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Letters to the Editor

 

• PO Box 36626, Menlo Park 0102  

• Docex 82, Pretoria 

• E-mail: derebus@derebus.org.za 

• Fax (012) 362 0969

 

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

 

Free access to judgments

 

In the modern-day practice, knowledge of the law relates in a large degree to access to up-to-date law reports and legislation.

 

The harsh reality is that many a young attorney who starts his or her own practice does not have the financial resources to establish a law library and, had it not been for the Southern African Legal Information Institute (SAFLII), those young attorneys, who need knowledge the most, would have literally, been left clueless.

 

SAFLII is a member of the Free Access to Law movement, an organisation that strives to provide free online access to legal information, including case law. The movement began in 1992 with the creation of the Cornell Law School Legal Information Institute by Tom Bruce and Peter Martin. The name Legal Information Institute (and abbreviation LII) has been widely adopted by other projects. It is usually prefixed by a country or region identifier.

 

SAFLII is accessible at www.saflii.org and acts as a repository of judgments that are sourced through a network of court officials based at the respective courts. SAFLII is currently managed and operated by the Democratic Governance and Rights Unit of the University of Cape Town. The website is accessed by some 3 500 visitors a day and gives access to nearly 20 000 judgments from South Africa alone.

 

New judgments are published on SAFLII on a continuous basis, and in most cases, long before such judgments are published in the subscription-based law reports. Point in case is the judgment of Ferris and Another v FirstRand Bank Limited and Another (CCT 52/13), handed down by the Constitutional Court on 12 December 2013 and published on SAFLII the following day using the citation [2013] ZACC 46. The aforesaid matter was published in the South African Law Reports in only its third volume of 2014 with the citation 2014 (3) SA 39 (CC).

 

Citation on SAFLII starts with the year in which judgment has been handed down, followed by the prefix ZA + an abbreviation for the relevant court followed by a number. Judgments from local and provincial divisions start with ZA followed by an abbreviation for the specific province and finally an abbreviation for the specific court. To illustrate this, a Pretoria High Court judgment will be indicated as ZAGPPHC with the ‘PHC’ denoting the Pretoria High Court, whereas a Johannesburg judgment will be indicated as ZAGPJHC with the ‘JHC’ at the end identifying a judgment by the Johannesburg High Court.

 

SAFLII, apart from publishing judgments from the Constitutional Court, Supreme Court of Appeal and the High Court divisions, also publishes judgments from most of the specialised divisions of the Supreme Court, namely the Labour Court, Tax Court, etcetera. Certain legislation and law journals like De Rebus and De Jure are also published on SAFLII.

 

Finding case law on a specific matter is simple and straightforward. The SAFLII website has a search function similar to the subscription-based law reports. The SAFLII search function also has the ability to sort the search results by court, date or relevance. In addition, SAFLII also has a function called ‘Noteup’ which gives you the ability to see whether a specific judgment has been cited in subsequent judgments. This is helpful in determining whether there are conflicting decisions in respect of a specific judgment.

 

The methodology I use to find case law is to initiate a search on a specific topic, whereafter I filter the results further by concentrating on the most recent judgments in the Supreme Court of Appeal and Constitutional Court, this because of the stare decisis principle. The aforesaid can be illustrated by performing a search on the phrase ‘suspensive condition’, which would give you 566 results, consisting of all judgments and articles published on SAFLII. Because we follow the stare decisis principle in South Africa, the obvious thing to do after that would be to refine your search further by looking only at the Supreme Court of Appeal and Constitutional Court data bases, which will reduce the number of search results to 86. Your final step will then be to sort the decisions by date whereafter common sense dictates that you should start reading the more recent decisions first.

 

I must admit that although I cannot see our firm cancelling our subscription to the mainstream law reports any time soon, www.saflli.org is usually my first port of call to find legal authority.

 

Francois Greeff, attorney, Pretoria

 

• De Rebus is conscious of the importance of providing up-to-date information through case notes, as well as the ‘Law reports’ and the ‘New legislation’ columns. These are standing monthly columns in the journal and they are consistently rated as among the highest-read columns by readers in reader surveys – Issue Editor.

 

Heard at the Polokwane Magistrate’s Court

 

Plaintiff witness: Your Worship, I was driving in Church Street in a northerly direction. There was an oncoming car travelling, which at the last moment, swerved to the right. This caused a collision with my car. Defendant witness: Your Worship, it is true that I swerved to the right but before doing so I activated my right-turn indicator. The oncoming driver could have foreseen that I was about to swerve to the right, and accordingly, should have swerved to the left to avoid the collision.

 

Harun Ebrahim, attorney, Polokwane

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