Practical legal research

Legal Research Skills
for legal practice
Elizabeth Moll
elizabeth.moll@uct.ac.za
021 650 5691
Anthea Paulsen
anthea.paulsen@uct.ac.za
021 650 1261
This work is licensed under a Creative CommonsAttribution-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
legislation
Drafting of
pleadings
• Jurisdiction!

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

4 types of ‘focus’ searches:
ADVANCED – searches across everything
LAW REPORT – specific case search
LEGISLATION – specific Acts search
GAZETTES 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 = neutral
Red = negative
Green = positive
Yellow = cautionary
White circle = no analysis
Black circle = conflicting analysis

Use the
dropdown
to choose
your
search
Can also browse here

Different search forms:
ADVANCED – searches everything
BOOLEAN – allows you to search using Boolean operators
ACTS – searches national legislation
JOURNALS – searches for Journal articles
GOVERNMENT GAZETTES – searches Government Gazettes
LAW REPORTS – searches for cases
PROVINCIAL 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

Can select and deselect
sources here – check the
subscription first

If it’s a phrase, tick “exact
phrase”

SAFLII
This 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!

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 court
Click 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

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
view
Alternatively 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 Books
using 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 Page
Eg.
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

Problems
Problem 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
Ownership
Sale

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
– Ownership
– Vindication
– Sale

More Problems
Problem 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
– Contract: Specific performance

Research Assistance
• Use the Library’s Virtual Reference Service at:
www.law.lib.uct.ac.za
• Email us
elizabeth.moll@uct.ac.za OR
anthea.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 
108

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