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There are lots of reasons why Legal Research is important. First, Legal Research helps you focus on the facts of the case, not to mention you can identify the point of law in the disputed issue. The research will also help prepare arguments that you can use in court and you will also need to lay down the evidence in that case, which is also backed up by research.
On top of that, Legal Research supplements the area of practice, since it backs up everything with credible sources, evidence, and even historical data. You get to have complete knowledge about the issue, and all of that information can be harnessed in a professional manner. Regardless of the complexity of the case, Legal Research will help you give complete answers, examine any statutes, and even ensure that all legal matters are handled accordingly.
It’s very important to focus on Legal Research if you want to solve any type of legal problem. While the process can be long and tedious at times, the truth is that proper research can help turn the odds in your favor in many cases.
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A source of law contains the rules and principles that form the law of a specific country. In our Law Library collection, you will find two broad categories of legal material namely primary and secondary materials/sources of law.
Illustration of The Classifications of South African Law
Meintjies-Van der Walt compares the law to a tree. Below is a simplified version of this tree:
L Meintjies-Van der Walt et al Introduction to South African Law 3 rd ed (2019).
Primary materials are the original sources of law that contain binding rules and principles. This means that if they are applicable a court must give effect to them unless they are overridden by a rule or principle found in a source with greater authority.
This hierarchy of authority is as follows:
The Constitution
A constitution is a piece of legislation that is the highest authority in the country. It sets out the rules on how a country should be governed and includes the civil rights of its citizens. All citizens, including the president, the legislature, and the courts, are subject to this supreme Constitution and cannot act contrary thereto. All laws and conduct are subordinate to the Constitution and will be unconstitutional and invalid if they are in conflict with the Constitution.
Common-Law
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. An example of common law is a rule that a judge made that says that people have a duty to read contracts.
Customary law
Customary law refers to social norms and practices that a certain community considers law. There are numerous different customary law systems in South Africa. The laws are not written down; they differ from place to place. It covers all matters regulating personal and family life including matters relating to children (such as care, contact, maintenance, guardianship, and initiation); marriage and the consequences of marriage (rights and responsibilities of spouses during and after the marriage); succession (who has a right to inherit and the administration of estates); land tenure and traditional leaders (who regulate family matters and disputes).
Legislation
Legislation is rules/law that is written down in a specific format. Firstly, a draft of a proposed law is prepared; this is called a “bill”. This bill then needs to be voted in by the legislative authority (passed) and signed by the president for it to become legislation. A piece of legislation is also called an act or a statute.
What does it mean when legislation is enacted? An act usually states when it will come into force. On that day, we say the act is enacted. This means that from that day the rules are written and that act becomes law.
Subordinate or Delegated Legislation – Are regulations made by government ministers for e.g. TV or Vehicle Licence. The provinces pass “provincial acts” and the municipality pass “local by-laws”.
Case Law/Law Reports
Law reports are a series of books that contain judicial opinions from a selection of case law decided by courts. Court cases are heard in courts by the judicial authority. One party institutes legal proceedings. The presiding officer (called the judge or the magistrate depending on which court you are in) will decide on the law and then resolve the factual dispute. This decision is known as a judgment.
Secondary sources of law, on the other hand, are not binding authority. They do however have persuasive value. They can therefore be used to inform a magistrate or judge’s decision. Secondary sources interpret the law.
The secondary sources of law in South Africa are:
Textbooks
Books are a very good source for starting your research on any topic as it will give you a broad overview of the subject.
Encyclopaedias
The best book to start your research is the legal encyclopedia known as LAWSA. Is kept up to date with monthly publications called CURRENT LAW. Current law is the most recent development of SA Law. Is very useful when you do research on South African law. Each subject entry is written by experts in their field and is arranged alphabetically by subject and each chapter covers a different topic.
Dictionaries
Why is a dictionary so important?
A dictionary is one of the most important tools during your time studying at a university. A good dictionary can help you understand your subject better, improve your communication, and improve your grades by making sure you are using words correctly.
Because if you do not understand the word or phrase you must look it up.
The TRILINGUAL LEGAL DICTIONARY provides legal words and phrases and gives meanings in English, Afrikaans, and Latin.
Loose-leaf Publications
What is a loose leaf?
A loose-leaf service is a form of publication that is periodically updated with materials that are filed in a binder to ensure that the contents are as current as possible. The updates are usually provided on a weekly, bi-weekly, or monthly basis. Loose-leaf services bring together into a single secondary source most of the important information from a variety of primary sources on a particular topic or field of law.
Journal Articles
Journal articles are shorter than books and written about very specific topics. A journal is a collection of articles (like a magazine) that is published regularly throughout the year. Journals present the most recent research, and journal articles are written by experts, for experts. They may be published in print or online formats, or both.
A Citation of a Case
A citation of a case consists of five components:
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