Legal Practice Core Notes

FACULTY OF BUSINESS AND MANAGEMENT SCIENCES

UNIT FOR APPLIED LAW

LEGAL PRACTICE LPR100S LPR150S LPR10SX

Copyright reserved Adv. R. Brijmohanlall

  • Main Objective: Introduce students to the South African Legal System with an emphasis on civil procedure.

    • Understanding of the law, sources of South African law, law classification, and law administration.

    • Selected areas of civil procedure will also be discussed.

LEGAL PRACTICE CORE NOTES

Prepared By Adv R. Brijmohanlall

CHAPTER 1: INTRODUCTORY STUDY TO THE LAW

1. THE CONCEPT OF LAW

1.1 What is law?

  • Definition: A body of rules governing human conduct, recognized and binding by the State and enforceable by the State.

  • Recognizes conduct of both human beings and entities (juristic persons) such as companies and institutions.

1.2 Purpose of the law

  • Maintains order and justice.

  • Illustration:

    • Quote from Hahlo and Khan: “If life were a broad highway upon which we all proceeded at the same space in the same direction, we should want little regulation… we see a highway in which a never-ending stream of traffic is proceeding this way and that… without rules of the road, there would be chaos and anarchy.”

  • Conclusion: Law limits individual freedom to maintain order.

1.3 The Law, Ethics and Positive Morality

  • Human behavior governed by law, ethics, and positive morality.

    • Ethics: Personal moral conduct rules (e.g., an individual decides not to smoke).

    • Positive Morality: Community-adopted ethical principles (e.g., queueing behavior).

  • Sanctions for transgressions:

    • Law: Prosecution and punishment for crimes (e.g., theft).

    • Ethics: Guilt from one’s conscience for not adhering to personal ethics.

    • Positive Morality: Community rejection of the violator.

2. SOURCES OF SOUTH AFRICAN LAW

2.1 Common Law

  • Definition: Legal system under which South African law developed, primarily influenced by Roman Dutch law, with some influence from Roman law and English law.

2.2 Custom

  • Definition: Law originating from community habits, often unwritten.

  • Criteria for Custom to Be Law (Van Breda & Others v Jacobs & Others 1921 A 330):

    1. The custom must be reasonable.

    2. It must have existed for a long time.

    3. It must be generally recognized.

    4. The content must not contradict existing laws.

  • Example: Green v Fitzgerald 1914 A 88 - Custom abolished the crime of adultery, which became “abrogated by disuse.”

2.3 Judicial Precedent

  • Also known as case law; derives from judgments of superior courts.

    • Courts apply rather than create law; however, new law can emerge (judicial precedent).

  • Key Concepts:

    • Stare Decisis: Follow existing precedents for legal certainty and consistency.

    • Ratio Decidendi: Legal principles forming the basis for a judgment.

    • Obiter Dicta: Remarks made by the judge that do not hold binding force.

2.4 Legislation

  • Supreme Law: The Constitution of the Republic of South Africa Act 108 of 1996 supersedes all other legislation. Any law inconsistent with the Constitution is invalid.

  • Legislative Authority:

    • Parliament can pass new laws provided they conform with the Constitution.

    • Provincial authorities also hold legislative power in accordance with the Constitution.

  • Subordinate/Delegated Legislation:

    • Regulations made by appointed persons/institutions under legislative authority.

    • Examples of delegated legislation include:

    1. Proclamations by the State President.

    2. Regulations by ministers.

    3. Provincial legislation/ordinances.

    4. Municipal by-laws.

    5. Rules from statutory bodies (e.g., South African Medical and Dental Council).

3. CLASSIFICATION OF SOUTH AFRICAN LAW

  • Divided into Private Law (Civil Law) and Public Law.

3.1 Public Law

  • Governs relationships where the State holds authority. Examples include expropriation of property, and relationships among state departments.

3.2 Private Law

  • Concerns relationships between individuals without state authority, demonstrating equal standing. Examples include contracts and family law.

3.3 Formal and Substantive Law

  • Substantive Law: Determines individual rights and duties.

  • Formal Law: Governs the procedures for resolving disputes in court.

  • Divisions include:

    • Law of Procedure

    • Law of Evidence

    • Both divided into Criminal and Civil Law.

4. PERSONS AND THE LAW

4.1 Definition of a Person

  • A “person” is any entity capable of bearing rights and duties.

  • Types:

    • Natural Persons: Human beings.

    • Historical exclusion: Slaves not previously regarded as persons.

    • Juristic Persons: Non-human entities that can possess rights and duties (e.g., companies).

4.2 Existence of Persons

  • Natural Persons: Established at birth, provided there is life post-separation from the mother.

  • Unborn Child: May be considered a person under certain conditions (e.g., inheritance rights, claims for damages due to maternal injury).

4.3 Juristic Persons

  • Established by following legal procedures (e.g., company registration).

CHAPTER 2: ADMINISTRATION OF JUSTICE, LEGAL PERSONNEL, AND THE COURTS

1. DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

  • Oversees the administration of law, ensuring the proper functioning of courts.

1.1 Appointment of Officials

  • Magistrates: Appointed by the Minister of Justice (on recommendation from the Magistrates Commission) for Magistrate court proceedings.

  • Judges: Appointed by the State President (on recommendation from the Judicial Services Commission).

  • Registrar: Each High Court has a Registrar responsible for administrative tasks.

  • Master of the High Court: Oversees the administration of estates, sequestration, and guardian funds.

  • Clerk of Court: Appointed for Wizard Court to perform similar administrative functions as the Registrar.

  • Sheriff: Appointed for service of pleadings and imprisonment enforcement.

  • Registrar of Deeds: Responsible for registering immovable property rights.

  • State Attorney: Represents the state in civil matters.

2. LEGAL PRACTITIONERS

2.1 Attorneys and Advocates

  • Legal profession is divided into Attorneys and Advocates.

  • Changes since 1995 allow certain attorneys to appear in all courts.

2.2 Attorneys

  • Must have an LLB/B Proc degree, two years of articles, and pass the attorney’s admission examination.

2.2.1 Exemptions from articles

  • Possible if a candidate:

  • Completes a practical legal training course and serves one year community service.

  • Completes other specified legal training.

  • Has two years of relevant work experience.

  • Must be over 21, a citizen/permanent resident, and a fit person.

2.2.2 Functions of an Attorney

  • Assists clients in legal proceedings, drafting of contracts, and administration of estates.

  • Can appear in lower courts and may appear in the High Court under conditions.

  • Can qualify as a Notary Public and Conveyancer by passing separate examinations.

2.3 Advocates

  • Must hold an LLB degree, undergo a period of pupilage, and pass the advocate's admission examination.

  • Advocates receive briefs from attorneys and may not consult clients directly.

2.3.1 Functions of an Advocate

  • Primarily litigators, represent clients in court, provide legal opinions, and perform chamber work.

2.4 State Prosecutors and State Advocates

  • State Prosecutor: Represents the state in criminal matters, must likely have an LLB degree.

  • State Advocate: Represents the state in civil and criminal matters.

  • State Prosecutors undergo training programs by the National Prosecuting Authority (NPA).

2.5 Judges and Magistrates

  • Judges: Preside over superior courts, appointed by the State President.

    • Responsibilities include presiding over various cases and issuing judgments.

  • Magistrates: Appointed for lower courts, handle criminal and civil cases.

    • Ensure fair trials and uphold justice.

2.6 Paralegals

  • Defined as individuals qualified to perform legal work with basic legal knowledge.

  • Employed in various legal-related environments offering cheaper services for legal advice.

3. STRUCTURE AND ORGANISATION OF AN ATTORNEY’S PRACTICE

3.1 Forms of Business

  • Sole Proprietor: Individual practice.

  • Partnership: Most popular, formed by agreement; partners share joint responsibility for debts and liabilities.

  • Private Company: Offers liability protection and operates as a separate legal entity.

3.2 Structure

  • Divided into litigation, conveyancing, and estate departments. Larger firms may include commercial and labor law departments.

3.3 Staff

  • Litigious Staff: Includes candidate attorneys, professional assistants, and partners.

  • Non-Litigious Staff: Secretaries, clerks, and support staff assisting with administrative tasks.

EXERCISE

  1. Discuss differences between Law, Ethics, and Positive Morality, providing examples.

  2. Analyze a municipal regulation against street vending at traffic intersections:

    • Identify the normative system.

    • Explain the sanctions for violations.

  3. List sources of South African Law.

  4. List different legal systems influencing South African common law.

  5. Explain community custom and requirements for recognition as law.

  6. Define Judicial Precedent.

  7. Define subordinate/delegated legislation.

  8. Advise on forming a law partnership, including advantages and disadvantages.

  9. Outline options to be admitted as an advocate under the Legal Practice Act.

  10. Discuss the process to become an attorney.