LEGAL THEORY 1

2015

FOUNDATIONS OF LAW

AND

INTRODUCTION TO THE STUDY OF LAW

1. INTRODUCTION

1.1 Overview

Legal Theory is a three-year major subject in the BA, B SocSci, BCom, B BusSci and BSc
curricula. It involves the study of key fields of South African Law in the reality of public and
private law, and thus forms an important stepping stone towards the LLB degree. Legal
Theory is allowed as a credit for degrees in the Faculties of Humanities, Commerce and
Science. Credits in Legal Theory courses exempt a candidate from the equivalent courses
in the LLB curricula. Please refer to the Rhodes University Calendar for more information.

On completion of the course the student should be able to assess and decide whether or
not to continue with legal studies as well as to plan the appropriate academic route and
cope with a more detailed study of legal topics.

 To provide insight into the nature and function of law

 To provide an overview of the various systems of law around the world
 To understand the hybrid nature of the South African legal system
 To introduce students to the basic principles of a human rights regime
 To provide an overview of the structure of the courts and the procedures which are
followed in the courts
 To provide a brief overview of the law of contract, delict (wrongs) and criminal law
 To familiarise students with legal concepts and terminology
 To introduce students to the nature of legal reasoning
 To assist students in extracting principles from law reports and other source material

Each of the two components of Legal Theory 1 (i.e. Foundations of Law and Introduction
to the Study of Law) can constitute a stand-alone course.

1.2 Credit Value [30]

This is calculated on the basis of 300 “notional hours” that a student would spend in
lectures, tutorials, seminars, mock trials, court visits, learning for tests/exams etc over the
year which translates into 11½ hours per week.

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1.3 Assumptions of Prior Learning

 The student must have met the entrance requirements for the university and be able to
communicate in written and spoken English at an NQF level 4 standard.

 The student must also be able to work/study independently and be capable of working
in groups.

 The student must have basic computer literacy skills.

2. OUTCOMES

2.1 Critical Outcomes

Students will be able to:

a) identify and solve problems

b) work in a team
c) organise and manage themselves
d) collect, analyse and evaluate information
e) communicate effectively
f) recognise problem solving contexts
g) participate as a responsible citizen
h) explore education and career opportunities

2.2 Specific Intended Outcomes

The Legal Theory 1 course is designed so that students successfully completing this
course should be able to achieve the following outcomes:

FOUNDATIONS OF LAW (Taught in the first semester)

1.) Outline and explain the different forms of dispute resolution in South African Law
2.) Describe and explain the structure and officers of the South African courts
3.) Provide an outline of criminal and civil procedure in South Africa
4.) Explain the sources of the modern South African legal system
5.) Describe and use the conventions of legal communication.

INTRODUCTION TO THE STUDY OF LAW (Taught in the second semester)

1.) Describe and explain the nature and purpose of law

2.) Understand legal concepts and terminology
3.) Describe the nature and purpose of rights and duties in law
4.) Provide an outline of some of the legal systems of the world
5.) Describe the divisions of law.

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6.) Provide an outline of selected branches of public and private law (criminal law,
contract and delict or law of wrongs).
7.) Demonstrate an ability to apply legal principles and case law to selected factual
situations.

3. TEACHING METHODS

Lectures will be delivered using a combination of teaching styles which include the
Socratic and semi-Socratic methods, using practical questions and real life cases and
examples as a basis for explaining concepts. PowerPoint slides, overhead
transparencies, case studies and supplementary material may be supplied.

Students are expected to assume responsibility for their learning by reading ahead of the
lecture and consolidating afterwards. Therefore the extent of your learning and knowledge
at the end of the course will depend on the effort you put into the course.

4. COURSE/MODULE CONTENT

FOUNDATIONS OF LAW

 Forms of dispute resolution

o ADR
o Litigation: structure and officers of the Courts
 An outline of criminal and civil procedure
 Sources of the modern South African legal system

INTRODUCTION TO THE STUDY OF LAW

 An introduction to the nature and purpose of law

 An introduction to the nature and purpose of rights and duties
 An outline of the legal systems of the world
 Divisions of law and an outline of selected branches of public and private law
[criminal law, contract, delict (wrongs)]

5. RESOURCES

Note: Students are also strongly encouraged to use the short loan section of the
main library wherever possible for research assignments and tests.

Further reading is essential in a course of this type. Although there is no prescribed book,
the following books are highly recommended:

T Humby, (ed) et al Introduction to Law and Legal Skills in South Africa (2012), Oxford
University Press: Cape Town

HR Hahlo and E Kahn The South African Legal System and its Background (1985 reprint),
Juta & Co: Kenwyn.

D Kleyn and F Viljoen Beginners Guide for Law Students 4th edition, (2010) Juta & Co:
Kenwyn

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Meintjies – Van der Walt et al Introduction to South African Law: Fresh Perspectives 2nd
edition, (2011) Heineman: Cape Town

WJ Hosten et al Introduction to South African Law and Legal Theory 2nd edition, (1995)
Butterworths: Durban

Dale Hutchinson and Chris James-Pretorius The Law of Contract in South Africa (2009)
Oxford University Press: Cape Town

Max Loubser (ed) et al The Law of Delict in South Africa (2012) Oxford University Press:
Cape Town

CR Snyman, Criminal Law, 5th ed, (2008) Lexis Nexis: Durban

The lecturers will prescribe reading at the appropriate times and students are required to
supplement their notes from these (and other) books.

Students are strongly advised to spend time browsing through the books in the library.
There is a vast array of material and familiarity with the layout of the library will pay
dividends when research is undertaken for assignments.

Students will be supplied with a copy of the Constitution during the course of the first term
in their tutorials and the student’s account will be debited in the sum of R90.00.

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6. STUDENT ASSESSMENT

6.1 FOUNDATIONS OF LAW

Outcomes Assessment Criteria

(On successful completion of this course (What evidence must a student provide to show that
you will be able to) they are competent?) The student must be able to:

1. Outline and explain the different forms of 1. Distinguish between the different forms of dispute
dispute resolution in South African law. resolution.
2. Explain in relation to each of the forms of dispute
(a) Alternative Dispute Resolution resolution, what structures and officers are
involved. See Foundations Handout for details.
(b) Litigation: Structure and officers
of the Courts. 1. Classify a particular factual situation as criminal or
civil matter and decide the appropriate forum and
procedure for obtaining a remedy or enforcing a
right.
[See Foundations of Law B General Handout for
details.]
2. Explain the sources of the modern 1. Describe the basic values which underpin our legal
South African legal system. system and practice of law.
3. Describe and use the conventions of 1. Access reference works and cases in the law
legal communication to access and library
communicate information. 2. Extract the appropriate legal rules from source
material
3. Read a case, extract and apply the principles
contained in it
4. Write a case-note at an elementary level
5. Communicate legal issues verbally and in writing in
the correct manner
6. Reference correctly and accurately according to
basic referencing principles.

6.2 INTRODUCTION TO THE STUDY OF LAW

Outcomes Assessment Criteria

(On successful completion of this course (What evidence must a student provide to show that
you will be able to) they are competent?) The student must be able to:

1. Describe and explain the nature and 1. Identify, analyse, extract and apply basic legal
purpose of law principles to a simple set of facts.

2. Understand legal concepts and 1. Use of appropriate legal language to demonstrate

terminology. conceptual understanding.

3. Describe the nature and purpose of 1. Distinguish the nature of rights and duties and
rights and duties in law. provide an elementary explanation to a lay person.

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 Outcomes Assessment Criteria

(On successful completion of this course (What evidence must a student provide to show that
you will be able to) they are competent?) The student must be able to:

4. Demonstrate an understanding of the 1. Undertake a basic comparative analysis and apply

importance of comparative legal studies basic comparative methods.
and be able to discuss and compare the
major legal systems of the world

5. Describe the divisions of law. 1. Classify and distinguish private and public law.

6. Provide an outline of selected branches 1. Classify factual situations according to the various
of public and private law (criminal law, branches of the law and to distinguish between a
contract and delict). crime, a delict and a contract.

2. Decide the appropriate forum and procedure for

obtaining a remedy or enforcing a right.

7. Demonstrate an ability to apply legal 1. Apply the applicable law to the relevant facts and
principles and case law to selected provide appropriate legal remedy.
factual situations

EXAMINATIONS

Examinations are compulsory.

 One three-hour paper will be written in June and the paper will be divided into two
equal sections. Section A (50 marks) will be marked by Mrs Davies, while Section
B (50 marks) will be marked by Dr R Krüger, Ms T Waterworth and Mrs L Niesing.
The June paper will examine the work covered in the Foundations of Law course.
 One three-hour paper will be written in November and the paper will be divided into
two equal sections. Section A (50 marks) will be marked by Prof E Nwauche / Ms T
Waterworth while section B (50 marks) will be marked by Mrs E Davies and a
lecturer to be appointed. The November paper will examine the work covered in the
Introduction to the Study of Law course.
 A credit (CR) will be given if a candidate has passed both Foundations of Law and
Introduction to Law irrespective of the year or examination in which they were
passed.
 An aggregated credit (ACR) will be given if the candidate has an aggregated mark
of at least 50% for Foundations of Law and Introduction to Law (i.e. 100 or more out
of 200) and has obtained at least 30% in the course failed.
 To achieve an NCR a student must (i) have an aggregated mark of at least 50% for
all component courses and (ii) must sit the examination for every component course
(i.e. 100 or more out of 200).
 Aggregation may take place only in respect of examinations written in the same
academic year. (Note: for this purpose a supplementary or aegrotat examination in
January/February of the following calendar year counts as an examination in the
previous year.)
 After the completion of the November examinations, the Dean of Law may
recommend to the Deans of Humanities, Commerce and Science that a student
with an overall aggregation average of 49% be raised to 50% to enable the student
to pass with an ACR or NCR or to qualify for a supplementary examination in terms
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 of paragraph 2.4 below. Overall aggregation averages below 49% (i.e. less than 98
out of 200) will NOT be rounded up to 50% for this purpose.

If students wish to challenge the marks of the course work component, it must be done by
the first Friday of the first and third terms in respect of June and November exams
respectively.

Students who wish to be admitted to LLB 2 (the four-year LLB) must have at least 65% in
Legal Theory 1 as well as an overall average of 65% for three non-law courses studied in
that year. Students who do not meet these criteria must follow the five-year route.

Should students wish to review their exam scripts, the students must produce a copy of
their academic transcript which reflects that their fees are up-to-date and make an
appointment with the lecturer concerned.

For further information regarding supplementary examinations, please refer to the Law
Faculty’s Survival Guide.

TESTS

There will be FOUR tests during the year i.e. two per semester course. Tests will be
written on the following dates:

Thursday 12 March 2015 at 7pm, Great Hall

Wednesday 29 April 2015 at 7pm, Great Hall

Tuesday 18 August 2015 at 7pm, Great Hall

Thursday 15 October 2015 at 7pm, Great Hall

Tests are compulsory and should be taken seriously. Tests assist borderline students and
consolidate knowledge, making it easier to learn for the examinations. The marks for the
four tests together with the tutorial assignment marks count towards a student’s class
record. The class record constitutes 30% of the final mark.

There will only be a make-up test for those students with a valid LOA (Leave of Absence).

Note: Weak tests and poorly researched essays will count against you and
adversely affect your overall results.

STUDENTS ARE REQUIRED TO IDENTIFY THEMSELVES AT ALL TESTS BY

PRODUCING A VALID STUDENT CARD.

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7. EVALUATION

The courses will be evaluated at regular intervals by way of student evaluations, teaching
evaluations and peer evaluations of the staff lecturing the course conducted by other Law
Faculty members and by external examiners/moderator’s comments and reports on
examination papers and the students’ scripts.

Oral report backs will be given to students in class indicating problem areas, difficulties,
suggestions, etc and what action can be taken, if necessary.

8. TUTORIALS

The class will be divided into groups for tutorial purposes. No permanent change of group
may be made without the approval of Mrs Davies. Should a student miss a scheduled
tutorial this must be made up by arrangement with Mrs Davies. Where students make up
a tutorial, the onus is on the student to ensure his/her attendance is noted at the tutorial
attended. The tutorial programme will be announced later. Do not report for any tutorials
before being told to do so.

YOU ARE REQUIRED TO ATTEND 100% OF YOUR TUTORIALS UNLESS YOU HAVE
A VALID LEAVE OF ABSENCE, FAILING WHICH STEPS MAY BE TAKEN AGAINST
YOU FOR THE REMOVAL OF YOUR DP.

The tutorial programme forms part of the academic development component of

Foundations of Law and Introduction to the Study of Law (See Annexure). The tutorial
sessions will be led by tutors or graduate assistants in the Law Department and will usually
cover topics to be dealt with in assignments. Students will be required to prepare written
work (Tutorial Assignments) comprising no more than 1 500 words and not less than 1 000
words (excluding footnotes). If the essay does not meet this minimum requirement, the
mark will be 0%. There will be SIX Tutorial Assignments as well as additional class work
during the course of the year and the topics will be prescribed well before the due date.
Assessment criteria and marking grids/guides will be given to the tutors and are to be
attached by the students to their assignments when handed in. Your assignment must be
accompanied by a cover page which you can find by doing the following:

Log on computer
Click on Start
Click on Run
Type in \\jackal\user\home\dept\lawr
Open essay cover. Print out!

Tutorial Assignments also count towards the class record which constitutes 30% of the
final mark.

Tutorial assignments are due at 12h30pm on the due date (See attached “important
dates”). They are to be posted in your tutor’s box opposite the Law Library. NO
INFORMAL EXTENSIONS (i.e. extensions not supported by a formal Leave of Absence)
WILL BE GRANTED FOR ANY REASON WHATSOEVER. This includes computers
crashed at 12h29 and similar excuses. Any late essays will attract a penalty of 20% per
day. If a student has a valid LOA for the date of submission of the assignment, the
students’ deadline shall be 24 hours after the LOA has expired. Under no circumstances

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may Tutorial Assignments be faxed or e-mailed to the tutor concerned. Any extensions for
an assignment may ONLY be granted by the course co-ordinator, Mrs Davies.

Preparation for tutorial discussions and 100% attendance at tutorials are compulsory. A
register will be kept by the tutors and students who fail to hand in a Tutorial Assignment on
time or who miss a tutorial without a valid excuse may be refused a DP certificate.

NOTE: Plagiarism, cheating or assisting a student in any test, tutorial assignment,

essay or examination will result in disciplinary action being taken by the
University against the student concerned.

9. SUPPLEMENTAL INSTRUCTION

Supplemental instruction (SI) is a free, voluntary, student-driven programme to support

courses which have a reputation for being demanding. SI enables students to master
course content while developing effective learning and study strategies.

SI is available to all students and statistics show that students who regularly attend SI
sessions tend to get better results than those who do not, irrespective of whether or not
they are at the top or the bottom of the ability range.

More details about SI will be given later.

10. THE LAW LIBRARY

Only students who have signed the required registration form will be allowed to borrow
books from the library. Student cards must be produced in order to borrow a book. As a
general rule, books may not be taken away from the library by Legal Theory 1 students.
Senior law students have reserved desks in the library. A room in the library has been set
aside for use by undergraduate students and students are free to use the desks in that
room.

If you are unsure about anything in the library, ask the person on duty. He/she is
paid to listen to you and to help you.

SHORT LOAN is a reserved collection of textbooks, recommended books, journals and

photocopied notes set aside by lecturers. This ensures that essential reading material is
available to students. You need your student card in order to take out items from the Short
Loan section.

All items are listed on OPAC and alphabetically in the Short Loan List, a booklet on the
circulation counter. Photocopied files are listed at the back of the catalogue.

 Ask the library assistant to fetch the item for you.

 A maximum of 2 items may be taken at a time.
 A book or notes may be taken for an hour only.
 Items in high demand may be restricted to shorter periods of time, as specified by
the Librarian

Fines are charged for late returns of Short Loan items and further penalties may be
imposed on those who keep items for long periods. Students who owe unpaid fines will

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not be permitted to make use of any Short Loan material. Fines for overdue Short Loan
items are R2.00 per hour.

A compulsory library tutorial will be held during the first term to familiarise students with the
Law Library. Further details will be given to students at the appropriate time.

11. DP CERTIFICATES (DULY PERFORMED CERTIFICATES)

The RU General Regulations read inter alia as follows:

“Subject to any exceptions approved by Senate, a student shall not be admitted to

an examination in any course unless the Head of the Department concerned has
certified that the student has satisfactorily attended the class meetings for the
course under examination, and has satisfactorily performed the work of the class.”

The “work of the class” is a broad term including lectures, tests, tutorial attendance, tutorial
assignments, court visits, written-work assigned by the tutors. Any other assignments or
work prescribed by a lecturer in Legal Theory 1 will also fall under this definition.

Students in Legal Theory 1 must comply with the DP requirements in respect of each
component of the course.

PLEASE NOTE:

 You are required to attend lectures. The Faculty of Law regards attendance at
lectures as an inherent part of the course, similar to obtaining a pass mark in an
exam. Your DP certificate will be at risk if you miss more than SIX lectures
regardless of whether you have L.O.A.s or not, unless there are exceptional
circumstances. You still need to apply for L.O.A.s at the Administrative office at the
Law Faculty in the usual manner because this may assist you in establishing that
exceptional circumstances exist.

 You are required to attend ALL your tutorials unless you have a valid LOA.

The decision to grant or refuse a DP Certificate will be made by Ms Brahmi Padayachi who
makes the decision after consulting the course lecturers. Should a student be aggrieved
by a decision, the proper procedure is to approach the Dean of the Faculty of Law.

Please note that NO warning letter will be sent advising you that your DP certificate will be
taken away.

For further information regarding DP’s please see the Law Faculty Survival Guide.

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12. ATTENDANCE REGISTER

IMPORTANT
In respect of Foundations of Law and Introduction to Law

If someone has signed on your behalf, you must bring it to the attention of your
lecturer without delay. Signing on behalf of another or failure to report a signature
which is not your own may result in disciplinary measures being taken against you.

The Law Faculty reserves the right to mark a student absent where the signature is
obviously false and could result in your losing your DP Certificate. You should
therefore take care to sign in a consistent fashion.

13. STAFF INVOLVED IN THE COURSE

Course Co-ordinator: Mrs E Davies

e.davies@ru.ac.za

Lecturers:

First Semester: Foundations of Law

Mrs E Davies
Dr R Krüger
Mrs L Niesing
Ms T Waterworth

Second Semester: Introduction to the Study of Law

Mrs E Davies
Prof E Nwauche
Ms T Waterworth

Tutorial Co-ordinator: Mrs E Davies

Academic development: Mrs E Davies

Graduate Assistants: Ms Diana Machingaidze g11m0635@campus.ru.ac.za

Mr Lloyd Chigowe g11c4383@campus.ru.ac.za

Please approach your lecturers if you have a problem with any aspect of the course.

Mrs Davies will assist with problems of an administrative nature e.g. leave of absence or
change of tutorials. Queries relating to the content of the course should be referred to the
relevant lecturer.

Prof Nwauche and Dr Kruger’s offices are on the first floor of the Law Faculty Building. Mrs
Davies and Ms Waterworth’s offices are on the top floor next to the staff reading room and
Ms Niesing’s office is on the top floor next to the Attic.
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14. LEGAL TERMS AND PHRASES

When reading legal material there are a number of words and phrases that are seldom
encountered in everyday language and which may not be familiar. Many of these terms
are in Latin and when used in your writing should be underlined if handwritten or typed in
italics. What follows is a list of those terms which you will probably encounter more
frequently than others during the course of this year. Please note that this is not an
exhaustive list and should you come across a term not included below you should consult
one of the dictionaries in the law library. A good reference for this purpose is:

RD Claassen Dictionary of Legal Words and Phrases (1997), Butterworths: Durban

a quo from which (the judgment of the court a quo means a judgment of
a court of the first instance i.e. the court before which the matter
was heard before it was brought to the present court).
ab initio from the beginning
absolution from the instance - an order made by a court when on the evidence it is unable
to give judgment for either party
ad idem of the same mind
affidavit a sworn statement made by a person in writing
appeal where a superior court reconsiders a matter decided by a lower
court
bona fide in good faith
causa cause
causal connection the relationship between a specific act and a particular result
cause of action the facts giving rise to a legal claim
cadit quaestio the question falls away
compos mentis sane
contra bonos mores contrary to good morals
consensus consent or agreement
contumelia insult
cur ad vult the court wishes to consider its decision
de bonis propriis out of his/her own pocket
de facto the factual position
de minimis non curat lex the law is not concerned with trivialities
de novo anew
ex facie on the face of it
ex lege by operation of law
ex parte as the only interested party
ex post facto seen in retrospect
genus class
in casu in this case
in esse existing
infra below
in re in the case of
interdict a court order which forbids someone to act in a certain way
in toto as a whole or in its entirety
inter alia amongst others
interim in the meantime
intra vires within the authority
iusta causa just cause
litis contestatio the moment when the suit is instituted between the parties
locus standi in iudicio capacity to litigate (i.e. the ability to sue or be sued in a court of
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 law)
mandamus (mandatory order) - court order compelling someone to do
something
mero motu spontaneously or of his/her own volition
nexus link
NO (nomine officii) in an official capacity
obiter dictum remark in passing
onus burden of proof
pactum agreement
per se in itself
postea afterwards
prima facie at first sight
qua as
quasi as if
ratio ground or reason
ratio decidendi reason for the decision
res thing
res ipsa loquitur it speaks for itself
res judicata the matter has been judged and the case is therefore closed
respondent the opposing party in an application or an appeal
viva voce orally
sine without
status quo ante the previous legal position
stare decisis decided cases remain authoritative
sub judice pending
sui generis of its own kind
supra above
ultra vires beyond the powers
voetstoots a term in a contract of sale whereby a seller sells and a
buyer purchases a thing "as it stands" with all its defects.

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