LU3: Reading Legal Text Flashcards
1
Q
How to read and understand an act of parliament
A
- also referred to as statute or legislation
- acts or parliament/provincial acts/municipal acts
- legislation published in government gazette
2
Q
Finding an act of parliament
A
- Volume 1 of Jutas statutes of South Africa is the index
- alphabetical list of titles, subject list (keywords or subject of title is used), chronological list of acts (no. of act and it’s year of publication are used)
- JUTASTAT, google, SA legal info institute, SA gov index
3
Q
Reading an act of parliament
A
-look at text, context of act, certain presumptions
4
Q
Text
A
- signed text: must be signed by president after parliament approved before published
- short title: name, year
- long title: printed in bold under the word act, explains purpose of the act
- preamble: after long title, introductory statement that explains purpose and underlying philosophy
- table of contents: after preamble
- chapter 1: definitions
- acts divided into sections, subsections, paragraphs and sub paragraphs S 4(1)(a)(i)
- no comma between name and number
5
Q
Context
A
- when interpreting an act the court must take cognizance of the spirit, purport and objects of the bill of rights
- the courts sometimes recognize external circumstances in explaining the reason the act came into being
- they will investigate reason why the act was necessary
- consider socio-economic, political or historical milieu in which act was formed
6
Q
Presumptions
A
- presumed to not have meaningless sections
- presumed not to change existing laws unless it states so explicitly
- presumed that legislation does not intend unreasonable circumstances
- presumed to apply to future events only and not act retrospectively
7
Q
How to read a court case
A
- using case reference: vs BPK 1988 (1) SA 220, find case in volume (1) of the South African law reports on page 220
- using names of parties: if you have name of one or both parties, you can fine case reference by consulting the indexes of the court cases
- using a specific topic in the subject indexes: the JUTASTAT also shows a list of cases that have the keywords of subject like for you to type in
8
Q
How to read a court case (case name)
A
- any reference to a particular case will always start with the name of that case
- criminal case: s/r (state or Rex) v accused
- civil case: plaintiff v defendant/ appellant v respondent (SCA:Supreme Court of appeal) started by summons, bc fundamental difference in facts
- civil case: ex parte applicant and/or respondent (name of person bringing application appears first) started by notice of motion, bc no fundamental difference in facts
9
Q
Year and volume
A
- books or bundles in which publishers report cases every year
- books are called law reports
10
Q
Series of law reports
A
- law reports identified by abbreviations of the different names
- abbreviations appear after the date and volume of the report
- SACR: South African Criminal law reports
- SA: South African law reports
- CLR: commercial law reports
- SALLR: South African labor law reports
- BCLR: butterworths constitutional law reports
- not all civil and criminal reported, no magistrates reported, only certain higher courts reported, all constitutional reported
11
Q
The page where the report starts
A
-v 1993 (1) 160 (T): case started in pg 160
12
Q
The court where the case was decided
A
- case reference indicates name of court where decision was given
- indicated by abbreviation
- letters appearing after page number where case report begins is the name of court
- (T): Transvaal provincial division (T) of the high court
- SCA: Supreme Court of appeal
- (E): the eastern cape provincial division of the high court
- CC/KH: constitutional court Johannesburg
- SKA/HHA: Supreme Court of appeal Bloemfontein
- 13 high courts, 9 main seats of division
13
Q
Structure of a reported decision
A
- judges names: appear under the name of the court where matter was heard
- date on which case was heard: appears under name of judge
- catch phrases(fly notes): most important points with which the judge is concerned, given in point form and separated by dashes
- head notes: written by editor of the law reports, is a summary of the case, includes all aspects of case that the editor considers to be important
- legal representatives: appear after headnote
- summary of heads of argument: summary of arguments and authorities that the lawyers presented to the court
- date on which judgement us given: “cur adv vult” judgment given in different day to court date, after “postea” the date will appear
- judgement: given to indicate which judge gave the judgment if more than one judge heard the case
- order of the court: “in the result I would like to make the following order”
- order as to costs: disbursements paid as agreed (parties must come to agreement, if not they get a cost assessment, orders as to costs
- attorneys: names of attorneys if lattices involved appear after judgement
- letters of alphabet:along side of every page, reference tool to help refer to specific parts of judgement
14
Q
Majority judgment
A
- majority of judges gave same judgment based on the same reasons
- one judge gave judgement and others concur with it
15
Q
Minority judgment
A
- judge disagrees with the majority and reaches different conclusion
- does not establish a precedent
- can have persuasive forces in future
