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RU LT1 - Legal Theory Semester 1 for first years Summary
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LEGAL THEORY 1 JUNE EXAM:1. Dispute Resolution and Law
2. Structure of the Courts
3. Legal Profession
4. Criminal Procedure
5. Civil Procedure
6. Importance of Legal History
7. Sources of Law
8. Twelve Tables
9. Praetorian Edict
10. Aedilitian Remedies
11. Justinian’s Codification
12. Canon Law
13. Glossators and Commentators
14. Roman Dutch Law
15. English Law
16. South African Common Law
17. Constitution
18. Legislation as a Source of Law
19. Judicial Precedent
20. Custom and Indigenous Law
,1. DISPUTE RESOLUTION AND THE LAW
Conflict arises when rules are broken/not adhered to/unclear (allow for different interpretation) e.g. when
somebody does not respect the rights of another
- Dispute of FACT: e.g. different versions of story, in order to apply law, must find truth
- Dispute of LAW (different interpretations, e.g. Swart v Shaw)
Different ways to resolve disputes in a lawful fashion (litigation, ADR) – should seek to secure interests
and minimise costs
When resolving a dispute one should consider: COST, TIME taken up by process, (ADVERSE)
PUBLICITY, IMPACT of process on relationship, STRENGTH of case
Parties need to consider nature of dispute and seek effective method of dispute resolution
Litigation
Resolution of dispute through application in PUBLIC FORUM
2 opposing models, based on different assumptions, adversarial and inquisitorial, Anglo-American
adversarial, Europe inquisitorial, SA adversarial with inquisitorial element
ADVERSARIAL: also adversary, accusatorial
- Battle between equals (assumption)
- Parties in control of proceeding
- Civil matter, e.g. breach of contract/dispute/no law broken, defendant and plaintiff argue, judge
listens and makes decision, applies law after finding of fact
- Plaintiff usually dominus litis, must prove the case
- Criminal Setting: prosecutor is dominus litis, burden of proof always rests on the state (beyond a
reasonable doubt)
- Role of parties:
Presiding officer (judge/magistrate) passive: does not participate
Legal representatives:
INQUISITORIAL:
- Role of the parties:
Presiding officer (judge/magistrate) active: ‘descends into the arena,’ questions witnesses, decides
who they will be, aim is to find truth
Legal representatives:
Results in a JUDICIALLY IMPOSED OUTCOME (judge makes decision)
Judicially imposed resolution to dispute
Standardised public means of resolution
Features:
Public
Outcome imposed
Judiciary controls process
Can be expensive
Can take a long time to get court date
, ALTERNATIVE DISPUTE RESOLUTION
Serves to complement (not replace) resolution of dispute through litigation
PRIVATE resolution of dispute through application of law
Features:
Private
Voluntary
Controlled by parties (except outcome not controlled in arbitration)
Shaped to suit the needs of particular parties
NEGOTIATION
Verbal exchange to resolve dispute between parties – no third party
NB Willingness to resolve dispute (voluntary), process must not create more conflict
Aim: compromise/trade-offs (giving and taking, win-win outcome with both parties satisfied)
Parties can get lawyers to negotiate on their behalf, sometimes already involved in litigation and settlement
is reached just before court gives judgement
Rules should be set regarding time constraints (if dispute not resolved in x amount of time, litigation)
ADVANTAGES DISADVANTAGES
- Parties control process - Can bring about more conflict, aggravate dispute
- Can save time and costs (emotional element is a risk)
- Potentially cheap and fast - Could have high costs/take long if constraints not
- Potentially win-win (mutually acceptable set
solution) - Mistrust and past conflicts can jeopardise process
- Relationship can be maintained/restored
- Private
MEDIATION
Facilitated/guided negotiation: voluntary process in which independent third party facilitates negotiations
between disputing parties
Parties in control – agreement to mediate (called mediation agreement) to shape process and outcome, and can
agree whether or not to have representatives
Mediator must be agreeable to both parties (be trusted by both)
Often used to resolve disputes in commercial sector and international politics, family advocate worked well in
divorce cases (parties can avoid considerable divorce costs)
Mediator’s role
- facilitates settlement between parties, provides neutral assistance
- gathers information, persuades parties to reassess positions, releases tension (NB personality)
- sets framework for dispute resolution
- does not impose a solution, encourages parties to create own solution
Agreement flowing from mediation: contract (all requirements must be met), may be made an order of court
Private mediation: not mediation that flows from the statute
ADVANTAGES DISADVANTAGES
- Solution not imposed - Difficult to find an ideal mediator (mediator will
- Can save time and costs have to be paid, usually a lawyer)
- Potentially cheap and fast - Could be drawn out
- Potentially win-win (mutually acceptable - Might fail (neither party willing to compromise)
, solution)
- Relationship can be maintained/restored
- Private
ARBITRATION
A procedure of dispute resolution whereby parties refer disputes to a third party
Common law vs statute: law passed by parliament
Complementary nature of ADR (does not seek to replace litigation)
Private arbitration (not flowing from statute)
Voluntary process, flexible
Arbitration agreement (contains names of parties, arbitration issue to be decided, powers of arbitrator, procedure
to be followed, how cases will be dealt with, how awards will be made) – sets framework in which arbitration
takes place
Parties agree that 3rd party will resolve their dispute through application of law after hearing both cases
Choice of arbitrator NB – usually an expert in the field, parties must consider nature of dispute
Usually follows judicial-like procedure: ADVERSARIAL (opposing sides), arbitrator listens to both sides and
makes decision
Arbitration award: after hearing sides, judicial evaluation, in writing, final, not appealable, but subject to review
ADVANTAGES DISADVANTAGES
- Solution guaranteed (NB) - Win-lose
- Can save time and costs - Could be alienating (legal formalities/jargon)
- Participants choose nature of proceedings - Relationship might be destroyed
(also choose arbitrator) – maintain some - No right of appeal
control
- Not public (private)
- Review if arbitrator allowed incompetent
evidence
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