Module 7

Question 1

What is a legal argument?

Answer 1

A legal argument is where lawyers find and formulate an answer to legal problems

Question 2

What are two things a legal argument has?

Answer 2

Legal arguments are based on premise (what happened) and conclusions (the evidence and what should happen based on this evidence)

Question 3

What is an induction technique?

Answer 3

An induction is a technique of arguing where a general conclusion is drawn from facts and a truth from specific observations.

Question 4

What are the different conclusion of inductions?

Answer 4

Inadequate facts give invalid conclusions, conclusions should be based on facts.

Question 5

What are the induction factual findings by the court?

Answer 5

• Credibility - this can be by specific observations
• Presumptions - this is rebuttable based on evidence to the contrary or can help prove the facts
• Judicial notice - these are facts that are known without further evidence. They cannot be based on individual and personal experience

Question 6

What is the circumstantial evidence in inductions?

Answer 6

The use of circumstantial evidence in induction is important. This is based on inference rules, highlighted in R v Blom case

Question 7

What is the Inference rules highlighted in R v Blom case?

Answer 7

• Consistent with proven facts, if not its false
• Must exclude every reasonable inference except for the one drawn

Question 8

What is the Res ipsa loquitur doctrine?

Answer 8

The Res ipsa loquitur doctrine based on common law that states the matter speaks for itself and is an inference based on common sense which are sufficient to support an inference that a defendant is negligent and doesn’t need to evidence. Legal rules may be inferred through an inductive process.

Question 9

What is a deduction?

Answer 9

A deduction is a general statement that is applied to specific circumstances to arrive at a conclusion. There are generic statements that are based on primary hypotheses or premise that are true

Question 10

What is a legal opinion of an issue based on?

Answer 10

A legal opinion on any issue is based on authority such as legislation, a previously decided case or the opinion of n expert. Authority is used to bolster an argument or to support point of view.

Question 11

What are the three fallacies of arguments?

Answer 11

• In ordinary meanings- Manipulation of words
• Emotive meaning - emotional connotation of a word is used in order to argue or convince
• Rhetorical language - rhetoric is the use of language to move or persuade readers or listeners to a specific decisions, judgement or action

Question 12

What is a fallacies of argument?

Answer 12

Fallacies of argument are uses of syntax or word to form legal arguments

Question 13

What are the uses of language in argument?

Answer 13

• Hominem arguments- shift away from the issue to be argued to the person arguing
• Boundaryless argument- an attempt to avoid addressing an issue
• Extreme alternatives- reforming an issue as a stark choice between two extreme alternative
• Circular arguments- based on an argument where the conclusion is already contained in the starting point.
• Non sequitur arguments- a conclusion is portrayed as the necessary consequence of one event or statement when it is not the case

Question 14

What is the use of policy consideration in a legal argument?

Answer 14

In legal arguments their is policy considerations when many SA cases were based on policy considerations to reach a legal conclusion or even advance a legal argument. Sometimes logic is substituted with a choice between opposing policy considerations or value judgements.

Question 15

Was was the issue in the Pillay case?

Answer 15

Whether the discrimination of Ms Pillay flows from the Code or from the decision of the school to refuse the exemption

Question 16

What are the primary principles in the pillay case

Answer 16

• Ms Pillay’s primary case was based on equality and wished to assert the rights to freedom, expression and religion as independent claims
• Section 8(3) of the South African Schools Act empowers the minister to make the guidelines and states that they are for the consideration of schools and that the section on religious and cultural diversity is solely to assist schools in determining their uniform policy the only requirement is that the policy should be line with the guidelines
• Unfair discrimination by the state and private parties including the grounds of religion and culture prohibited by section 9(3) and (4) of the Constitution is considered
• The Equality Act is legislation contemplated in section 9(4) with section 6 of the Act reiterating the constitution. Section 1 of the Equality Act defines discrimination.
• Section 39(2) of the Constitution makes it clear the Act should be interpreted in light of the constitution which includes section 9.
• In the Ferreiara v Levine case judge Ackerman stated human dignity has little value without freedom, because without freedom it is a little more than an abstraction. Freedom and dignity are linked and to deny people their freedom is to deny them their dignity
• In the Fourie cases the court held that the acknowledgement and acceptance of difference is particularly important in our country where for centuries group membership based on biological characteristics has been the basis of advantages and disadvantages
• Section 14(2)(a) of the Equality Act tracks section 9(5) of the constitution and section 14 of the Equality Act deals with the determination of unfairness
• In the Christian Education case states believers cannot claim an automatic right to be exempted from laws however where reasonable the state should seek to avoid putting believers in choices of either being true to their religion or respectful of the law.

Question 17

What is the application in the pillay case?

Answer 17

• The High Court rejected the argument that since the code was signed that Sunali waived her right to insist to wear the stud
• A properly drafted code should set out realistic boundaries and provide procedures for granting exemptions. The claims brought under the Equality Act must be considered within the four corners of the Act. As long as the Act doesn’t infringe another right or decrease the protection afforded by section 9 a difference between the Act and section 9 does not violate the constitution
• Religion is ordinarily concerned with personal faith and belief while culture generally relates to transitions and beliefs developed in a community, these two concepts do overlap. Sunali is part of the recognised South Indian, Tamil Hindu groups. Cultural identity is an important part of a person’s identity because it flows from being in a community and not from personal choice or achievement.
• The Equality Act recognises making reasonable accommodation for designated groups as an affirmative action measure. Reasonable accommodation is an exercise in proportionality that will depend intimately on the facts. Reasonable accommodation is most appropriate where discrimination arises from a rule or practice that is seen as neutral and serves a valuable purpose but is marginalising a certain portion of society and the principle is particularly appropriate in specific localised contexts.

Question 18

What is the conclusion in the pillay case?

Answer 18

• The nose stud is a voluntary expression of both religion and culture. The protection of voluntary practices applies equally to culture and religion
• It is found that Sunali was discriminated against on the basis of religion and culture in terms of section 6 of the equality act. The practice of Sunali is once the stud had been inserted she must never remove it and preventing her from wearing it is a significant infringement on her religious and cultural identity
• reasonable accommodation would have been made by allowing Sunali to wear the stud, the court therefore confirms the High court’s finding of unfair discrimination.
• This ruling doesn’t abolish school uniforms; it only requires that schools make exceptions for sincerely religious and cultural beliefs and practices, there shouldn’t be a blanket distinction between religion and culture.
• The code coupled with the decision to refuse exemption is discriminatory. It is also ordered that the Schools Governing Body amend the Code to provide reasonable accommodation for deviations on religious and cultural grounds and a procedure for the application and granting of those exemptions

Question 19

What is the minor application in the pillay case?

Answer 19

• Our constitution recognises the difference between culture and religion and that they shouldn’t always be treated as the same. Religion is dealt without mention of culture in section 15, this exclusion suggests a difference. The inclusion of culture in section 30 and 31 makes it clear that culture involves associative practices and not individual beliefs.
• A religious belief can be entirely personal. A cultural practice is not about personal belief but about a practice pursued by individuals within a community. Where one is dealing with associative religious practices such as protected by section 31 then religion and culture will be treated similarly.
• Our constitution approach to the rights to culture emphasis four things: cultural rights are associative practices; an approach to cultural rights in our Constitution must be based on the value of human dignity; cultural rights are protected in our Constitution in the light of a clear constitutional purpose to establish unity and solidarity amongst all who live in our diverse society; and solidarity is not best achieved by simple toleration arising from a subjectively asserted practice

Question 20

What is the purpose of retributive theory?

Answer 20

Retributive Theory – restores legal balance that has been disturbed by commission of the crime

Question 21

What are the four relative theories of punishment?

Answer 21

• Preventive Theory – the prevention of crime. According to this theory, the guilty is punished to prevent him from being capable of committing the crime again.
• Individual Deterrence – means that offender as an individual is deterred from commission of further crimes.
• General Deterrence – the whole community is deterred from committing crimes, effect of punishment on society in general. Members of the society will refrain from engaging in criminal conduct
• Reformative Theory – purpose is to reform the offender as a person so they can become law-abiding citizens of their community.

Question 22

Define reasonable accommodation

Answer 22

It is an adjustment to not impose a burden on someone else and therefore ensuring equal enjoyment of rights