Legal Research Skillsfor legal practice

Elizabeth Mollelizabeth.moll@uct.ac.za

021 650 5691

Anthea Paulsenanthea.paulsen@uct.ac.za

021 650 1261

                      This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.

Research Process for Practical Problems

Client’s problem

• What the client wants from you

• Are there existing documents eg. Court orders?

Field of law

•Which subject area does it fall in? Is it more than one?

•Find cases and legislation on your problem•Any legal principles that apply?

Determine the applicable legal

principles

• Consult your cases and legislationDrafting of

pleadings

Example Problem

Grace Kelly parked her car on the 16 December 2014 outside a friends home, 54 Love Street, Mitchells Plain. She loves her green mini registration number 123KELLY. As she was about to leave she heard a loud noise and ran outside. A police officer, while on duty driving a police vehicle, had knocked into her car while reversing. The reasonable and fair cost to repair her damaged vehicle is R14 600. She approaches you for assistance.

Where to start?

• What does the client want?– Damages paid for car

• Field?– Delict: Claim for damages to movable property– Who is she claiming from?

• Employee while on duty = employer = SAPS– Look at type of liability: vicarious?

• Legal principles?– Delictual claim for damages– Vicarious liability applies

Researching your field

• Narrow down to some specific topics in your field if possible: eg. Vicarious liability

• Authority sources: cases and legislation!– You can search for these by topic if you know it!

• Helpful sources: academic writings eg. Textbooks– Can often show you exactly where to look and the

precedents that have already been set– Don’t rely only on these – check up to make sure it

applies!

Using a textbook

• Our problem: law of delict– Loubser and Midgley (eds.) The Law of Delict in

South Africa. Cape Town: OUP. 2012– This has a specific chapter devoted to vicarious

liability – start there!

Databases for research within your field

• LexisNexis SA– Use to find cases and legislation that can help you– Use to access forms and precedents

• Juta– Use to find cases and legislation that can help you

• Sabinet Legal– Use to find legislation and policy documents that can help

you• SAFLII

– Use to find cases that can help you

Finding Primary Sources:Cases and Legislation

• Case law:– Use databases like LexisNexis, Juta and SAFLII– Note the case citation:

• Legislation:– Use databases like Sabinet, Juta, LexisNexis and SAFLII

Act Name Act Number Of Act Year

Water Act 36 of 1998

LexisNexis SA

4 types of ‘focus’ searches:ADVANCED – searches across everythingLAW REPORT – specific case searchLEGISLATION – specific Acts searchGAZETTES ONLINE – specific Government Gazette search

Can also browse through the contents

Now you can also prefilter for the type of document you want – this is not as effective as a law report search, but useful for a keyword search

Tick the box you want, then type your keywords into the red search box and click search

Using the ‘Law Reports’ search for cases by keywords

Can filter your results by subject here so that you can get relevant cases with similar facts

You can also view the Acts referenced by cases to find relevant Acts

Using the ‘Legislation’ search for Acts

Once you have the Act name, you can then do an Act search using the Legislation search

If your authority doesn’t come up…

• Use the contents on the left hand side to find the legislation or case by year or title!

Not finding cases?Use the Indexer and Noter-up to the All South

African Cases!

You can look up either a specific subject or a specific Act to see which cases deal with either your subject or your Act

For example – if we were to look up damages we would select ‘subject index’ and ‘D’ to find ‘damages’

It sets out a one-line about the case in alphabetical order and then a link to the case

Using Amler’s Precedence of Pleadings in LexisNexis

• Amler’s Precedents of Pleadings (LexisNexis SA)– Search by field of law / topic: there may be more

than one

You can click on the first letter of your topic eg. D for Damages

Each section gives a list of precedence as well as links to those cases

There can be more than one applicable section! In this case “vicarious liability” is also applicable

Using CiteIt to track case treatment

When you open a case, the legal citator (“CiteIt”) will pop open.

Here you can see the details of the judgment, subject analysis, judgment history, judgment treatment and more.

So you can check if its good precedent or not!

Click on judgment treatment:

Blue = neutralRed = negativeGreen = positiveYellow = cautionaryWhite circle = no analysisBlack circle = conflicting analysis

Juta

Use the dropdown to choose your search

Can also browse here

Different search forms:ADVANCED – searches everythingBOOLEAN – allows you to search using Boolean operatorsACTS – searches national legislationJOURNALS – searches for Journal articlesGOVERNMENT GAZETTES – searches Government GazettesLAW REPORTS – searches for casesPROVINCIAL LEGISLATION – searches specifically for provincial legislation

Using the ‘Law Reports’ search to search by keyword

You can search through cases’ flynotes and headnotes – similar to the LexisNexis keyword search

Can filter it here to only look at South African cases by ticking the relevant boxes

Using the advanced search to search by keywords

If you don’t know a specific Act / headnote search isn’t working and want to search in general use the Advanced search

Filter what you want to search here eg. Law Reports and Statutes

This will look for each word separately

This will look for this exact phrase

Using the case annotations to track a case’s treatment

When you open a case, click on ‘link to case annotations’

It will list what other cases did – you need to click on the links to open each case

Sabinet Legal

Can select and deselect sources here – check the subscription first

If it’s a phrase, tick “exact phrase”

Can filter by type and year

SAFLIIThis is a free access to law database – and it

contains documents from many different courts and tribunals. It is a very valuable

resource and easy to use!

Topic search for materials

Simply type in your topic search into the search box - use your search operators eg. AND, OR, NOT and “ “ for phrases

Your results will come up in terms of relevance to your keywords. The percentage number behind each items indicates how relevant it is to your topic

If you want to look for specific types eg. Cases, use the ‘by databases’ tab and it will show you how many documents in each courtClick on the document number to open the list

Using the advanced search to select specific databases

Select ‘advanced search’ below the search box – here you can select your specific court or database to search in

The search results come up in the same way

Browsing SAFLII by source

You can browse what SAFLII has by selecting ‘South Africa’ and then selecting the database you want to browse

Once in your database, browse by year or title

Using LawCite to track case treatment

Select LawCite on the case you want to viewAlternatively go to LawCite.org and search for the case there

It shows all the cases that have referred to this case – not only in South Africa, but also elsewhere that has a Legal Information Institute – you can click on each heading to arrange the results by that heading

Nature of proceedings: jurisdiction and precedents

• Consult your cases and legislation: any specific principles that govern your problem? Any similar cases?– In certain cases textbooks are helpful in identifying

the elements you need to show• Decide on your jurisdiction

Finding Secondary Sources:Books, Journals, Commentaries

• Use the Aleph Catalogue to find books

• Use the e-journal portal to find specific journals

• Use HeinOnline and SA ePublications to search for articles

• Use OpenUCT to find theses as well as publications from the law faculty staff

Aleph• UCT Catalogue of books, journals that are in the library

• Note down the shelf number of an item!– You need this to find the book on the shelf

• Different Law Library locations– Law Library Reserve = Short Loan centre behind loans desk– Law Library Open Shelves = Normal loan on Level 1 of library– Law Library Reference Section = Not for loan, on Level 2– Law Library Leisure Collection = 7 day loan, on Level 2

• Let’s look for the following book:Wille’s principles of South African law./ Francois du Bois... [et al.] -- Cape Town : Juta, 2007.

Finding Booksusing the UCT Catalogue

• The UCT Catalogue contains a list of all the books, e-books, dvds and other materials in all the UCT Libraries.

• Let’s look for the following book:Wille’s principles of South African law./ Francois du Bois... [et al.] -- Cape Town : Juta, 2007.

If there aren’t many results, your result screen will show you this

If there are more than a few results, then your results screen will look like this:

Finding Journals / Journal Articles

Article Citation Format:Author Title (Year) Volume Journal Title Starting PageEg.Kok, A. Is Law able to Transform Society (2010) 127 SALJ 59

To find what ‘SALJ’ means – use Cardiff Index

Cardiff Index to Legal Abbreviations

E-Journal Portal

ProblemsProblem 1: Problem 2:

A and B were married in community of property on 1 January 1989. They bought an immovable property in 1990. Three children were born of the marriage. On 13 June 2006 A and B divorced in Wynberg Court and the divorce order states there must be a division of the joint estate. B wants nothing to do with A and approaches you in 2015 to claim her half share in the property, furniture, pensions fund and the return of a diamond ring that she inherited that is stored in A’s family safe.

Two brothers co-own a plot which consists of two properties each with separate addresses. Your client used to live in the one property, while the other property was rented out by his brother. He received a portion of the rent. However, the relationship broke down and your client moved out and bought a small property. The other property was sold to the younger brother. Your client no longer receives a share of the rent. The matter of arrears rental has gone to trial and absolution from the instance was granted.

Problem one:

• Field of Law

• In this case – is prescription an issue?– Need to consult the Divorce Order to see the

settlement• Helpful books:

– Barratt, A. (ed.) Law of Persons and the Family. Cape Town : Pearson Education South Africa, 2012

Private Law

Family Law

Matrimonial Property Law

Problem one: suggested authorities

• Legislation:– Divorce Act 70 of 1979

• Claim for half of assets:– Legal principle: Marriage in community of property has

an equal division of the joint estate at divorce• Case Law:

– Inheritance excluded from joint estate:• Erasmus v Erasmus 1942 AD 265

– Pension fund case:• Ex parte Randles: In re King v King [1998] 2 All SA 412 (D)

Problem one: suggested authorities

• Amler’s Precedents:– Divorce

• Forms and precedents:– Marriage and Settlement Contracts

Problem two:

• Field of Law

• The previous judgment is needed – why the absolution from the instance.

• Co-ownership rules: rights with regards to sale should be looked at

Private Law

Property Law

OwnershipSale

Problem two:

• Helpful books:– Mostert & Pope (eds.) 2010. The Principles of the

Law of Property. Cape Town: OUP– Bradfield & Lehmann. Principles of the Law of Sale

and Lease. Cape Town: Juta– Van der Merwe, C.G. Things in Law of South Africa

Volume 27 2nd Edition.

Problem two: suggested authorities

• Legislation:– Deeds Registries Act– Alienation of Land Act 68 of 1981

• Case Law– Claim for rent by co-owner:

• Pretorius v Botha [1961] 4 All SA 318– Sale of property:

• Drummond v Dreyer [1954] 1 All SA 146 (N)

Problem two: suggested authorities

• Amler’s Precedents:– Ownership– Vindication– Sale

More ProblemsProblem 3: Problem 4:

Client X wishes to change her sex via gender realignment. What services are there in the western cape and after the process which she thinks may take a few years, would she be able to change her sex on her birth certificate. Please advise.

Thomas, your client, quotes for the painting of Mrs Conradie’s house. Mrs Conradie accepts the offer and signs the quote. Thomas indicates that he will first finish the paint job and that Mrs Conradie can settle the full amount outstanding afterwards. On completion of the job, Mrs Conradie refuses to pay Thomas, saying that he had done a bad job. Thomas argues that he did exactly what they agreed to and that Mrs Conradie is trying to enrich herself at his expense.

Problem three:

• Field of Law

• The question as to whether there are such services in the Western Cape is not a legal one – it is a medical one

• Helpful books:– Barratt, A. (ed.) Law of Persons and the Family. Cape Town :

Pearson Education South Africa, 2012

Private Law

Law of Persons

Sex and Gender

Problem three: suggested authorities

• Legislation:– Alteration of Sex Description and Sex Status Act 49

of 2003

• Application to change sex on birth certificate:– Department of Home Affairs sets out the

guidelines in terms of the above act and have a specific form for this purpose (Form BI-526)

Problem four:

• Field of Law

• Look at the type of breach by the other party in order to determine the applicable remedy.

• Helpful books:– Hutchison, D. (ed.) The Law of Contract in South

Africa. 2nd ed. Cape Town : Oxford University Press South Africa, 2012

Private Law

Contract Law

Breach of contract

and remedies

Problem four: suggested authorities

• Legislation:– Contract law and its remedies are grounded in Common

Law (Roman-Dutch Law)

• Case Law– Requirements for an order of Specific Performance:

• Farmers’ Co-operative Society (Reg) v Berry 1912 AD 343

• Amler’s Precedents:– Contract: Specific performance

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Research Assistance• Use the Library’s Virtual Reference Service at:

www.law.lib.uct.ac.za

• Email uselizabeth.moll@uct.ac.za ORanthea.paulsen@uct.ac.za

• Call us (021) 650-1261 (Anthea) (021) 650-5691(Elizabeth)

• Set up an appointment with us for a consultation• Visit us in the Library! – Level 2, Kramer Building, Middle

Campus

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Thank you!