practitioner in
the attorney’s profession is.
- Van Wyk v Lewis
In deciding what is reasonable, the Court will have regard to the
general level of skill and diligence possessed and exercised at the
time by members of the branch of the profession to which the
practitioner belongs.
- Ebersohn v Prokureursorde van Transvaal 1996 (1) SA 661 (T)
An attorney should have the necessary knowledge and expertise and
in executing his mandate, he should display the care that is to be
reasonably expected of an average attorney.
- Code 18.14 “Any attorney shall perform professional work or work of a kind
commonly performed by an attorney with such a degree of skill, care or
attention, or of such a quality or standard, as may reasonably be expected of
an attorney”
- Legal Practice Code of Conduct
First consultation with your client
Always be courteous
o How?
- Make the client feel welcome and comfortable.
Clean office; offer tea; comfortable environment
- Show interest and give your undivided attention
No interruptions, e.g. phone calls, attending to emails, staff
interruptions
- Clients may become emotional.
- Build mutual trust and confidence and demonstrate that you under your
client’s problem.
4
