Law: Conveyancing: Legal Research Process

• Start by reading about your topic in a general way. The leading textbooks on the subject (if available) will provide a good description of the current state of the law, as well as references to primary and secondary literature. Remember that the type or genre of legal writing your essay or assignment requires will affect the focus of your research and the nature of the sources you will consult.
• Compile your own list of sources, particularly if there is no textbook on the subject.
  • Primary sources: legislation; case law (these are authoritative).
  • Secondary sources: Compile a wide bibliography of secondary sources — books, periodical literature (these also have authority, but cannot override legislation and case law).
  • Reference books: Be prepared to consult reference books — bibliographical texts, dictionaries, encyclopaedias, etc (these have no authority, but serve to assist the research process).

Hard copy or electronic versions of sources?

• The UWC Library has extensive collections of both electronic and hard copy primary and secondary sources, and either may be consulted.
• Efficient use of both versions of legal research sources will result in better research: each has its distinctive advantages and disadvantages. Beware, however, of general internet searches. There are some very useful internet sites (usually official government sites or semi-official sites maintained by universities or professional associations) containing primary legal materials, but there is also a great deal of quasi-information of dubious authenticity on the internet.
• Except when material has not been published in hard copy your reference to a source must always cite the hard copy source, ie the book, printed journal or law report or collection of statutes containing the source you used. Official and commercial electronic versions of these materials (eg Jutastat, and Lexis) always provide this information.

Generally, an essay-type assignment should have three main parts: an introduction, a body and a conclusion.
Introduction

• The introduction should identify the main topic to be discussed and indicate how the argument will progress. It should prepare the reader for the body of the essay. In an academic essay, the writer defines a problem or states a thesis and indicates how it will be treated in the essay. Exactly what is included in an introduction will vary according to the writer’s purpose and the topic.
• Since the introduction is meant to introduce the argument of the writer, it is difficult to finalise before writing the essay. The introduction, therefore, should almost always be rewritten as part of the final revision of the essay.

Body of the Assignment or Essay

• The body should contain the arguments you put forward in support of your answer to the question posed in the topic. It should be set out in a series of linked paragraphs. Each paragraph should deal with a single concept or idea and should follow logically from the preceding paragraph. Use information in a structured way to support your arguments, rather than haphazardly writing down information from a variety of sources — which is what will happen if you have not properly planned your essay.
• Normally the main body of your essay should be organised under a few major headings, with sub- headings if necessary. These sections must follow a logical order. Headings and sub-headings are a desirable aid to a well-ordered piece of writing, provided that they are an indicator of the structure of the underlying argument. Do not over-use them. The length of the essay and the type of the essay should also determine the extent to which you use headings and sub-headings.

Conclusion

• The conclusion should draw together the main points made and concisely state your viewpoint in answer to the topic. Obviously your final viewpoint should follow logically from the arguments made in the body of the assignment or essay. In the same way, if you state in the introduction that you are going to write about x, y and z, then make sure that you actually have addressed all three. Above all, be explicit— do not expect the reader to read between the lines.
• The purpose of the conclusion is to draw together the threads of the argument and make a final concluding statement on the topic. There is usually a link between the introduction and the conclusion: the former introduces the topic to be discussed or outlines the argument, and the latter indicates that it has been done. The conclusion should not contain new information, ie information that has not been discussed in the body of the essay. Sometimes the conclusion is a restatement of the introduction, in different words. The essay then has a feeling of unity and completeness. In an essay that involves discussion, the proposition or thesis stated in the introduction is accepted or rejected in the conclusion.

This type of assignment takes a slightly different format, but still has the three main parts: Introduction, Body and Conclusion.

• In the introduction you should identify the area of law involved and what the specific legal issue is.
• The body of the writing contains a full discussion of the relevant legal rules and principles, which is carefully constructed in a logical and coherent manner. If case law is relevant, use it intelligently. Do not provide a shopping list of cases with short summaries of the facts, and then state ‘Therefore...’ Use the relevant point from the case(s) to ‘tell the story’ and to show how the case(s) support(s) (or reject) the existence of a particular rule or principle relevant to the issues raised by the problem. Remember that it is only the ratio that binds, but that the relevance and scope of the ratio can only be determined by noting the context in which it was formulated.
• At the same time, or following the discussion of the law, apply the law carefully and properly to the facts before you, arguing where appropriate for a particular point of view, and taking care to be able to justify your argument in light of the authority from cases or statutes. Be sure to indicate clearly whether the law on a particular question is clear and settled or is in need of interpretation and development. Clearly distinguish between opinions (your own or others’) about how the law should be interpreted and settled rules and principles, as well as between views about what the law should be and statements concerning what the law is.
• In the conclusion you should state the appropriate advice for the client or the appropriate solution to the problem under consideration. Note that there is very seldom only one right answer to a problem question. This is because much depends on how the argument is constructed and on how the law is interpreted. In real life situations, like in a court, each matter has two sides to it and the outcome of the case depends on which side can convince the court that its version is the better version. In a problem-type essay, the conclusion should summarise your conclusions regarding the legal rights and duties of the parties.

• Being able to summarise a case is an important skill that you will rely on throughout your legal career. It is especially valuable while you are studying. Summaries are essential when you revise for tests and exams, since you will NEVER have enough time to read through the law report again during exam preparation, and also provide you with a way to force yourself to analyse, and therefore to understand, the cases you have to read. This are just guidelines; as you develop your legal skills, you may wish to adapt them to suit your own style.
• Some tips before you start
• Cases will figure prominently in your reading for two main reasons. First, under the doctrine of precedent they are a source of law: depending on the status of the courts involved, a subsequent court either must follow the earlier court’s determination of the rule that must be applied to a particular issue (‘binding precedent’), or may do so (eg where the subsequent court has a higher status than the prior court, or where the two cases concern different, though related, issues – ‘persuasive precedent’.) Secondly, careful study of the sources and methods of reasoning employed by judges should show you what is expected of you when it comes to answering the typical ‘problem-type’ question in exams where, in essence, you are expected to emulate the reasoning process of judges. More generally, you should see what is involved in determining the appropriate law, and in applying legal rules.
• Your reading and summary of a case must therefore be directed at isolating the legal issue decided in a case, identifying the rule applied by the court to resolve that issue, grasping the reasoning that led the court to that formulation (ie the identification and use of sources of law), and understanding how the court applied the rule to the facts - how it resolved the legal issue.
• Before you start to read the case, ensure that you are familiar with the area of law with which the case is dealing. This will give you an idea of what you should be looking for when you are reading. Many cases deal with multiple issues, of which only one might be relevant to your course. It may be necessary to point out briefly which issues were dealt with, and then to note the issue covered in your summary. Read your class notes or a textbook so you have some background before you start to read the case.
• Read the case through once before starting to summarise. This will make it easier for you to pick out the relevant areas of the case. It may be useful to underline or highlight as you go.
• The headnote of the case is also useful, as it will give you a brief outline of the issues. However, do not rely on the headnote alone for your summary. Headnotes are prepared by the editors of the law reports and may contain errors. Also, reading the whole case will help you to understand the issues in context and how the judge reached the final decision.
• Be as brief as possible. Remember that the purpose of a case summary is to enable you to remind yourself quickly of what was decided in a particular case.
• Identify the court that decided the case, and note whether it was a full bench decision or one by a single judge. Where there is more than one judgment, note the names of the judges who wrote them, and how many other judges concurred with them. Note whether a particular judgment is a majority or a minority judgment. This is important because of the way in which South Africa’s system of precedent works, and can be very helpful when you are writing an essay or studying for an exam.
• Use a Legal dictionary or Latin dictionary to look up any terms you do not understand.
• Any case can be broken down into the following components:
  • The facts.
  • The question of law and answer thereto.
  • The reasoning employed by the court, which leads to this answer.
  • The outcome: the application of the law to the facts and the court's order.
• This is also the most sensible framework to use for structuring your summary.

The Facts

• Many disputes that reach the courts involve both disagreements between the parties about ‘what really happened’ _ the facts — and about the legal rights and duties that flow from these events — the law. The case you have to summarise may therefore contain both the court’s resolution of factual disputes, and its decision regarding a legal dispute. Your summary should concentrate on the latter.
• From the point of view of a reader aiming to establish what a case tells us about the law — ie from your perspective — the facts of the case are important only because they give rise to the legal question that the court seeks to answer, and in this way determine the occasion and scope of the future application of the rule formulated by the court. This indicates the extent to which your summary should delve into the facts: limit yourself to mentioning the salient facts, ie those facts that are essential to showing what the legal issue in that case is and how it arose. In writing your summary always bear in mind that, from a lawyer's perspective: ‘Decided cases ... are of value not for the facts but for the principles that they lay down.’ (Centlivres JA in R v Wells 1949 (3) SA 83 (AD) at 87-8).
• The course of events that lead up to a case being heard in court can often be complex and stretch over a long period of time. Make sure you identify the parties to the dispute and that you are aware of the basic set of facts that gave rise to the dispute. It is often useful to draw a diagram laying out a complex set of facts and then summarise from this. It is important to try to keep the summary of the facts as short as possible. You should aim to state the facts in a few sentences. There is no need to give all the personal details of the parties or the whole history of events leading up to the court proceedings – only give what is relevant to the legal question at hand. You will often have to read the whole case before you know which facts are relevant. The value of exercising discipline by extracting only the relevant facts, and not writing down everything you come across, is that this enables you to determine precisely to which issues the legal rule or principle formulated in this case applies to, and thus to know what the scope of the relevant legal rule or principle is. In other words, you must establish for which fact-pattern this case constitutes a precedent.
• It should be useful to ask yourself questions such as:
  • Would the presence or absence of this fact make a difference to either party’s success in this case?
  • Does this fact matter with regard to the point of law in question?
  • Why do these facts present a problem?
  • Did the judge bring the facts into her reasoning?
  • What happened that led one party to institute legal proceedings against the other?
• The court may be asked to decide factual disputes between the parties on questions such as ‘What happened here?’ or ‘Did X occur before Y?’ Your summary can usually ignore this. What is relevant from your point of view are the facts as established by the court, since it is these that determine the question of law identified and answered by the court. However, it is important to notice (and note) when a court decides the dispute between the parties on the basis of its determination of such a factual dispute, rather than on the basis of its answer to the legal question.
• When this happens the answer to the legal question is a merely an obiter dictum (see below). For these reasons you must always determine whether a particular issue in dispute between the parties raises a question of fact or a question of law. This is basically a distinction between questions regarding what happened (questions of fact) and questions regarding what legal consequences follow from what happened: what the parties are legally obliged and entitled to (questions of law).

The Question of Law

• Under the doctrine of precedent, the aspect of a judgment that is capable of binding subsequent courts faced with the same issue is the court’s decision on the principle or rule of law that must be employed to resolve the issue between the parties. The most important aim of a case summary is therefore to identify the legal question that the court sought to answer and the answer it gave thereto. The answer that the court gives to this question of law is termed the ratio decidendi. As it is the ratio of the case that will form the rule or principle for which the case is a precedent, it is important that your summary is clear on what constitutes the legal question in the case and the ratio.
• Black’s Law Dictionary defines a ratio decidendi as ‘the principle or rule of law on which a court’s decision is founded.’
• The ratio should be distinguished from obiter dictum (plural obiter dicta), which Black’s defines as ‘a comment made in the course of delivering a judicial opinion but one that is unnecessary to the decision in the case and therefore not precedential.’ However, do take note of obiter dicta, especially in judgments of the Constitutional Court (CC) and the Supreme Court of Appeal (SCA), since these often indicate the likely direction of the future development of the law.
• The basic test for identifying the ratio of a case is the following:
  • [T]he reasons given in the judgment, properly interpreted, do constitute the ratio decidendi, originating or following a legal rule, provided (a) that they do not appear from the judgment itself to have been merely subsidiary reasons for following the main principle... (b) that they were not merely a course of reasoning on the facts... and (c) (which may cover (a)) that they were necessary for the decision, not in the sense that it could not have been reached along other lines, but in the sense that along the lines actually followed in the judgment the result would have been different but for the reasons — Schreiner JA in Pretoria City Council v Levinson 1949 (3) SA 305 (AD) at 317.
• Although the question of law will often relate to or be based on the facts of the case, it can be distinguished from a purely factual enquiry (see the example given in the last paragraph of the previous section), in that this question focuses on what the consequences the law attaches to the events that brought the parties to court - on what legal rights, duties and remedies flow from the facts found by the court. Always bear in mind the statement of Centlivres JA quoted in the previous section. Although it may be difficult to do so, it is essential to separate out the legal and factual questions.
• In addition to following the steps suggested by Schreiner JA above, it may be useful to ask yourself questions such as:
  • What is the concise rule of law to applied here to decide which party 'wins'?
  • Which question of law must be decided in order to reach an outcome on the facts as found by the court?
• Here are important points to bear in mind, especially, but not only, because you will encounter cases in which judges disagree with each other:
  • '[T]he ratio decidendi of a case, as opposed to the actual decision in the narrow sense, is binding. It is its abstract ratio which is added to the body of law which a Judge must apply.' (Coetzee J in Trade Fairs and Promotions (Pty) Ltd v Thomson and Another 1984 (4) SA 177 (W) at 185). That is, although the outcome of a particular case — which party won and what remedy was awarded — is important, this must be distinguished from the legal question and ratio, which concern not the outcome, but the (abstract) rule or principle that leads to that outcome. It is crucial to bear this in mind, since there are cases in which judges may agree on the outcome, but disagree as to the ratio for that outcome, and vice versa. In such cases, your summary should indicate these differences, as it is agreement or disagreement on the ratio that counts under the doctrine of precedent.
  • Where there is disagreement among judges deciding a particular case as to the ratio, it is the view of the majority that constitutes the precedent. However, be sure to include the findings of both the minority and majority in your summary: it is essential to note such disagreement, as well as (briefly) the approach adopted in dissenting minority judgments. The latter may sometimes be preferred in later cases, especially where issues arise that are analogous rather than identical to the earlier case.
• It is also important for further reasons:
  • Different judges may interpret the same set of facts, or the same question, differently, and where this is so, each approach may influence future legal development with regard to the specific issue or question it addresses. This is particularly true of CC and SCA judgments, where individual judges may deliberately seek to deal with a particular legal issue or argument they consider to be of general importance to the law’s development.
• There is not always one ‘right answer’ to a particular legal problem. Many of the cases you will read are prescribed precisely because they concern controversial and unclear legal issues, and areas in which the law is still developing. Different judges may reach the same decision but through different reasoning.
• The ratio of a case — the rule or principle applied by the court — must also be distinguished from the reasoning employed by the judges to arrive at that principle. Although the legal reasoning of the judges is, as explained below, important, it does not form part of the ratio, as individual judges can, and sometimes do, come to the same conclusion as to the answer that must be given to the legal question in a case despite following different paths to arrive at that answer. That is, judges may concur in the ratio, but for different reasons. Where this happens, concentrate on the concurring judgment that was supported by the largest number of judges, but also note the reasoning employed by those who gave separate concurring judgments. The latter may well specifically deal with matters raised in later cases, and so exert a strong influence on the future of the law. It may, of course also deal with exactly the questions you may be asked in a test or exam.

The Reasoning

• This refers to the reasons given in the judgment for the ratio, ie for the answer given to the legal question. It consists of the identification, interpretation, evaluation and discussion of sources of law, mainly legislation and previous cases, in order to answer that question. It is important to understand the reasoning of the court as you may be asked to comment on, discuss or criticise it in an essay or exam. Also, later cases may build on or dispute the court’s reasoning, or apply it by analogy to a different legal issue. In addition, an understanding of the reasoning of a case is likely to aid your understanding of the point of law in question. The reasons for the judgment (majority and minority or dissenting) may be useful in mounting arguments in similar fact-situations that you may be required to discuss or resolve in essays and examinations.
• Understanding the reasoning of the court is therefore crucial. In your summary do not note only the ratio and outcome of the case, but be sure to include a brief account of the reasoning used by the court (or a particular judge, where there is more than one judgment) to reach the decision on the question of law. In this section of your summary you need to look at the reasons why the court came to the conclusion on the law that it used to answer this question, and how it reached this conclusion. Where there is disagreement among the judges, you should make a point of trying to identify how and why the reasoning in the majority and dissenting judgments differs.
• It may be useful to work through the case section by section. As you work through each section of the case ask yourself how the judge moved from one point to the next. This will help you to understand the overall reasoning of the court. Once you have worked through a section, try to establish how the judge created the link to the next section. Once you understand each section it will be easier to summarise the logic of the case in its entirety.
• It may be necessary to understand the court’s use of authorities (eg cases, statutes, Roman Dutch and contemporary writers) and persuasive sources of law, and how these impacted on the outcome. In each section note the authorities relied upon and try to summarise the reason the court looked at these sources, what importance it attached to them and the conclusion drawn from them. There is no need to quote the actual sources.
• Here, too, you must be selective and disciplined — note only the most important aspects of the judges’ reasoning — ie that which led them to adopt the particular ratio rather than another. Look in particular at how they deal with precedents (do they choose one over another / distinguish a particular precedent / refuse to follow it or overrule it?), with the views of academic commentators and with Roman and Roman Dutch authorities. Note what type of source is used and whether it is preferred over another. Especially important is the stand the court takes on matters that are controversial or still unsettled. Obviously, all this can only be done if you have some idea of the issues and debates that are prominent in respect of the question the court is trying to resolve, so you should first familiarise yourself with this through reviewing lecture notes, articles and textbooks.

The Outcome

• Here you must explain how the court applied the answer to the question of law — the ratio — to the precise issue between the parties: in whose favour did the court rule? What remedy was granted? Keep this section brief, but note specifically whether the court regarded its answer to the legal question as decisive for the order it made, or whether it would have made this order anyway if it had given a different answer to that question. In the latter event, the decision was ‘based on the facts’, ie the court disposed of the dispute not on the basis of its answer to the legal question, but rather on the basis of its resolution of the factual disputes between the parties. The answer to the legal question is then, strictly speaking, an obiter dictum rather than a ratio decidendi and thus has persuasive rather than binding authority. The answer given to the legal question only forms the ratio of the case if this answer was decisive to the outcome of the case.

Conclusion

• Finally, since your summary is meant to improve your own study and understanding of the law, it is not sufficient to copy someone else’s or to quickly read the headnote. Take time to understand the case and to make a careful summary, as this will make revision for exams more efficient and less stressful. Developing your case summary skills will enable you to approach even the most difficult cases with ease, and to acquire the ability to solve legal problems in a ‘lawyerly’ fashion.

• Remember that a sentence must contain a subject and a verb — otherwise, it is not a sentence. Use short and simple sentences — but not in excess, as a succession of short sentences can be as irritating to the reader as one long and rambling sentence.
• Ensure that there is a ‘link’ between each and every successive sentence:

Constructing paragraphs

• A paragraph marks the full development of a single point or idea, and a new paragraph should indicate the introduction of a new point or idea.
• A paragraph develops a unit of thought. Therefore, build each paragraph around a topic sentence. The first sentence should be supported by the sentences that follow it.
• If you make two separate points in one paragraph, divide it.
• If you include something extraneous to the idea you are developing, delete it.
• Ensure that paragraphs are linked. That is, make sure that it is clear to the reader how the point made in a paragraph is connected to the point made in the previous and the succeeding paragraphs. Use ‘linking words’.

Take care when using the first person

• A fact is a fact whether you know of its existence or not, and the value of an argument is usually quite independent of the fact that you made it. For these reasons, you must avoid using the first person when making assertions of fact or stating arguments — the fact that you are making the statement or assertion of fact is normally irrelevant. Moreover, it is usually perfectly obvious that you think/believe etc whatever you write in your essay— it is not necessary to say so.
• However, when it is not obvious that you are expressing an opinion or conclusion (eg, when you state that a certain vague or controversial rule has a particular meaning) or when you are required to give your own opinion, it is best to do so frankly and actively. It is then acceptable to use phrases such as: ‘in my opinion/view’; ‘I conclude’ etc.

Take care when using the names of authors in the main body of the text

• It does not usually matter who states a fact or puts forward a particular argument. For that reason it is often inappropriate to identify an author in the body of the text. However, sometimes the identity of an author does affect the authority of a statement. It matters, for example, when the author is one of the ‘old authorities’, or is a particularly influential contemporary writer, or if the focus of the essay falls on the opinions of particular writers. When that is the case, you should use the name of the author in the body of the text.