TLI4801/201/2/2019

Tutorial Letter 201/2/2019

Techniques in trial and litigation

TLI4801

Semester 2

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2019-S2, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa. However, in order to
support you in your learning process, you will also receive some study material in printed
format.

BARCODE
1 INTRODUCTION
Dear Student

This tutorial letter contains the commentary to Assignments 01 and 02 for the 2nd semester of
2019. Please read its content carefully. This tutorial letter is important for examination purposes.

This commentary is merely a guideline and it may well contain brief answers for some
questions. Therefore, students need to elaborate in their answers to achieve good marks.
Your answers for both assignments must not exceed 20 pages (including bibliography
and declaration of authenticity if applicable).

2. FEEDBACK TO ASSIGNMENT 01 AND ASSIGNMENT 02

ASSIGNMENT 01: SEMESTER 02

UNIQUE NUMBER: 718511

Note: Some of the answers to the Questions in this Assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 3rd
edition (2012 LexisNexis). Students must not regurgitate what’s in the prescribed
textbook but write in their own words as far as possible! Students are also expected to
“identify the pertinent legal principles” and also to demonstrate how these principles
apply to the facts presented. To this extent, the student is required to also conduct
independent legal research. This essentially entails perusing relevant legal sources in
order to advice the client accordingly.

1(a) Students must discuss which type of summons is appropriate having regard to the facts.
You must discuss both types of summons and the circumstances when they will
be used, and then apply to the given facts.
APPLICATION TO FACTS: In this example, you may use a simple summons because
the amount due in respect of an insurance policy is a liquidated claim or debt. It is
ascertainable. A provisional sentence summons is used where the claim is liquid such
as a cheque, and it may well be applicable here. A liquid document is evidence of an
established monetary debt, as the claim that arises also falls within the definition of a
“debt” or liquidated demand. Therefore, Mrs Smith or her attorney can choose which type
of summons to use. Therefore, you could use both types of summonses. However, a
provisional sentence summons is said to be speedier than a simple summons. (6)
(b) Students need to look at Rule 32(1) of the Uniform Rules to answer the question.
A summary judgment application is used in the following instances:
Where there is a liquid document, liquidated claim, specified movable property or
ejectment. (Rule 32(1)).

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You must elaborate on the above instances.

As payment of an outstanding amount in respect of an insurance policy is ascertainable, the

claim can be described as a liquidated claim. A simple summons would be appropriate. A
summary judgment application is applicable with a simple summons. (4)
(c) Students need to draft a declaration. Note: Students need to know when a declaration is
applicable (the circumstance and type of summons). Refer to Rule 18 of the Uniform Rules.
NOTE: The declaration must include the court’s name/jurisdiction, names of parties and case
number and a heading. There must be a heading; paragraphs must be numbered, coherent,
set in logical order and the declaration must be signed and dated.
IN THE NORTH GAUTENG HIGH COURT, PRETORIA (you can refer to an appropriate High
Court)

Case number: XXXX (insert)

In the matter between:

Plaintiff (insert name for example, Mrs A Smith)

And

Defendant (insert name, for example, ABC Insurance Company)

PLAINTIFF’S DECLARATION

1.The plaintiff is Mrs A Smith (describe fully including address)

2.The defendant is XYZ insurance company,…(describe fully including address)

3. This Honourable court has jurisdiction to hear this matter in that (state the grounds for
jurisdiction)

4-6. State the causa/facta probanda (reason for bringing action; reference to policy; copy of
cession; copy of death certificate; when policy ceded to her, was insurance company informed,
their response or lack thereof leading up to present action; students may use your own facts to
supplement the given facts provided it does not detract from the core issues).

7. Despite demand, the defendant refuses and/or neglects to pay the aforesaid amount and
interest to the plaintiff.

Wherefore the plaintiff claims from the defendant: (prayer)

1. payment of the amount of …. [remember jurisdictional limits from CIV3701; > R 400 000,00 if
this is a High Court matter; < R 400 000,00 if magistrate’s court matter; note distinction
between district courts and regional courts from CIV3701]

2. Interest on the amount of …..

3. Costs of suit.

4. Further and/or alternative relief.

Signed at…. on this….. day ….. of ……..

Signature by plaintiff’s counsel……/ addressed to Registrar

Signature by plaintiff’s attorney……

(15)

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2 Students need to look at direct evidence, indirect evidence, opinion evidence and
credible evidence having regard to the given facts. You need to define these types of
evidence, give examples of these types of evidence and apply the law to the given facts.
You must elaborate in your answers.

 Direct evidence: refers to eye-witness evidence. It is evidence that witnesses

perceive using their own senses such as, sight, hearing, touch, taste and smell.
Different witnesses perceive the action differently.
Examples: Evidence by Mrs Smith and /or her children, evidence by any witnesses
to the accident, documentary evidence such as contract, cession document,
relevant identity documents, birth certificates, marriage certificate, death certificate,
municipal plans of intersection/street, exhibits and so on.

 Indirect evidence: How does it differ from direct evidence? You must elaborate.
The most common form of indirect evidence is circumstantial evidence.
Circumstantial evidence would help prove the facts supporting your theory of the
case. Examples of indirect evidence: circumstantial evidence, evidence tendered
by police officer arriving at the scene of the accident and so on.

 Opinion evidence: is another form of indirect evidence. It refers to evidence

tendered by experts: medical experts, assessors, insurance claim consultants,
panel beater, handwriting expert, executor and so on.

 Credible evidence: It refers to evidence that establishes that an item of direct or

indirect evidence is credible or reliable. For example, a suggestion in cross-
examination that the witness has poor eyesight/short-sighted as he/she wears
prescription glasses; the witness can dispute this by calling his optometrist to testify
on his/her behalf in court.
You need to elaborate on the above to achieve higher marks. (10)

3 Students need to discuss what is an opening statement in civil trials and draft the
opening statement applicable to the given facts.
The opening statement plays an important role in the process of persuasion, and it is the
beginning of the process of persuasion by means of oral advocacy.
The example in the textbook is a good example and the basic principles/format here
should be followed. Remember the question refers to an opening statement in a civil
trial. In drafting the opening statement: use a heading, use numbering, be logical, apply
the given facts, be brief, mention what the issue/s are, identify the evidence, refer to the
techniques and apply to the facts when drafting. You need to introduce the court to the
issues (including Rule 37 conference if it is applicable) and relevant evidence (witnesses,
exhibits etc) to be led in the opening statement.

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IN THE NORTH GAUTENG HIGH COURT, PRETORIA (Students can refer to an appropriate
High Court)

Case number: XXXX (insert)

In the matter between:

Plaintiff (insert name for example, Mrs A Smith)

And

Defendant (insert name, for example, ABC Insurance Company)

Opening statement in Mrs Smith’s case no XXXX

1. May it please the Court, … this is an action for an outstanding payment in respect of an
insurance policy…

2. The issues between the parties as they appear from the pleadings are: (address the issues
and number the issues; refer to Rule 37 if applicable)…

3. I intend calling the following witnesses on behalf of the plaintiff (name them and elaborate on
their role: plaintiff, relevant witnesses/experts)…

4. Deal with the exhibits here if applicable

5. Summarise the evidence of the main witness and elaborate on relevant features of the xhibits.
6. if it pleases the court, I now call the plaintiff as the first witness…

Insert name, signature and address of plaintiff’s attorney/counsel

(15)
[50]

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ASSIGNMENT 02: SEMESTER 02

UNIQUE NUMBER: 720262

The answers to this question are to be sourced from Palmer, R & McQuoid-Mason, D
Basic Trial Advocacy Skills: Chapter 1

1. Trial lawyer’s personal responsibility for his own or her own conduct.

In the heat of the battle, a lawyer’s ethical obligation to represent his client zealously in the
adversarial system may tempt him to sacrifice integrity, in order to achieve a short-term goal. It
must always be kept in mind that a trial lawyer is not merely a hired mouthpiece. He must
exercise independent judgement or a hired gun. Thus, he may never be an instrument of fraud,
or be a party to misleading the court. His word is his bond. He should never compromise his
personal standards of integrity for any client. There are no exceptions.

Thus, whilst Crooked Face must defend his client to the best of his ability, he must always keep
in mind his duty as a court official, which is to act with integrity at all times. (5)

2. Trial lawyer’s duty to inquire into client’s version.

There is, in principle, no duty on trial lawyers to enquire as to whether their clients are telling the
truth or not. However, where the instructions or other information are such as to cause the
lawyers to doubt the reliability of such information, they must accordingly investigate. Where
possible, the lawyer must check the truth of what his client tells him, to the extent that such
statements will be relied upon by the court. (5)

3. Client insisting on pleading guilty against advice of counsel

Where the accused person informs their lawyer that they did not commit the offence with which
they are charged but insist on pleading guilty for reasons of their own, defence lawyers should
use their best endeavours to persuade them to plead not guilty. If the client persists in their
guilty plea, against the advice of counsel, the lawyer may continue to represent them. However,
the lawyer may only do so after having advised the client of the consequences of such a plea.

The lawyer must also advise the client that what can be submitted in mitigation can only be on
the basis that the client is guilty. Thus, the lawyer cannot argue in mitigation that the facts are
such that the elements of the offence have not been established, after pleading guilty. In the
context of South African legal practice, if there is doubt about the client's guilt, his lawyer should
insist on a not guilty plea being entered or be entitled to withdraw from the case should the
client nor consent to the not-guilty plea. In the case in point, Crooked Face can, at the very
least, try and convince Honest to do the right thing, namely, to allow Baby Face to take
responsibility for his actions. If Crooked Face does not succeed in this regard, then he should
withdraw as the attorney/lawyer of record.

Client privilege and the duty not knowingly to mislead the court

As a general rule, trial lawyers may not divulge to the court, or to any other person, information
confided to them by their clients. It is submitted however that, as the confidence belongs to the
client, such a disclosure could be made if the client, with full knowledge and appreciation of the
consequences of the disclosure, consents thereto.

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As a general rule in criminal cases, a defence lawyer may not, without his client's consent,
disclose facts known to him concerning his client's character or antecedents. However, the
lawyer must not knowingly put forward, or let his client put forward false information with the
intention to mislead the court. Likewise, a defence lawyer must not indicate his agreement with
information that the prosecution puts forward which he knows to be false. Crooked Face cannot
be seen to be misleading the court by knowingly presenting information which is untrue.

As suggested previously, the best option at his disposal, in the circumstances, is to withdraw as
the lawyer of record. (10)

4. Trial lawyer's right to choose appropriate method of presenting case

The English Law Society rules concerning civil matters provide that trial lawyers have the
implied right to present their client's case at the trial or hearing in such a way as they consider
appropriate. Thus, if the client's express instructions do not permit the lawyer to present the
case in a manner which they consider to be the most appropriate, the lawyer may withdraw from
the case, after seeking the approval of the court. Such withdrawal, however, must be done for a
good cause, and, where possible, in such a manner that the client's interests are not adversely
affected. Modern views concerning client autonomy, however, would seem to indicate that a
lawyer should give the client an idea of the options available concerning a particular course of
conduct, and seek to get the client's approval for the method chosen. ln criminal cases in South
Africa, however, the accused has a right to testify in his defence, even if his lawyer's advice is
not to testify. Should the client insist on testifying against his lawyer's advice, this would not be
a ground justifying withdrawal by the lawyer. (See R v Matonsi 1 958 (2) SA 450 (A)). (5)
(25)

Question 2

The answers to this question are to be sourced from J Engelbrecht, Morris Technique in
Litigation (2010) Chapter 19.

1. The lawyer must get thoroughly acquainted with the facts and know what the case is
about. The lawyer must insist on a brief that contains the full particulars of the charge in
the lower courts or the indictment in the Higher Court; obtain copies of all statements in
the police docket as well as documentary evidence. The lawyer must study these
documents in preparation for the consultation. The trial lawyer will also study the relevant
law, case law and authorities. (2)

2. The strategic plan contains a definition of the crime/s levelled against the accused by the
state, so that the elements are always available to the lawyer. The strategic plan is the
basis on which the lawyer conducts his/her trial. The relevant case law must be studied
and the lawyer must take note of the leading judgments where it refers to each of the
elements. The lawyer must also study the elements of the relevant statutory crimes. The
relevant case law must also be studied to ascertain the interpretation given to the section
by the relevant judgments. (3)

3. The lawyer must find out about the damage that his client has done and investigate every
occasion on which his or her client met with a member of the police force between the
date of the offence and the consultation with himself. The lawyer must investigate the
matters and ascertain the truth. (2)

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4. As a cautionary rule, lawyers are advised not to consult with their clients in the presence
of supporting witnesses and vice versa. Legal professional privilege applies between
attorney and client and it does not extend to outsiders who are at the consultation. This
includes witnesses and those individuals who attend the consultation as a stenographer,
an interpreter or the legal representatives. Therefore, lawyers should generally consult
with witnesses away from their client’s presence and be careful about what they disclose
to them regards the defence of their clients. The reason not to disclose anything to the
supporting witnesses is to avoid them blurting anything out in the witness box, which may
prejudice the client’s case. (5)

5. A lawyer must prepare his client for the ordeal in the witness-box. The idea is to appraise
you client about the problems that may arise and not inform him how to answer them.
The primary function of the lawyer is to place the defence version coherently and
chronically before the Court. The witness must be told to always tell the truth, take his
time and to answer a question especially during the cross-examination, to ensure that the
question is understood. The witness must be told that if he or she is unsure to ask that a
question be repeated, to only answer the question and not to volunteer facts, to use plain
language and not to lose his or her temper. The witness must also be told not to argue
with the cross-examiner and to make and keep eye contact with the court. Witnesses
should also be advised to stand whilst testifying and to be properly dressed.

The witness must be prepared for his testimony. The witness must know the
chronological order in which his testimony will be presented. It is essential that the
witness knows the facts that he has to testify about, in what form the questions will be put
and how to react to a particular question. The court situation should be stimulated, and
the witness should be taken through his evidence with due regard to the basic principles
of how to conduct the examination in chief. Possible problem areas such as, previous
inconsistent statements, family ties, improbabilities in the version of the witness etc must
also be addressed and explained. (10)

6. This may be a vexed question. If your client insists on doing so, you should dissuade
him, although the courts have often said that the sentence should not be more severe
because the accused has denied his guilt. Thus, the accused should not be given a more
lenient sentence as a reward for having pleading guilty. Some attorneys advise their
clients not to plead guilty as they believe that by calling upon the state to prove its case,
the client has nothing to lose and everything to gain. (3)
(25)
[50]

Regards,

Prof F Cassim
Department of Criminal and Procedural Law

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Tutorial Letter 201/1/2019

Techniques in trial and litigation

TLI4801

Semester 1

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2019-S1, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa. However, in order to
support you in your learning process, you will also receive some study material in printed
format.

BARCODE
 TLI4801/201/1/2019

1 INTRODUCTION
Dear Student

This tutorial letter contains the commentary to Assignments 01 and 02 for the 1st semester of
2019. Please read its content carefully. This tutorial letter is important for examination purposes.

2. FEEDBACK TO ASSIGNMENT 01 AND ASSIGNMENT 02

ASSIGNMENT 01: SEMESTER 01

UNIQUE NUMBER: 759670

Note: Some of the answers to the Questions in this Assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 3rd
edition (2012 LexisNexis). Students must not regurgitate what’s in the prescribed
textbook but write in their own words as far as possible! Students are also expected to
“identify the pertinent legal principles” and also to demonstrate how these principles
apply to the facts presented. To this extent, the student was required to also conduct
independent legal research. This essentially entailed perusing relevant legal sources in
order to advice the client accordingly.

1. (a) ANSWER:
Attorneys often advise their clients by letter or confirm their oral advice by letter. They
may explain counsel’s opinion or convey the substance of counsel’s advice to their client
by a letter. Therefore, the letter contains the contents of counsel’s advice or the
ramifications of such advice. However, it is unusual for advocates to give advice by letter.
Rather, the usual form or preferred form of counsel’s advice when it is not given face to
face in a conference, is by way of a memorandum or a written opinion. Legal advisers
who are employed by municipalities, insurers or other companies also give advice to their
employers (councils) or directors by way of letter or a memorandum.
It is important to note that advice given by letter differs from advice given by way of a
memorandum or a written opinion. Memoranda and written opinions are aimed at another
lawyer or a more astute or sophisticated client; advice by letter is usually aimed at the
“lay” client (average man/woman). Therefore, it is important that this letter be written in
such a way that the style and content of the letter provides the lay client with a clear
understanding of his or her options, how to proceed further with the matter and his or her
position in law.

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Also note: Advice by memorandum is more formal than a letter, and it is less formal than
a written opinion. Counselling offered by a memorandum is more formal than counselling
offered by a letter. The memorandum offers practical advice regards the way forward.
Advocates usually give advice by a memorandum when they address matters of
procedure, when they record advice given orally in consultation or when they engage in
the counselling process.
APPLICATION TO FACTS: In the light of the above, it is recommended that it is more
appropriate for counsel or the advocate to give advice to Ms Dolly Young by
memorandum as the advocate is furnishing advice to the instructing attorney (Ms Young).
(10)
(b) FORMAT OF MEMORANDUM OF ADVICE
NOTE: There must be a heading; paragraphs must be numbered, coherent, set in logical
order and the memorandum must be signed and dated. There should be an
introductory paragraph which sets out the client’s instructions, issue, problem
statement; body should discuss the question or problem in detail, reasoning or
argument, apply law to facts. The conclusion should offer practical advice and make
recommendations regards future steps.
Students may give a format style in table form or actually draft a full memorandum.
Both are acceptable. Students are expected to demonstrate that they know the basics,
they can draft a coherent legal document and they can apply the law AND their mind to
the given facts.

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ANSWER:
HEADING: MEMORANDUM OF ADVICE/ MEMORANDUM
FROM Insert name of any advocate/counsel and address.

Some students may insert this at the end which is

acceptable.
TO Insert name of Dolly Young Attorney and address.

Some students may insert this at the end which is

acceptable.

ISSUE Client’s instructions/query or problem raised is/are

addressed here:
Answer:
1. Ms Dolly Young has instructed Advocate XY to
furnish advice regards Mrs. Smiths’ case, namely to
investigate the claim for compensation for personal
injuries, damages sustained in the motor accident
and loss of support by herself and her children as a
result of the accident and death of her husband.
2. There is also a need to investigate any ensuing
claims (such as repairs to motor vehicle, estate
matter).

BODY Contains a discussion of the question or problem in

more detail/ Sets out facts in more detail, explains how
the problem arose having regard to the facts and the
legal principles applicable. Contains the reasoning or
argument: The analysis will lead to a conclusion or
opinion as to what the client can do.
Answer: What claims can Mrs. Smith bring?
1. Civil claims for compensation and damages and
criminal charges such as culpable homicide. As
natural guardian, Mrs. Smith can claim on behalf of
her children. She can pursue a claim against the
Road Accident Fund.
Refer to the appendix which is helpful.

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2. Which law is applicable? Substantive and procedural

law? If so why?
3. Discuss the impact of the criminal case against Joe
Soap.
4. Types of evidence available, such as eye witnesses,
documentary evidence.
5. Investigate contractual claims or Insurance claims.
6. Impact of medical reports.
7. Investigate maintenance claims on behalf of children.
8. Law of Succession. Obtain copy of Will.
9. Consider the impact of prescription on the claim if
possible.
[These are some of the claims/issues that can be
discussed. There is no “right or wrong answer” as long
as it makes sense and is properly substantiated. This
will lead up to the conclusion]

CONCLUDING The answer to client’s question or problem and

POINT/S recommendations regards future steps should be
inserted here:
Answer:
1. Mrs. Smith can bring/pursue a claim for
compensation for personal injuries and damages and
loss of support for herself and her children by way of
combined summons in the High Court.
2. The impact of the medical reports, insurance claims
and repairs to the vehicle will determine the quantum
(therefore, require documentary evidence to prove
this).
3. The fact that Joe Soap has been charged with
culpable homicide will strengthen Mrs. Smith’s civil
claim. Mrs.
4. Smith needs a copy of the will for winding up of the
estate. [some of the steps/advice]

Sign and date

(10)

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2 NOTES: Students need to discuss mediation as a strategy and ascertain whether it is an

appropriate strategy having regard to the facts. They may also refer to principles
extracted from the rules for court-annexed mediation (such as purpose, aims etc).
ANSWER:
Mediation has been described as “assisted negotiation”. It takes place under the
guidance of a mediator. The purpose of mediation is to seek agreement on a possible
solution to the problem.
Role of mediator: Is that of a facilitator. Sort of a “go-between” who structures the
discussion, clarifies the viewpoints of the parties, encourages the parties to explores
alternatives and guides them to a mutually acceptable solution.
Advantages: The parties participate directly in the process and the final decision rests
with them. Mediation process can resolve legal and non-legal disputes. Mediation can be
quick, inexpensive, flexible, informal, maintain privacy and confidentiality. The mediator is
an independent third party who helps the parties find a solution.
Disadvantages: The mediation process requires the co-operation of both parties. It is
not available in the following disputes involving status, such as proceedings for divorce,
sequestration, liquidation or rehabilitation orders. The outcome of a mediation can only
be enforced through court proceedings.
Circumstances when mediation are suitable: Examples where matters are appropriate
for mediation: contractual claims, motor-vehicle collision and other damage claims,
neighbourhood disputes and family disputes; parties who are in a continuing or long-term
relationship such as husband and wife, employer and employee, landlord and tenant;
disputes between partners and joint owners of properties. Mediation is regarded as a
less destructive way to resolve disputes in these areas of practice.
Circumstances when mediation is not suitable: disputes involving purely legal
questions or complicated questions of fact or credibility, where one of the parties has an
ulterior motive, where one of the parties is vulnerable for example, in a family dispute
where there are allegations of abuse; where there is a dispute based on fundamental
religious or ethical beliefs.
Application to facts: Mediation is appropriate as this is a motor vehicle accident and it is
a less destructive way to resolve the dispute. The aim of parties is to negotiate with each
other with the aid of a mediator to find a mutually acceptable agreement. Some students
may state that mediation is not appropriate as there are many claims arising from the
accident, and this involves complicated facts and further investigation; this will require
additional evidence such as expert evidence. Both approaches are acceptable as long as
the answer is properly motivated. Therefore, either approach can be conveyed to Ms
Young. (15)

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3 A pre-trial conference in terms of Rule 37 can be used at least 6 weeks before the trial
date. The objects of a pre-trial conference are inter alia, to curtail the duration of a trial,
narrow down the issues between the parties, curb costs and facilitate settlements. These
are some of the matters or questions that can be discussed at such a conference:
 Whether there has been full disclosure of the relevant documentary evidence by both
parties?
 Whether there is any issue regarding admissibility of any document which could be
resolved by agreement?
 Whether a joint or agreed bundle of documents could be prepared?
 Could the status of any documents be agreed upon?
 Is a joint inspection necessary? Are any plans or photographs relating to the scene in
dispute and could those disputes be eliminated by appropriate admissions?
 Could the parties jointly prepare demonstrative exhibits for the assistance of the court
and the witnesses?
 Whether there is a need for an interpreter and if so, the choice and terms?
 Whether there a need to use expert witnesses?
 What admissions of fact can be made by either side?
 How the case can be settled?
 Whether there is recourse to an alternative dispute resolution method to resolve the
matter if the case cannot be settled?

Note: Some students may refer to matters discussed in Rule 37(6)(a)-(k) of the Uniform Rules.
This is also acceptable.

Aim of pre- trial conference: valuable tool of preparation for the trial.
How is it appropriate having regard to the given facts: If one prepares for a trial: before one
goes to trial as it curtails the duration and costs. Therefore, it is appropriate for Ms Young to
use a pre-trial conference regarding her client’s case as this will assist with narrowing down
issues and curtailing costs and time for her client. (15)

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ASSIGNMENT 02: SEMESTER 01

UNIQUE NUMBER: 675259

The answers to this question are to be sourced from Maharaj, A Confident Criminal
Litigation (LexisNexis :2010) Chapter Title: Arrest and Bail: 1-6

Question 1

1. (a) It should be noted that a Director of Public Prosecutions (hereinafter, “DPP”) or a

prosecutor authorized in writing by a DPP may in respect of offences referred to in
Schedule 7 and in consultation with the police investigating officer, authorize the release
of an accused on bail (see section 59A(1) of the Criminal Procedure Act 51 of 1977,
hereinafter “CPA”). Section 59A of the CPA allows the prosecutor to authorize the
release of an accused person on bail for any the following offences listed in Schedule 7
of the Act:

 Public violence;
 Culpable homicide;
 Bestiality
 Assault involving the infliction of grievous bodily harm;
 Arson;
 Housebreaking, whether under the common law or a statutory provision, with intent to
commit an offence;
 Malicious injury to property;
 Robbery, other than a robbery with aggravating circumstances, if the amount involved
in the offence does not exceed R20 000,00;
 Theft and any other offence referred to in section 264(1)(a),(b) and (c), if the amount
involved does not exceed R20 000,00
 Any offence in terms of any law relating to the illicit possession of dependence-
producing drugs;
 Any offence relating to extortion, fraud, forgery or uttering if the amount involved in the
offence does not exceed R20 000; and
 Any conspiracy, incitement or attempt to commit any offence listed in this Schedule

However, prosecutorial bails are not granted in respect of infrastructure-related offences.

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Note: The following constitutional provisions are relevant to pre-trial release:

 Section 12(1)(a) of the Constitution provides that everyone has the right not to be
deprived of freedom arbitrarily or without just cause.
 Section 35(1)(f) of the Constitution provides that everyone who is arrested for allegedly
committing an offence has the right to be released from detention if the interests of
justice permit, subject to reasonable conditions.
 Section 35(3)(h) of the Constitution provides that an accused is in the absence of a
conviction by a court of law, also constitutionally presumed to be innocent.
 Section 39(2) of the Constitution which provides that a court must promote the spirit,
purport and objects of the Constitution.
 Section 60(1) of the CPA provides for the release of a person on bail if the court is
satisfied that the interests of justice so allow.

Application to facts:

Murder refers to the unlawful and intentional killing/causing the death of another human being
whereas, culpable homicide involves the unlawful and negligent killing/causing of death of
another human being. Prosecutorial bail may not be applied for the release of the accused, as
the charge of murder does not fall within the list of offences listed in Schedule 7 of the CPA,
which provides for prosecutorial bail. Therefore, prosecutorial bail cannot be applied for in this
instance having regard to the facts.

Therefore, it must be established whether Y has the right to be released from jail/detention if the
interests of justice allow it. Bail is regarded as a compromise or striking a balance between the
interests of society and the liberty of an accused. The court may consider the strength of the
state’s case against the accused, when deciding if the accused would evade trial, be a fugitive
from justice or tamper with evidence if released. The accused’s attorney must persuade the
court that the release of the accused will not be detrimental to the interests of justice. It involves
a value judgment of what is fair and equitable having regard to all circumstances. (15)

1. (b) The CPA mentions various factors that a court may take into account to determine
whether bail should be granted or not. Thus, s 60 (4) (a) – (e) lists factors that a court may
consider that the interests of justice do not permit such release on bail. The interests of
justice do not permit release in the following circumstances/grounds:

(a) where there is the likelihood that the accused if released on bail, will endanger the safety of
the public or any particular person or will commit a Schedule 1 offence; or
(b) where there is the likelihood that the accused, if released on bail, will attempt to evade his or
her trial; or
(c) where there is the likelihood that the accused, if released on bail, will attempt to influence or
intimidate witnesses or to conceal or destroy evidence; or
(d)where there is the likelihood that the accused, if released on bail, will undermine or
jeopardise the objectives or the proper functioning of the criminal justice system, including the
bail system; or
(e)where in exceptional circumstances there is the likelihood that the release of an accused will
disturb the public order or undermine the public peace or security.

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The focus at the bail stage is to decide whether the interests of justice permit the release of the
applicant pending trial, which entails, in the main, protecting the investigation and prosecution of
the case against any hindrance. (5)

2. The answers to this question are to be sourced from Palmer, R & McQuoid-Mason, D
Basic Trial Advocacy Skills: Chapter 1: 3-29

(a) The factors to be considered in an application for recusal are as follows:

Trial lawyers should use utmost tact when approaching a judicial officer to recuse
himself/herself as judicial officers are only human, and they don’t like to be told in open court
that they made an unfair or biased decision. If a refusal is based on kinship or a previous
connection with the decision, then it is advisable that the lawyer point out such relationship or
connection to the judicial officer in chambers before raising the matter in open court.

Factors affecting an application for refusal were also set out by Schreiner JA in R v Silber 1952
(2) SA 475 (A). They comprise the following factors:

 The repetition of protestations of deep respect will not make the submissions more
convincing if the effect of the words is to undermine the honour and dignity of the court.
 The judicial officer who is being asked to recuse himself or herself should be informed in
advance of such an application as a matter of professional courtesy. This is usually done
informally by requesting the judicial officer to receive both counsel in chambers where the
person wishing to make the application indicates tactfully the fact and grounds of the
application. The officer concerned then has time to consider the request and where
appropriate to arrange for someone else to hear the case.
 Where the lawyer moves for recusal, the other counsel should remain completely neutral
because it is essentially a matter between the first lawyer and the bench. The other lawyer
should not become involved and he or she should state that he or she will abide by the
court’s ruling.

The trial lawyer must try and avoid making a premature assessment when deciding to apply for
a refusal such as hastily acting on the feeling that the court has formed an adverse opinion of
his or her client etc. Rather trial lawyers should ensure that they are right before making an
application for refusal. They should not insult the court with the result that they may be
susceptible to a contempt of court order. Advocates should never use their position to
undermine the dignity and reputation of the court. (10)

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(b) Having regard to the facts: X should have used tact to request the recusal of the judicial
officer, Z. Approaching Z in a public place (well-known supermarket) does not display tact
or professionalism. Lawyers must also exercise due care to avoid using words which may
reflect adversely upon the impartiality of the court. It would have been advisable for X as a
matter of professional courtesy to rather advise the bench beforehand about the pending
application in order to give the judicial officer (Z in this instance) an opportunity to withdraw
from the case on his or her initiative. X should also have requested Z to receive him and
the opposing party’s lawyer/legal representative in chambers where X should have made
his application for recusal instead of using a public forum. X should also have avoided
acting prematurely by approaching Z on the basis that Z has made several unfavourable
rulings against him. He must rather make sure that his assertions are right and maintain
his objectivity before acting prematurely as he did in this instance. (5)

Question 2

The answers to this question are to be sourced from Maharaj, A Confident Criminal
Litigation (LexisNexis: 2010) Chapter 1: 7-33.

Plea of guilty in terms of s 112 (2)

Students are expected to draft a plea of guilty in terms of s 112 (2) having regard to the
facts.

Section 112 (2) of the CPA represents one of the instances in which a guilty plea may be
conducted by the court.

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 TLI4801/201/1/2019

IN THE MAGISTRATES COURT FOR THE REGIONAL DIVISION OF GAUTENG HELD AT

PRETORIA
In the matter between:

THE STATE

And

Violent Mashaya (THE ACCUSED) Case no:

25/164/2019

PLEA IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE ACT 51 OF 1977

(AS AMENDED)

1. I confirm that I am the accused in this matter, and that I have read the charge sheet and I
understand the charge that has been preferred against me.

2. I plead guilty to the charge of assault with intent to do grievous bodily harm freely and
voluntarily and without any undue influence.

3. The facts which I plead guilty are as follows:

On 30 February 2018, I went into the local spaza shop “Benny’s general store” in Esselen
street, Sunnyside, Pretoria to purchase some groceries. I had R 100 in my pocket to buy milk,
cheese, bread and a can of sardines. I selected the items and placed them in my basket. As I
was approaching the till to pay for my purchases, I was accosted by one Victim Skepsel who
was wielding a knobkerrie, and he appeared to be intoxicated. He accused me of maliciously
spreading rumours about him. I tried to step out of his way but to no avail.

A physical confrontation ensued with the result that I used my fists to defend myself against
blows inflicted by Victim on my person by using his knobkerrie. I assaulted Victim using my fists
and I struck his head with my clenched fists. He fell to the ground. Victim was rendered
unconscious. He was taken to the local hospital where I later learnt that he died as a result of
the blow to his head.

The police arrested me at my house in 44, Linken street, Sunnyside after the incident. They
charged me with murder and took me to the local police station where I was detained.

4. I know that my actions were unlawful and wrong. I had no intention of causing the death of
Victim Skepsel. I was defending myself against his attack with the knobkerrie. I accept that my
assault caused him grievous bodily harm, and that the blow to his head with my fists may have
inadvertently contributed to his death. I accept that I have no defence for causing the victim
grievous bodily harm.

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Signature of accused ………………………………………………………………………………………

Full names ………………………………………………………………………………………………….
Place ………………………………………………………………………………………………………...
Date …………………………………………………………………………………………………………

Signature of legal representative …………………………………………………………………………

Full names ………………………………………………………………………………………………….
Place ………………………………………………………………………………………………………...
Date …………………………………………………………………………………………………………

Signature of Senior Prosecutor …………………………………………………………………………

Full names …………………………………………………………………………………………………
Place ……………………………………………………………………………………………………….
Date …………………………………………………………………………………………………………
(15)
[50]

Regards,

Prof F Cassim
Department of Criminal and Procedural Law

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 lOMoAR cPSD| 8431879

LI4801/201/2/2020

Tutorial Letter 201/2/2020

Techniques in trial and litigation

TLI4801

Semester 2

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2020-S2, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa.

 lOMoAR cPSD| 8431879

1 INTRODUCTION
Dear Student

This tutorial letter contains the commentary to Assignments 01 and 02 for the 2nd semester of
2020. Please read its contents carefully. This tutorial letter is important for examination
purposes.

Note: This commentary is merely a guideline and it may well contain brief answers for some
questions. Therefore, students need to elaborate in their answers to achieve good marks. Your
answers for both assignments must not exceed 15 pages (including bibliography and
declaration of authenticity).

2. FEEDBACK TO ASSIGNMENT 01 AND ASSIGNMENT 02

ASSIGNMENT 01: SEMESTER 02

UNIQUE NUMBER: 771134

Note: Some of the answers to the questions in this assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 4th
edition (2019 LexisNexis). Students must not regurgitate what’s in the prescribed textbook but
write in their own words as far as possible! Students are also expected to “identify the pertinent
legal principles” and to demonstrate how these principles apply to the facts presented. To this
extent, students are required to also conduct independent legal research. This essentially
entails perusing relevant legal sources in order to advice the client accordingly.

1.(a) Type of appropriate summons:

There are three types of summons used in practice:
 A combined summons is used where the claim is unliquidated and evidence has to be
presented, whereas a simple summons is used where the claim is clear and ascertainable
or liquidated.
 A provisional sentence summons is used where the claim is liquid and it reflects an
established monetary debt such as a cheque, and it will not be applicable here.
This is an action for personal injuries sustained as a result of collision with a taxi. The claim
against Mr Joe Soap will therefore be one for personal injuries and damages (delictual action).
Mr Smith will therefore use a combined summons as the action involves an unliquidated claim
for damages and personal injuries, and the quantum has to be proved or determined. The
plaintiff’s claim can also be brought against the Road Accident Fund (“RAF”).
Note: Drivers, passengers, pedestrians, cyclists and motorcyclists can all claim from the RAF if
they were not solely responsible for the accident.
Source: Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019) chapters 5-
6 (4)

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TLI4801/201/2/2020

1(b) Citing or describing the parties in the pleading (particulars of claim):

The Plaintiff is Mr Alan Smith, an adult male, a teacher and avid hiker (insert any occupation),
who resides at.................. (insert any street address).
The first Defendant (first) is Mr Joe Soap, an adult male, a taxi driver or owner (insert any
occupation) who resides at…… (insert any street address).

The second defendant is the Road Accident Fund, a state insurer established by law or
statute, the Road Accident Fund, 56 of 1996 (as amended), and has its offices at.. (insert any
street address)/registered office of principal place of business at… (insert any street address).

Source: Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019) chapter 5
(6)
1(c) Plaintiff’s prayer:

In the premise the plaintiff claims judgment against the defendant/defendant’s

driver/insured/uninsured driver for:
1) Payment of the sum of R 700 000,00.
(2) Interest in the sum claimed in terms of section 2 of Act 55 of 1975.
(3) Costs of suit.
(4) Further/alternative relief.
Source: Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019) chapter 6
(4)

2. Relevance of heads of arguments:

Heads of argument are important to the process of persuasion. The heads of argument contain
the summary of the argument to be presented to the appeal court. They allow the
advocates/counsel to bring the issues and the points for oral argument into sharper focus for the
judges. The heads of arguments should be structured in order to be persuasive regards the
facts and points of law, and they should be irresistible. This is the first opportunity to bring the
judges around to your client’s side; so counsel must make use of the opportunity to arrange the
facts and points of law so that the conclusion in your client’s favour is inevitable or clear. The
heads of argument must demonstrate why the judgment is wrong and show the best points in
your client’s favour and the weaknesses in the opposing party’s defence.
Source: Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019) chapter 25
(6)
3. Arbitration involves a procedure by which a dispute may be determined without
recourse to the courts, and it is mainly used as a result of a provision in the contract between
the parties to the dispute. Arbitration is most suitable for commercial disputes such as building
or construction contracts and maritime claims. Cases which cannot be resolved by arbitration
include matters involving the status of a person or company, such as an action for a decree of
divorce, paternity suits, sequestration, liquidation applications and applications for rehabilitation.

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 lOMoAR cPSD| 8431879

Therefore, arbitration will not be suitable regards the given facts: divorce proceedings involving
minor children or a custody dispute.

Mediation has been described as “assisted negotiation”, and it takes place under the guidance
of a mediator. The purpose of mediation is to seek an agreement on a possible solution to the
problem. The role of mediator is that of a facilitator or a “go-between”, who structures the
discussion, clarifies the viewpoints of the parties, encourages the parties to explores
alternatives and guides them to a mutually acceptable solution.
Circumstances when mediation is suitable: contractual claims, motor-vehicle collisions and
other damage claims, neighbourhood disputes and family disputes, parties who are in a
continuing or long-term relationship such as husband and wife, employer and employee,
landlord and tenant and disputes between partners and joint owners of properties. Mediation is
regarded as a less destructive way to resolve disputes in these areas of practice. Note:
Mediation is also suitable for custody disputes or marital disputes.
Circumstances when mediation is not suitable: disputes involving purely legal questions or
complicated questions of fact or credibility, where one of the parties has an ulterior motive,
where one of the parties is vulnerable for example, in a family dispute where there are
allegations of abuse; where there is a dispute based on fundamental religious or ethical beliefs.
Therefore, I would advise my client to use mediation as an ADR strategy to resolve the custody
dispute of the minor children as it is the most appropriate strategy available in marital disputes
or custody disputes.
Note: The above answer is detailed.
Source: Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019) chapter 3
(4)
4. Measures to improve access to justice:
The Legal Practice Act, 2014 seeks to ensure that legal services are accessible to the ordinary
citizens by introducing the following measures:
 a mechanism to address fees charged by legal practitioners for services rendered so that
the fees are easily affordable by ordinary citizens.
 the rendering of community service by candidate legal practitioners and practicing legal
practitioners.
 measures to address equal opportunities for all aspiring legal practitioners so that the legal
profession reflects the demographics of the general population.
Note: Students need to focus on measures to improve access to justice by the general public.
Source: Legal Practice Act 28 of 2014. (6)
Total: [30]

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 lOMoAR cPSD| 8431879

TLI4801/201/2/2020

ASSIGNMENT 02: SEMESTER 02

UNIQUE NUMBER: 831207

1. Plea of not guilty in terms of s 115:

IN THE MAGISTRATES COURT FOR THE REGIONAL DIVISION OF GAUTENG HELD AT

PRETORIA
In the matter between:

THE STATE

And

Violent Masinga (THE ACCUSED) Case no: 25/164/2020

PLEA IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977 (AS
AMENDED)

1. I confirm that I am the accused in this matter, and that I have read the charge sheet. I
understand the charge that has been preferred against me.

2. I plead not guilty to the charge of murder.

3. The facts which I plead not guilty to are as follows: On 28 February 2020, I went into the local
spaza shop “Benny’s general store” in Kendel Street, Sunnyside, Pretoria to purchase some
groceries. I had R 100,00 in my pocket to buy milk, cheese, bread and a can of sardines. I
selected the items and placed them in my basket. As I was approaching the till to pay for my
purchases, I was accosted by one Victim Stevens who was wielding a knobkerrie, and he
appeared to be intoxicated. He accused me of sleeping with his girlfriend. I tried to step out of
his way but to no avail.

A physical confrontation ensued as we were leaving the shop. I used a baseball bat lying close
by to defend myself against the attack by Victim Stevens who wielding the knobkerrie, and it
struck Victim’s head. He fell to the ground bleeding profusely from his head. Victim was taken to
the local hospital where I learnt later that he died as a result of his injuries.

The police arrested me at my house at 44, Linken street, Mamelodi West after the incident.
They charged me with murder, and they took me to the local police station where I was
detained.

4. I deny that my actions were unlawful and wrong as I acted in self-defence. I had no intention
of causing the death of Victim Stevens. I was merely defending myself against his attack with
the knobkerrie.

5. I make the following admissions that may be recorded as such in terms of section 220 of Act
51 of 1977:

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 lOMoAR cPSD| 8431879

One: I assaulted one Victim Stevens with a baseball bat which I picked up in the spaza shop
“Benny’s general store”.

Two: The victim’s head was struck with the baseball bat which may have inadvertently
contributed to his head injuries and death.

Signature of accused ……………………………………………………………………………………

Full names ……………………………………………………………………………………………….

Place
………………………………..…………………………………………………………………………...

Date ………………………………………………………………………………………………………

Signature of legal representative ………………………………..……………………………………

Full names ……………………………………………………………………………………………….

Place ……………………………………………………………………………………………………...

Date …………………………………………………………………………………………………………

Signature of Senior Prosecutor …………………………………………………………………………

Full names …………………………………………………………………………………………………

Place ……………………………………………………………………………………………………….

Date …………………………………………………………………………………………………………

Note: Students may use their own facts to supplement the given facts. A charge of murder can
be brought in the High Court or the regional magistrate’s court.

Source: Maharaj, A Confident Criminal Litigation (2010) chapter 1: The trial

(10)

2. The duty to inform the court of prior convictions:

The attorney is obliged to inform the court of his/her client’s previous convictions (if any) or any
pending cases and whether the client has been released on bail in respect of those charges
(see section 60(11B) (a) (i)(ii) of the Criminal Procedure Act, 1977). The failure to disclose
previous convictions or pending cases is a criminal offence (see section 60(11B) (d)). Therefore,
the defence attorney is obliged to inform the court which is “hearing” the bail application that his

6
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TLI4801/201/2/2020

client Violent Masinga has a previous conviction of housebreaking, and whether his client has
been released on bail in respect of the previous charge.

Source: Maharaj, A Confident Criminal Litigation (2010) chapter 1: Arrest and Bail (4)

3. Attorney’s duty to inquire into his/her client’s version:

There is, in principle, no duty on trial lawyers to enquire as to whether their clients are telling the
truth or not. However, where the instructions or other information are such as to cause the
lawyers to doubt the reliability of such information, they must accordingly investigate the matter
further. Where possible, the lawyer must check the truth of what his client tells him, to the extent
that such statements will be relied upon by the court. Lawyers should also not mislead the court
and they should act ethically.

Sources: Palmer et al, Basic Trial Advocacy Skills: chapter 1; Marnewick CG Litigation Skills
for South African Lawyers 4th edition (2019): chapter 14 and J Engelbrecht Morris Technique in
Litigation (2010): chapter 19. (6)

4. Duty of lawyers towards witnesses:

According to the Bar Rules on Ethics and the Law Society Rules, attacking the character of a
witness should not be undertaken unless there are firm instructions and good grounds for such
a course of action. There are limits to the extent to which the character of a witness can be
attacked. Trial lawyers have inter alia, the following duties towards witnesses: a duty of
courtesy, the duty not to harass or badger witnesses, the duty not to make unsubstantiated
attacks on a witness’s character and the study to keep defamatory statements within the
qualified privilege parameters. Witnesses should be treated with courtesy and respect as it is
more likely that counsel will get the information that he or she requires from the witness if he or
she is polite (S v Azo 1974(1) SA 808 (T)). An argumentative attitude will likely elicit less
information and irritate the court. Lawyers should also refrain from harassing, badgering or
bullying witnesses. This may also not elicit the witness’s co-operation and may likely irritate the
court. It is better to expose inconsistencies in a witness’s evidence through polite, carefully
structured questioning. It is also unbecoming of counsel to abuse witnesses. According to the
General Council of the Bar, questions affecting the credibility of the witness by attacking his/her
character although irrelevant, should not be put unless counsel has reasonable grounds to
believe that the imputations on character are well-founded or true. It is also unethical for a
lawyer to put questions to a witness simply to insult and annoy the witness. A trial lawyer’s
defence of qualified privilege only extends to statements which are pertinent or germane to the

7
 lOMoAR cPSD| 8431879

issue and which have some foundation in the evidence or circumstances surrounding the trial
(Moolman v Slovo 1964(1) SA 760 (W)).

From the facts, Alex’s conduct is unbecoming as it appears that he is abusing, harassing, and
disrespecting the witness with his accusations and choice of language. He will elicit more
information if he employs courtesy and politeness. Moreover, treating the witness with courtesy
is not inconsistent with skilful, powerful and penetrative cross-examination. Therefore, witnesses
should be treated with respect. Whilst a lawyer is entitled to be firm, he or she should never be
rude (which applies to Alex). It is also not appropriate or good advocacy for Alex to call the
witness a liar. Therefore, Alex is not conforming to good advocacy rules laid down by the Bar
Council and Law Society, and his conduct may well be described as unprofessional and
unbecoming.

Sources: Palmer et al, Basic Trial Advocacy Skills: chapter 1 and Marnewick CG Litigation
Skills for South African Lawyers 4th edition (2019): chapter 18. (10)

Total: [30]

Regards,

Prof F Cassim (compiled by)

Mr B Mashabane
Department of Criminal and Procedural Law

Unisa/kr

8
 TLI4801/201/2/2018

Tutorial Letter 201/2/2018

Techniques in trial and litigation

TLI4801

Semester 2

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2018-S1/S2, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa. However, in order to
support you in your learning process, you will also receive some study material in printed
format.

BARCODE
1 INTRODUCTION
Dear Student

This tutorial letter contains model answers to Assignments 01 and 02 for the 2nd Semester of
2018. Please read its content carefully.

MEMORANDUM

Assignment 01: Semester 02

NB: Some of the answers to the Questions in this Assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 3rd
edition (2012 LexisNexis).

1. Particulars of Claim
According to the merits presented in the statement, no disputed facts are set out
explicitly. However, in litigation certain facts are usually contested. The student can set
out disputed facts in any manner that he or she chooses. The marks awarded in this
regard are generally guided by the analyses and reasoning which is proffered by the
student in answering the question.
You were required to assess all losses Anne Smith suffered in your particulars of claim. In other
words, your particulars of claim must include all general and special damages, see Evins v
Shields Insurance Co Ltd 1980 (2) SA 814 (A). In this respect, claims for Anne Smith’s children
would have to be filed in the same legal action, where Anne Smith will stand as a guardian
since her children’s age will deprive them of the capacity to sue. Thus, it was essential for
students to consider the losses suffered or likely to be suffered by Anne Smith in totality. It is
also necessary for students to draft particulars of claim in a manner that would be acceptable to
a court of law. Remember, this course is designed to prepare you in respect of the process of
litigation, and to enable you to gain practical experience in filing claims at a court of law. We
also advised you to be imaginative, and to invent some of the information. Hence, we moved
the accident from Durban to Pretoria. So, we will be mindful of any relevant additions. The
particulars of claim for Anne Smith should have been drafted in the manner below.

North Gauteng High Court

Case no 122 [2018]

Between
Anne Smith FIRST PLAINTIFF
Anne-Elise Smith (guardian Anne Smith) SECOND PLAINTIFF
James Andrew Smith (guardian Anne Smith) THIRD PLAINTIFF
And

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 TLI4801/201

Road Accident Fund (RAF) DEFENDANT

PARTICULARS OF CLAIM

1. The First Plaintiff is, an adult female person, Anne Smith who was born on 02 February
1970, an unemployed widow currently residing at 9 Van Wouw St, Groenkloof, Pretoria.
1.1 The Second Plaintiff is, a female person who is a minor, born on the 17th of April
2005, and is represented by the first plaintiff as guardian.
1.2 The Third Plaintiff is, a male person who is a minor, born on the 23rd of August 2009,
and is also represented by the first plaintiff as guardian.
2. The deceased, Mr John William Smith, was born on the 6th of September 1968, and he
married Anne Smith on the 14th of February 2003. The first and the second plaintiffs were
conceived of that marriage.
3. The Defendant is ROAD ACCIDENT FUND, (“the RAF”) a body entitled to sue and be
sued in its own name by virtue of the provisions of the Road Accident Fund Act 56 of 1996 (the
Act) with its principal place of business situated at 2, Eco Glades Office Park, 420 Witch-Hazel
Ave, Centurion, Pretoria and 38-44 Ida St, Lynnwood Glen, Pretoria.
4. The ROAD ACCIDENT FUND is liable to handle claims arising from motor collision
where the identity of neither the owner nor the driver has been established.
5. On or about the 01st of January 2017 and at intersection of Main street and Long street,
in Waterkloof, Mr Smith and his two children were passengers in a certain motor vehicle, a
Honda with registration letters and numbers AA 01 BB GP driven by Mrs Smith when it collided
with a certain Toyota Fortuner with registration number ZZ 01 XX GP driven by Mr Joe Soap
(Hereinafter referred to as the insured driver). The collision between the two vehicles resulted in
the death of Mr Smith, and injuries to the first, the second and the third plaintiffs.
6. The aforementioned collision was caused solely as the result of negligent driving of the
insured driver in one or more of the following:-
6.1. He failed to keep a proper look out
6.2. He failed to avoid the collision when he could and should have
done so.
6.3. He was traveling at an excessive speed in the circumstances.
6.4. He failed to obey the rules of the road.
6.5. By failing to exercise proper control over the insured vehicle.
7. The deceased owed the plaintiffs a duty of support, as he was the sole breadwinner. The
deceased would have continued to support the plaintiffs and the plaintiffs needs that support.
The Plaintiffs loss of support can be deduced to be:

3
7.1. The loss of support that the First Plaintiff would suffer as a result of the death of Mr Smith
is in the amount of R 959 999,94
Calculations: Mr Smith received an annual salary of R35 000 × 12 = R 420 000
This amount has to divided by 2 since half of the deceased salary was used for support, thus R
210 000 represent the amount that Mrs Smith would have used to support her family if it was
not for the death of the breadwinner. However, section 17(4)(c) of the RAF Act 56 of 1996, limits
the amount of maintenance or support to R160 000 per annum. R160 000 must be divided by
three to deduce the loss of support that the first plaintiff would suffer (160 000/3 = R 53333,33).
This amount (R 53333,33) would have to be multiplied by the number of years of life expectancy
of the first plaintiff. Let’s assume the plaintiff’s life expectancy to be 70 years, therefore from the
accident henceforth the plaintiff would live 23 years. But Mr Smith would have retired at the age
of 65 years, which means (2017 – 2035) 18 more years after his death. Thus the deceased
would have supported the plaintiff 18 more years. Accordingly 18 × 53 333,33 = R 959 999,94.
7.2 The loss of support that the Second Plaintiff would suffer as a result of the death of Mr
Smith is in the amount of R 319 999,98.
Calculations: The second plaintiff loss of support per annum amounts to 53 333,33 (as already
calculated). Although, the second plaintiff was badly injured, according to medical reports she
will recover and lead a normal life. This then means that upon reaching the age of majority (18
years) the second plaintiff according to the law can no longer claim support or maintenance,
(see Langa v Road Accident Fund (2014/67644) [2016] ZAGPPHC 876 (22 September 2016)).
At the time of Mr Smith death the second plaintiff was approaching the age of twelve. This
means that the second plaintiff would have depended on the support from the deceased for 6
years. Consequently, the loss is R 53 333,33 × 6 = R 319 999,98.
7.3 The loss of support that the Third Plaintiff would suffer as a result of the death of Mr Smith is
in the amount of R 959 999,94.
Calculations: The third plaintiff is medically declared to be paralyzed for life. The amount of loss
of support is calculated taking life expectancy of both parties into account. Mr Smith life
expectancy is 70 years, but he would have worked until the age of 65. This means that he
would have supported the plaintiff for (2035 – 2017) 18 more years. The life expectancy of the
third plaintiff has been shortened to 40 years. Mr Smith, is estimated, would have worked for 18
more years if it wasn’t for the accident, while the third plaintiff, is estimated, will live for (2044 –
2017) 27 years. The shorter of the two estimates should be used to determine loss of support.
Thus 18 × 53 333,33 = R 959 999,94.
8. As a result of the said collision, the first plaintiff sustained multiple bodily injuries:
8.1. A broken leg (left tibia and fibula)
8.2. Head injuries (loss of consciousness, concussion, and permanent facial scarring)
8.3 Bruises and abrasions on the right side of the body
8.4 The aforesaid injuries sustained by the first plaintiff in the collision amounts to damages
of R 263 920 (facial disfigurement 33 000; concussion 94 000; broken leg 120 000; body
bruises 16 000 and shoe alignment for shortened leg 40 × 23 (life expectancy)).
9. As a result of the said collision, the second plaintiff sustained multiple bodily injuries:
9.1. A broken pelvis

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9.2 The aforesaid injuries sustained by the first plaintiff in the collision amounts to damages
of R 623 360 (pelvis 578 000 and physio-therapy 420 × 3 × 4 × 9).
10. As a result of the said collision, the first plaintiff sustained multiple bodily injuries:
10.1. Partial paralysis on the left side of the body
10.2. Head injuries (involving loss of consciousness and permanent loss of some intellectual
and motor function)
10.4 The aforesaid injuries sustained by the first plaintiff in the collision amounts to damages
of R 2 741 000 (hemiplegia 1 523 000; brain injury 1 176 000 and therapy 1 750 × 24).
11. As a result of injuries sustained in the accident, the Plaintiffs
11.1. Experiences pain and suffering.
11.2. Suffered loss of amenities of life.
11.3. Suffered loss of earning capacity.
11.4. Were disfigured.
12. The nature, effect and duration of pain and suffering, loss of amenities of life,
disfigurements and disability are set out in the medical legal reports.
13. A claim for compensation as prescribed by Section 24 of the Act has been submitted to
the Defendant on the 03 October 2017 and the requirements of the Act and regulations have
been complied with insofar as may be necessary.
14. The Plaintiffs have suffered serious injuries as contemplated in the Act and are
consequently entitled to damages for non-pecuniary loss, as provided in the Act and has
complied with the peremptory procedures prescribed by the Act and the Regulations.
15. Notwithstanding the expiration of 120 days from the date on which the Plaintiff lodged the
claim the Defendant has not compensated the Plaintiffs for the aforesaid damages or any part
thereof.
16. In the premises the Defendant is liable to compensate the Plaintiffs the Sum of R 5 868
279,9 which amount or any portion thereof the Defendant has failed to pay.

WHEREFORE the Plaintiffs prays for judgment as follows: -

1. Payment of the sum of R 5 868 279,9

2. Interest on the aforesaid amount according to law
3. Costs of suits;
4. Further and / or alternative relief.

DATED AT PRETORIA ON THIS THE 26th FEBRUARY 2018.

5
Counsel for the Plaintiff Council for the Defendant
(35)

2. Advice on evidence
Please note that there is no “right” and “wrong” answer in respect of the answer which
may be proffered by the student this regard. In other words, none of the advice
discussed below may be said to be the most appropriate. Marks shall be awarded
according to the student’s arguments and reasoning. The answers for the question are
sourced from various authorities including uniform rules of court.

(2) Advising Mrs Smith on evidence of loss of support would require you to considered
circumstances that warrants her to seek such compensation. Injuries sustained during collision
may rendered the plaintiff incapable of supporting themselves, similarly the plaintiff may not be
equipped to fend for themselves after the death of the breadwinner. The information evidencing
such losses would be vital in convincing the court to award damages.
When a plaintiffs seek compensation for loss of support, they must indicate that indeed they are
unable to support themselves. The relationship between the plaintiff and the deceased must be
established as a point of departure. This is essential to establish the degree of dependency. In
this instance, a marriage certificate or any sort of evidence that can establish the relationship
between the plaintiff and the deceased must be furnished. The plaintiff must prove that he, she
or they were depended on the deceased for support. For instance, it is essential for the plaintiff
to indicate that he/she is not skilled enough to generate sufficient income to support him/herself
upon the death of a breadwinner, or the injuries sustained in the accident precludes him/her
from earning in the future. This may require that additional evidence that demonstrates the
plaintiff incapacity to support him/herself be submitted. Therefore, any party to proceedings in
which damages or compensation in respect of alleged bodily injury is claimed shall have the
right to require any party claiming such damage or compensation, whose state of health is
relevant for the determination thereof to submit to medical examination. It is likely that RAF will
submit a notice to the plaintiff indicating that the injured will have to undergo medical
examination and specifying the nature of the examination required, the person or persons by
whom, the place where and the date (being not less than fifteen days from the date of such
notice) and time when it is desired that such examination shall take place, and requiring such
other party to submit himself for examination then and there. The person whom it is required to
have examination may have their medical adviser present at such examination. RAF may,
alternatively, request the plaintiffs to submit any medical reports, hospital records, X-ray
photographs, or other documentary information of a like nature relevant to the assessment of
such damages, and to provide copies thereof. If the information obtained is insufficient, a
second and final medical examination may be sought. All full reports of the examination will
have to be submitted to the court.
Similarly, when a plaintiff needs to call an expert witness, a notice must be delivered not less
than fifteen days before the hearing, and a summary of such expert's opinion and his reasons
therefor must be delivered not less than ten days before the trial. It would be essential for Mrs
Smith to have an expert to testify on the injuries of the third plaintiff, thus it is advisable to
consult an expert timeously.

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The plaintiff needs to furnish certain documents to support her evidence for loss of support. First
and foremost, the plaintiff needs to produce proof of the amount the deceased was earning.
Thus the plaintiff ought to produce salary slip of the deceased. In addition, the plaintiff should
produce the deceased’s or her bank statements to indicate the amounts that were used to
support the family. This should be accompanied by the relevant documentation indicating, the
amounts used to pay for various family necessities, e.g. municipal rates, school fees, monthly
expenditure on food, annual clothing costs and transportation costs. Evidence pertaining to any
plan, diagram, model or photograph will be inadmissible unless a notice stating the intention to
submit is tendered not less than fifteen days before the hearing.
(15)

[50]

Assignment 02: Semester 02

Question 1
IN THE MAGISTRATE COURT FOR THE DISTRICT OF TSHWANE-NORTH
HELD AT PRETORIA NORTH
Case No.:
In the matter between:
APPLICANT

And

THE STATE

______________________________________________________________
AFFIDAVIT IN SUPPORT OF BAIL APPLICATION

1. I, the undersigned, Violent Mashaya, hereby state under oath that:

2. I am the Applicant in this matter

3. I am of sound and sober mind and I make this statement voluntarily without being influenced
thereto.

4. I seek humbly relief from this Court to be released on bail. I respectfully submit, as I will

demonstrate herein, that the interests of justice permit my release on bail.

7
4. The contents of this document are within my personal knowledge, and to the best of my

knowledge and belief, both true and correct, unless otherwise the contrary exists.

5. I herein state that I have been informed by my legal representative that the record of this bail

application shall form part of the record of the trial following this application. Further, that

whatever I say during this bail application can and may be used against me, subsequently,

during trial.

6. I understand the charges that I am facing. I confirm that it has been explained to me that, in

terms of section 60 (11B) of Act 51 of 1977, I am compelled to disclose whether I have any

previous convictions or pending charges against me, failing which/ or providing fall false

information, constitute an offence punishable by fine of up to R40 000 or imprisonment not

exceeding two years.

7. I further declare herein that I have no previous convictions or outstanding cases against me

8. I hereby implore the court to take into consideration the following aspects regarding the
application:

9. The interests of justice justify my release on bail as follows:

9.1 I deny all the allegations against me. To this extent, I welcome the opportunity to prove my
innocence at trial

9.2 Even though I am aware of the identities of all the potential witnesses, I submit that I will not
interfere with any of them, either directly or indirectly.

9.3 I undertake to attend all subsequent court proceedings in the quest to prove my innocence

9.4 I will endeavour not to commit any of the offences listed in Schedule 1 of the Criminal
Procedure Act 51 of 1977

9.5 I have no intention of undermining or jeopardising the objectives or proper functioning of the

criminal justice system.

10. I further request the court to take into account the following personal circumstances:

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10.1 I have been gainfully employed at Shoprite, Silverton for the past seven (7) years

10.2 I earn R 8000 per month

10.3 I am currently single

10.4 My salary supports myself, my mother and three siblings

10.5 I can afford bail of R 1000 if it is fixed by the court

I UNDERSTAND THE CONTENTS OF THIS AFFIDAVIT. I HAVE NO OBJECTION TO TAKING

THE PRESCRIBED OATH. I CONSIDER THE SAME TO BE BINDING ON MY CONSCIENCE.

Dated and signed at on this day of 2017

Signature of deponent

I CERTIFY THAT THE DEPONENT HAS ACKNOWLEDGED THAT HE/SHE KNOWS AND
UNDERSTAND THE CONTENTS HEREOF THAT WAS SWORN TO BEFORE ME AND THE
DEPONENT’S SIGNATURE WAS PLACED THEREON IN MY PRESENCE.

Dated and signed at on this day of 2017

Commissioner of Oath

(23)

9
Question 2

PLEASE NOTE, IN REGARD TO THIS QUESTION, THAT ANY OF THE OTHER

COMPETENT VERDICTS OF MURDER ARE APPLICABLE. TO THIS EXTENT, YOUR
ANSWER MAY BE FRAMED IN THE CONTEXT OF A CHARGE OF Assault with intent to
cause grievous bodily HARM OR EVEN SIMPLE Assault.

IN THE MAGISTRATE COURT FOR THE DISTRICT OF TSHWANE-NORTH

HELD AT MAMELODI
Case No.:
In the matter between:
APPLICANT: VIOLENT MASHAYA

And

THE STATE

______________________________________________________________
STATEMENT IN TERMS OF SECTION 112 (2) OF THE CRIMINALPROCEDURE
ACT 51 OF 1977

I, the undersigned, Violent Mashaya state hereunder that:

1.
I am the accused in this matter. I am charged with the offence of culpable homicide, and I
understand the charge
2.

My legal representative has explained the legal consequences of this statement and I hereby
provide that I understand same.
3.
I confirm that I make this statement freely and voluntarily whilst in my sane and sober mind.
4.
I have been informed of my constitutional rights, and I know that I have the following rights,
amongst others:

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4.1. The right to be presumed innocent until proven guilty beyond a reasonable doubt;

4.2. The right to remain silent and not to testify during the proceedings; and

4.3. The right not to be compelled to give self-incriminating evidence. (1)

5.

I know and understand that the court may convict me only on the basis of this statement without
the prosecution leading any evidence against me.
6.

I admit that on the 12th of March 2015 I was at 20584 Mamelodi West.

7.

I admit that on the day in question I did unlawfully and negligently cause the death of the
deceased, Victim Skepsel.
8.

I encountered the deceased at the above address with my girlfriend, Poppy Floozy. The
deceased attacked me with a chair when I tried to make conversation with Poppy. In the end, I
subsequently relieved the deceased of the chair and continued to repeatedly hit him with it.

9.

I admit that my initial intention was merely to ward off the attack from the deceased. I further

concede, however, that I should have ceased with my attack just as soon as I hit him a few

times around the body. To this extent, I went beyond the ordinary call for private defence.

10.

I submit that my actions were unlawful and negligent, and that I have no valid defence in law for

my conduct.

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 11.

I place myself at the mercy of the court in this regard.

Dated and signed at Pretoria on this 15th day October 2015

Signature of deponent Signature of legal representative

(25)

[50]

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 TLI4801/201/2/2021

Tutorial Letter 201/2/2021

Techniques in trial and litigation

TLI4801

Semester 2

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2021-S2_ALL, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa.

BARCODE

Open Rubric
 TLI4801/201/2/2021
1. INTRODUCTION
Dear Student

This tutorial letter contains the commentary to Assignments 01 and 02 set out in TL001/3/21.
Please read its contents carefully. This tutorial letter is important for examination purposes.

This commentary is merely a guideline and it may well contain brief answers for some
questions. Therefore, students need to elaborate in their answers to achieve good marks.
Your answers for both assignments must not exceed 15 pages (including bibliography
and declaration of authenticity). Students also need to indicate in their declaration that
they are submitting the correct assignment.

2. FEEDBACK TO ASSIGNMENT 01 AND ASSIGNMENT 02

ASSIGNMENT 01 (CIVIL PRACTICE):

DUE DATE: 25 MAY 2021

Note: Some of the answers to the Questions in this Assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 4th edition
(2019 LexisNexis). Students must not regurgitate what’s in the prescribed textbook but
write in their own words as far as possible! Students are also expected to “identify the
pertinent legal principles” and to demonstrate how these principles apply to the facts
presented. To this extent, students are required to also conduct independent legal
research. This essentially entails perusing relevant legal sources in order to advice the
client accordingly.

1(a) It is a combined summons because the claim is unliquidated. An unliquidated claim is a

claim in which the quantum must be determined for example, where the status of parties
is affected, such as in a divorce. Therefore, the claim is not for a claim for a debt or
liquidated demand, where one would use a simple summons (or possibly a provisional
sentence summons based on a liquid document). The combined summons is used often
involving serious factual disputes that involve the leading of oral evidence to resolve the
issues.

Therefore, the combined summons is the appropriate summons to use to institute Mrs Steven’s
divorce action where the status of parties are/will be affected. (4)

Note: Students need to discuss the appropriate type of summons and apply the law to the
relevant facts. See Marnewick: chapter 6.

(b) The pleading is particulars of claim.

A combined summons comprises the summons and the particulars of claim which is combined
in one document and it forms a unit. An unliquidated claim is made by way of “particulars of
claim”, which is a separate document attached to the summons. The material facts are set out
with sufficient particularity in the particulars of claim, and it contains the evidence to substantiate

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 TLI4801/201/2/2021
the claim for example, a divorce action in this instance. The particulars of claim set out the
particulars in consecutive numbered paragraphs containing as far as possible separate
averments.

See Rule 18((3) and 4) of the Uniform Rules and Marnewick: chapter 6. (4)

(c) The prayer refers to the relief claimed in an action.

Plaintiff’s Prayer:
Wherefore Plaintiff claims:
(1) A decree of divorce
(2) An order directing that each party shall be co-holders of parental rights in respect of the
minor children….. (see new terminology: “care and contact” vs guardianship and custody)
(3) The payment of maintenance in the amount of … per child…
(4) Costs of suit
(5) Further or alternative relief

Note: Some students may refer to division of assets in the prayer.

See Marnewick: chapter 6

2. A legal practitioner may conduct an interview with a client in a litigation matter as follows:
A legal practitioner must use a good structure (initial meeting, problem and goal resolution
discussed; discuss preliminary matters, set out chronological order of facts; develop a
preliminary theory; preliminary advice and concluding the interview) for the interviewing process
so that he or she can elicit all the relevant facts from the client. The interview must all assist in
filling the gaps in the information at hand. The plan also has to consider the admissibility,
reliability and sufficiency of information collated.
Interviews may take place in different ways: a formal setting, telephonically, away from the
legal practitioner’s office, on social media: Skype, Facetime or WhatsApp, Zoom, MS Teams or
similar app.
The purpose of the interview will determine the manner in which the interview is conducted.
The objectives of the interview should elicit relevant facts, clarify the client’s objectives, explain
the law and procedure to the client, advise the client on the available options, counsel the client
and take instructions on the future conduct of the matter.
Note: A legal practitioner refers to an advocate or attorney admitted and enrolled in terms of
sections 24 and 30 of the Legal Practice Act, 2014 respectively. Some legal practitioners may
call the interview a “consultation” or “conference”.
See Marnewick: Chapter 1.
3(a) One can claim from the Road Accident Fund (“RAF”) in the following circumstances: if
you suffered personal injuries as a result of the accident and you were not the driver
solely responsible for the accident. Drivers, passengers, pedestrians, cyclists and
motorcyclists can all claim from the RAF if they were not solely responsible for the
accident.

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 TLI4801/201/2/2021
The RAF provides compensation for inter alia:
• medical expenses that result from the motor vehicle accident,
• general damages for pain and suffering provided you sustained a serious injury such
as sustained serious disfigurement,
• mental impairment or the loss of a bodily function,
• loss of earnings if you were unable to work as a result of an accident.
Therefore, Mr Mkhize’s claim for personal injuries can be instituted against the Road
Accident Fund (“RAF”). Mr Tanner can also institute an action against the RAF for any
personal injuries sustained (although not stated in facts) if he is not the owner of the
vehicle and the accident was caused by the owner’s failure to replace worn brake pads
on the vehicle. The RAF hears claims involving pedestrians; so the RAF can be litigated
against as a defendant. Therefore, the RAF can be approached in this matter having
regard to the given facts. (Also see Evins v Shield Insurance Co Ltd 1980 (2) SA 814
(A)). (3)

(b) The parties will be cited as follows:

The Plaintiff is Mr Alan Mkhize Soap, an adult male, a teacher (insert any occupation) who
resides at…… (insert any street address).
The first Defendant (first) is Mr Joe Tanner, an adult male, a taxi driver or owner (insert any
occupation) who resides at…… (insert any street address).
The second defendant is the Road Accident Fund, a state insurer established by law or
statute, the Road Accident Fund, 56 of 1996 (as amended), and has its offices at.. (insert any
street address)/registered office of principal place of business at… (insert any street address). (4)
See Marnewick: Chapters 5 and 6.

4 “Practical vocational training” refers to training required in terms of the Legal Practice
Act, 2014 by a candidate attorney or pupil in order to be admitted and enrolled as an
attorney or advocate.
Section 26 of the Legal Practice Act, 2014 (“LPA”) prescribes the minimum qualifications
and practical vocational training. These include the requirements of a LLB degree for
admission and enrolment as a legal practitioner and requirements for a foreign
qualification, the compulsory use of community service by candidate legal practitioners
(CLP) and practicing legal practitioners; the undergoing of practical vocational training
for candidate legal practitioner such as community service, the attendance of a legal
practice management course if there is an intention to practise as attorney or advocate;
the passing of a competency-based examination or assessment for CLP; the passing of
a competency-based examination for enrolment of a conveyancer; the passing of a
competency-based examination for enrolment of a notary.
Section 27 of the LPA considers the registration and administration procedures for
practical vocational training: the role of the Legal Practice Council is critical in
determining the minimum conditions and procedures; this incorporates the regulation of
remuneration payments, allowances and stipends to all CLPs.

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 TLI4801/201/2/2021

Section 28 examines the assessment of practical vocational training: the role of the Legal
Practice Council is critical in looking at the procedure and directions regards assessment
procedures; the purpose of the assessment is to establish that the person has attained
an adequate level of competence regards admission and enrolment as a legal
practitioner. (6)
Note: The South African Legal Practice Council was only recently established, and in future
attorneys and advocates will be admitted and enrolled in terms of the Legal Practice Act, 2014.(6)
See Legal Practice Act, 2014. Total: [30]

ASSIGNMENT 02 (CRIMINAL PRACTICE)

DUE DATE: 3 AUGUST 2021

Question 1

1(a) A Director of Public Prosecutions (hereinafter, “DPP”) or a prosecutor authorized in

writing by a DPP may in respect of offences referred to in Schedule 7 and in consultation
with the police investigating officer, authorize the release of an accused on bail in terms
of section 59A(1) of the Criminal Procedure Act 51 of 1977 (hereinafter, “CPA”). Section
59A (1) of the CPA allows the prosecutor to authorize the release of an accused person
on bail for any of the following offences listed in Schedule 7 of the Act:

• Public violence;
• Culpable homicide;
• Bestiality;
• Assault involving the infliction of grievous bodily harm;
• Arson;
• Housebreaking, whether under the common law or a statutory provision, with intent
to commit an offence;
• Malicious injury to property;
• Robbery, other than a robbery with aggravating circumstances, if the amount
involved in the offence does not exceed R20 000,00;
• Theft and any other offence referred to in section 264(1)(a), (b) and (c), if the amount
involved does not exceed R20 000,00;
• Any offence in terms of any law relating to the illicit possession of dependence-
producing drugs;
• Any offence relating to extortion, fraud, forgery or uttering if the amount involved in
the offence does not exceed R20 000; and
• Any conspiracy, incitement or attempt to commit any offence listed in this Schedule

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Application to facts:

Murder refers to the unlawful and intentional killing/causing the death of another human
being. Prosecutorial bail may not be applied for the release of the accused Y, as the
charge of murder does not fall within the list of offences listed in Schedule 7 of the CPA,
which provides for prosecutorial bail. Therefore, prosecutorial bail cannot be applied for
in this instance having regard to the given facts. (5)

See Maharaj A Confident Criminal Litigation (2010) Chapter 1: Arrest and Bail

2. Mr Cleverson is incorrect in his assertion because a plea of guilty in terms of section 112
of the CPA must not include/disclose a defence. The section 112 plea must not disclose
a defence to the charge. A guilty plea in terms of section 112 deals with the merits of the
case and it also sets out mitigating facts. The court must be satisfied that the accused: is
guilty of the offence or charge. Section 113 of the CPA is used to correct a plea of guilty
where the court is in doubt regarding whether the accused is in law guilty of the offence,
did not admit the allegation in the charge, has incorrectly admitted any such an
allegation, has a valid defence to the charge and if the court believes that the accused’s
plea of guilty should not stand. The court will then record a plea of not guilty before the
imposition of a sentence. The accused must give a reasonable explanation for wanting to
correct or change his or her plea. The court may refuse the application if it finds beyond a
reasonable doubt that the application is false. Mr Cleverson will not be able to use a
section 113 to correct his client’s plea as he has no grounds for doing so. Moreover, his
client’s plea of guilty does not need to disclose a defence; so it cannot be incorrect.

See Maharaj, A Confident Criminal Litigation (LexisNexis: 2010) Chapter Title: Chapter 1
The Trial: 7-33. (5)

3. Section 174 of the Criminal Procedure Act, 1977 provides that if at the close of the
state’s case for the prosecution at any trial, the court is of the opinion that there is no
evidence that the accused committed the offence referred to in the charge or any offence
of which the accused may be convicted, it may return a verdict of “not guilty”.

Case law: The phrase “no evidence” has been held to mean “no evidence upon which a
reasonable man acting carefully may convict the accused.” (as per S V Khanyapha 1979
(1) SA 824 (A)). The application of the test will only consider the credibility of the state
witness’s evidence if it is of poor quality that it cannot be relied upon. However, in S v
Mpetha 1983 (4) Sa 262 (C), it was held that the credibility of the state witness plays a
very limited role in the application for a discharge in terms of s 174 of the CPA. A
discharge in terms of s 174 is applicable in the following circumstance: where the
credibility of a witness is such that no part of his/her material evidence is believable, then
such evidence must be dismissed. A defence attorney may also argue that the credibility
of the state witness has broken down in such a manner that no reasonable court will
convict the accused. If there is no evidence to link the accused to the crime, then a
discharge may be applied for. (5)

See Maharaj A Confident Criminal Litigation (LexisNexis: 2010) Chapter Title: Chapter 1
The Trial 7-33.

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4. As a cautionary rule, lawyers are advised not to consult with their clients in the presence
of supporting witnesses and vice versa. Legal professional privilege applies between
attorney and client and it does not extend to outsiders who are present at the
consultation. This includes witnesses and those individuals who attend the consultation
as a stenographer, an interpreter or the legal representatives. Therefore, lawyers should
generally consult with witnesses away from their client’s presence and be careful about
what they disclose to them regards the defence of their clients. The reason for not
disclosing anything to the supporting witnesses is to avoid them blurting anything out in
the witness box, which may prejudice the client’s case.

See J Engelbrecht, Morris Technique in Litigation (2010) Chapter 19.

5. Plea of not guilty in terms of s 115:

Students are expected to draft a plea of guilty in terms of s 115 having regard to the
facts. Students may use their own facts to supplement the given facts.

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 TLI4801/201/2/2021
IN THE MAGISTRATES COURT FOR THE REGIONAL DIVISION OF GAUTENG HELD AT
PRETORIA
In the matter between:

THE STATE
And
Violent Masinga (THE ACCUSED)
Case no: 25/164/2019

PLEA IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977 (AS
AMENDED)

1. I confirm that I am the accused in this matter, and that I have read the charge sheet and I understand the
charge that has been preferred against me.

2. I plead not guilty to the charge of assault with intent to do grievous bodily harm freely and voluntarily and
without any undue influence.

3. The facts which I plead not guilty are as follows (may use own facts):

On 12 March 2021, I went into the local spaza shop “Benny’s general store” in Esselen Street, Mamelodi, Pretoria
to purchase some groceries. I had R 100,00 in my pocket to buy milk, cheese, bread and a can of sardines. I
selected the items and placed them in my basket. As I was approaching the till to pay for my purchases, I was
accosted by one Victim Stevens who was wielding a knobkerrie, and who appeared to be intoxicated. He accused
me of maliciously spreading rumours about him. I tried to step out of his way but to no avail.

A physical confrontation ensued. Victim used his knobkerrie to attack me and I tried to defend myself with my
hands. I managed to grab the knobkerrie from Victim Stevens in the fracas. I used the knobkerrie to defend myself
against blows by Victim and in the ensuing struggle struck Victim on his head with the knobkerrie. He fell to the
ground bleeding profusely. He was taken to the local hospital where he was treated for his head wounds.

The police arrested me at my house in 44, Long Street, Sunnyside after the incident. They charged me with assault
with intent to do grievous bodily harm and took me to the local police station where I was detained.

4. I deny that my actions were unlawful and wrong. I had no intention of causing injury to Victim Stevens. I was
merely trying to defend myself against his attack with the knobkerrie and I managed to take the knobkerrie
away from Victim Stevens.

5. I make the following admissions that may be recorded as such in terms of section 220 of Act 51 of 1977:

One: I went to local spaza shop “Benny’s general store” in Esselen Street, Mamelodi Pretoria to purchase some
groceries.
Two: I was accosted by one Victim Stevens as I was approaching the till to pay for my groceries …

Signature of accused ………………………………………………………………………………………

Full names ………………………………………………………………………………………………….
Place ………………………………………………………………………………………………………...
Date …………………………………………………………………………………………………………

Signature of legal representative …………………………………………………………………………

Full names ………………………………………………………………………………………………….
Place ………………………………………………………………………………………………………...
Date …………………………………………………………………………………………………………

Signature of Senior Prosecutor …………………………………………………………………………

Full names …………………………………………………………………………………………………
Place ……………………………………………………………………………………………………….
Date …………………………………………………………………………………………………………(10) Total: [30]
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Regards,

Prof F Cassim (compiled by)

Mr B Mashabane
Department of Criminal and Procedural Law

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 TLI4801/201/1/2020

Tutorial Letter 201/1/2020

Techniques in trial and litigation

TLI4801

Semester 1

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2020-S1, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa. However, in order to
support you in your learning process, you will also receive some study material in printed
format.

BARCODE
1. INTRODUCTION
Dear Student

This tutorial letter contains the commentary to Assignments 01 and 02 for the 1st semester of
2020. Please read its contents carefully. This tutorial letter is important for examination
purposes.

This commentary is merely a guideline and it may well contain brief answers for some
questions. Therefore, students need to elaborate in their answers to achieve good marks.
Your answers for both assignments must not exceed 15 pages (including bibliography
and declaration of authenticity).

2. FEEDBACK TO ASSIGNMENT 01 AND ASSIGNMENT 02

ASSIGNMENT 01 (CIVIL PRACTICE): SEMESTER 01

UNIQUE NUMBER: 768183

Note: Some of the answers to the Questions in this Assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 4th edition
(2019 LexisNexis). Students must not regurgitate what’s in the prescribed textbook but
write in their own words as far as possible! Students are also expected to “identify the
pertinent legal principles” and also to demonstrate how these principles apply to the
facts presented. To this extent, the student was required to also conduct independent
legal research. This essentially entailed perusing relevant legal sources in order to
advice the client accordingly.

1(a) It should be noted that an action procedure involves the exchange of pleadings or the
summons procedure and evidence is presented by oral evidence. This procedure is not
applicable here. An application procedure is initiated by the issue of a notice of motion
or application, and evidence is presented in the form of affidavits.
Rule 35(7) involves the process whereby, a party giving notice to discover, may apply to
the court for an order for compliance from the other party, and failing such compliance,
dismiss the claim or strike out the defence. An application to compel discovery is an
example of an interlocutory or procedural application. An interlocutory application
involves an interim or procedural relief made during the course of or in anticipation of an
action or substantive application.
Application to facts: In the light of the above, it is recommended that it is more
appropriate for Mr X to use an application procedure rather than the action procedure.
Note: Students need to distinguish between an action and application proceeding. (4)

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(b) A pleading refers to a written document containing averments by the parties to an action.
The material facts supporting the claim or defence are clearly and concisely set out in the
pleading. On the other hand, a process refers to a step proceeding from the court such
as inter alia, a subpoena or notice.
The interlocutory application referred to in 1(a) is a process. An interlocutory application
such as, an application to compel discovery is used to compel compliance with the Rules
or to resolve procedural issues (see Rule 35(7) of the Uniform Rules). It is brought purely
on notice. A party can use the interlocutory application to approach the court for relief in
respect of matter that has already commenced, been instituted or is pending. An
interlocutory application therefore involves an interim or procedural relief made during the
course of or in anticipation of an action or substantive application.
Note: Students need to distinguish between a pleading and a process. (6)
[See chapter 10; Marnewick]

2 Attorneys often advise their clients by letter or confirm their oral advice by letter, and they
may explain counsel’s opinion or convey the substance of counsel’s advice to their client
by a letter. Therefore, the letter contains the contents of counsel’s advice or the
ramifications of such advice. Advice by letter is usually aimed at the “lay” client (average
man or woman); therefore, it is important that this letter be written in such a way that the
style and content of the letter provides the lay client with a clear understanding of his or
her options, how to proceed further with the matter and his or her position in law.
The advantages of advising by letter are:
 The client has an opportunity to read and re-read the letter and to reflect upon it.
 The client can then take further advice after reflection, before finally making a
decision.
The disadvantages are:
 There is no opportunity for the client to ask questions or for the lawyer to determine
whether the client understands the advice so as not to make a mistake.
 It is difficult to counsel a lay client in a letter as the counselling process is too
personal, too important and too dynamic.
[See Marnewick (4th edition): pages 38-39 or Marnewick (3rd edition): pages 34-35] (4)

3(a) A combined summons is used where the claim is unliquidated, such as, an action for
damages or personal injuries, which needs to be proved by evidence. A provisional
sentence summons is used where the claim is liquid such as a cheque. A liquid
document is evidence of an established monetary debt, as the claim that arises also falls
within the definition of a “debt” or liquidated demand. A provisional sentence summons
will not be applicable here, as the claim is unliquidated.

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 Application to facts: This is an action for personal injuries sustained as a result of
collision with a taxi, and damages to a bicycle. Therefore, Mr Smith will use a combined
summons as the action involves an unliquidated claim for damages and personal injuries,
and the quantum has to be proved or determined.
Note: Students need to discuss both types of summons and apply the law to the relevant
facts [See Marnewick: chapter 6] (4)

(b) One can claim from the Road Accident Fund (“RAF”) in the following circumstances: if
you suffered personal injuries as a result of the accident and you were not the driver
solely responsible for the accident. Drivers, passengers, pedestrians, cyclists and
motorcyclists can all claim from the RAF if they were not solely responsible for the
accident.
The RAF provides compensation for inter alia:
 medical expenses that result from the motor vehicle accident,
 general damages for pain and suffering provided you sustained a serious injury such
as sustained serious disfigurement,
 mental impairment or the loss of a bodily function,
 loss of earnings if you were unable to work as a result of an accident.
A claim for damages to the bicycle (delictual action) can be instituted against Mr Joe
Soap. Mr Smith’s claim for personal injuries can be instituted against the Road Accident
Fund (“RAF”). Mr Soap can also institute an action against the RAF for any personal
injuries sustained (although not stated in facts) if he is not the owner of the vehicle and
the accident was caused by the owner’s failure to replace worn brake pads on the
vehicle. The RAF hears claims involving cyclists; so the RAF can be litigated against as a
defendant. Therefore, the RAF can be approached in this matter having regard to the
given facts. (Also see Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)). (4)

(c) The procedure is one of application to strike out.

Joe Soap may use a notice of application to strike out as the pleading contains
scandalous, vexations and or irrelevant statements. Only that part of the pleading
that contains the vexatious, scandalous or irrelevant statement or averment may be
struck out (“as taxi drivers are in the habit of doing”) and not the entire pleading. The
court will grant such application only if it is satisfied that the applicant will suffer
prejudice in the conduct of his or her claim or defence if the application is not granted.
As the proceedings relate to proceedings that have already been instituted and are
pending, it is an interlocutory application brought on notice. [See Marnewick: chapters 6
and 9) (4)

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4 Community service refers to the provision or application of free legal services or the
rendering of voluntary legal services by legal practitioners to indigent people or the poor
community. The aim is to provide free legal assistance or advice for those indigent
people in the community who cannot afford the services of a legal practitioner, or who
cannot access legal services.
Section 29 of the Legal Practice Act, 2014 (“LPA”) prescribes the compulsory use of
community service by candidate legal practitioners and practicing legal practitioners.
Community service may include a component of practical vocational training by
candidate legal practitioners and a minimum period of community service by legal
practitioners upon which their continued enrolment depends upon. According to section
29(2) of the LPA, community service incorporates the following:
 service in the State,
 service at the Human Rights Commission,
 service without remuneration as a judicial officer or commissioner at the small claims
court,
 the provision of legal education and training on behalf of council (Legal Practice), on
behalf of academic institution or non-governmental institution,
 or any other service prescribed by the Minister.
Thus, community service would encapsulate the provision of voluntary and or free legal
service by a legal practitioner. (4)
Total: [30]

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ASSIGNMENT 02 (CRIMINAL PRACTICE): SEMESTER 01

UNIQUE NUMBER: 723246

Question 1

1(a) It should be noted that arson refers to the unlawful and negligent setting of fire to
property resulting in the destruction of said property. A Director of Public Prosecutions
(hereinafter, “DPP”) or a prosecutor authorized in writing by a DPP may in respect of
offences referred to in Schedule 7 and in consultation with the police investigating
officer, authorize the release of an accused on bail in terms of section 59A(1) of the
Criminal Procedure Act 51 of 1977 (hereinafter, “CPA”). Section 59A (1) of the CPA
allows the prosecutor to authorize the release of an accused person on bail for any of the
following offences listed in Schedule 7 of the Act:

 Public violence;
 Culpable homicide;
 Bestiality;
 Assault involving the infliction of grievous bodily harm;
 Arson;
 Housebreaking, whether under the common law or a statutory provision, with intent
to commit an offence;
 Malicious injury to property;
 Robbery, other than a robbery with aggravating circumstances, if the amount
involved in the offence does not exceed R20 000,00;
 Theft and any other offence referred to in section 264(1)(a),(b) and (c), if the amount
involved does not exceed R20 000,00;
 Any offence in terms of any law relating to the illicit possession of dependence-
producing drugs;
 Any offence relating to extortion, fraud, forgery or uttering if the amount involved in
the offence does not exceed R20 000; and
 Any conspiracy, incitement or attempt to commit any offence listed in this Schedule

However, prosecutorial bails are not granted in respect of infrastructure-related offences.

Application to facts:

Prosecutorial bail may be applied for the release of the accused Y, as the charge of
arson does fall within the list of offences listed in Schedule 7 of the CPA, which provides
for prosecutorial bail. Therefore, prosecutorial bail can be applied for in this instance
having regard to the given facts. (5)

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1(b) Bail is regarded as a compromise or striking a balance between the interests of society
and the liberty of an accused. The court may consider the strength of the state’s case
against the accused, when deciding if the accused would evade trial, be a fugitive from
justice or tamper with evidence if released. The accused’s attorney must persuade the
court that the release of the accused will not be detrimental to the interests of justice. It
involves a value judgment of what is fair and equitable having regard to all
circumstances.

The CPA mentions various factors that a court may take into account to determine
whether bail should be granted or not. Thus, s 60 (4) (a) – (e) lists factors that a court
may consider when the interests of justice do not permit such release on bail. The
interests of justice do not permit release in the following circumstances/on the following
grounds:

(a) where there is the likelihood that the accused if released on bail, will endanger the
safety of the public or any particular person or will commit a Schedule 1 offence; or
(b) where there is the likelihood that the accused, if released on bail, will attempt to
evade his or her trial; or
(c) where there is the likelihood that the accused, if released on bail, will attempt to
influence or intimidate witnesses or to conceal or destroy evidence; or
(d) where there is the likelihood that the accused, if released on bail, will undermine or
jeopardise the objectives or the proper functioning of the criminal justice system,
including the bail system; or
(e) where in exceptional circumstances there is the likelihood that the release of an
accused will disturb the public order or undermine the public peace or security.

The focus at the bail stage is to decide whether the interests of justice permit the release of the
applicant pending trial, which entails, in the main, protecting the investigation and prosecution of
the case against any hindrance. (5)

Note: The answers to question 1 are to be sourced from Maharaj, A Confident Criminal
Litigation (LexisNexis: 2010) Chapter Title: Arrest and Bail: 1-6.

2. Section 105 A of the Criminal Procedure Act, 1977 allows prosecutors to negotiate and
enter into a plea and sentence agreement with the defence. Many parties are involved in
this process, namely, the prosecutor, accused and legal representative, investigating
officer, complainant and presiding officer. It should be noted that the prosecutor can only
conclude the plea and sentence agreement once he or she is authorized to do so by the
National Director of Public Prosecutions (s 105 A (1)(a).The agreement must be
negotiated and entered into before an accused has pleaded to the charge.

The contents of the sentence agreement are:

 The accused must plead guilty to the charge and be convicted
 It must include the sentence to be imposed
 It must state the substantial facts of the matter
 It must cover all legal elements of the offence (facta probanda)

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 The prosecutor must consult the investigating officer and afford the complainant and his
or her representative an opportunity to make representation to the prosecutor regarding
the contents of the agreement and the inclusion of any conditions.

In practice: the defence attorney approaches the prosecutor with the proposal that a
sentence agreement be entered into and a suggestion as to what constitutes a just and
proper sentence. If the court does not confirm the agreement, the defence must withdraw
from the agreement and the trial starts de novo before another court. Any information
contained in the agreement may not be used in the subsequent trial. The defence also
has the choice not to withdraw from the agreement and to proceed with the sentencing
process. (6)

3. Section 157(2) of the Criminal Procedure Act, 1977 grants judicial authority for separation
of trials. An application for separation of trials can be made in the following
circumstances:
 If your client’s co-accused has become problematic or is creating difficulty for your
client, then you may make such an application;
 If your client’s co-accused is an existing or potential threat, you should consider an
application for separation of trials;
 Principles from the following judgments are relevant: S v Ntuli and Others 1987 (2)
SA 69 (A), R v Bagas 1952 (1) SA 437 (A) and R v Nzuza and Another 1952 (4) SA
376 (A); these cases allude to the trial court’s discretion in granting a separation of
trials; a trial court has to weigh up the likelihood of prejudice to the applicant accused
resulting from a joint trial against the likelihood of prejudice to the other accused or
the State if their trials are separated, and to decide whether or not a separation of
trials should be granted in the interests of justice;
 The applicant must show that he will suffer substantial prejudice before making such
an application (R v Kritzinger 1952(4) SA 651 (W);
 The mere fact that a co-accused made a confession implicating your client would not
automatically provide a ground for a separation of trials (S v Mabeka and Another
2003 (2) SACR 128 (SCA);
 The view has been expressed that whenever a co-accused has made a confession or
admission or where there is a possibility of prejudice to your client for any other
reason, you should apply for a separation of trials. (4)

Note: The answers to questions 2-3 are to be sourced from Engelbrecht, Morris
Technique in Litigation (2010) Chapter 19.

4. Plea of guilty in terms of s 112 (2)

Students are expected to draft a plea of guilty in terms of s 112 (2) having regard to the
facts. Students may use their own facts to supplement the given facts.

Section 112 (2) of the CPA represents one of the instances in which a guilty plea may be
conducted by the court.

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IN THE MAGISTRATES COURT FOR THE REGIONAL DIVISION OF GAUTENG HELD AT

PRETORIA
In the matter between:

THE STATE
And
Violent Masinga (THE ACCUSED)
Case no: 25/164/2019

PLEA IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE ACT 51 OF 1977 (AS
AMENDED)

1. I confirm that I am the accused in this matter, and that I have read the charge sheet and I understand the
charge that has been preferred against me.

2. I plead guilty to the charge of assault with intent to do grievous bodily harm freely and voluntarily and without
any undue influence.

3. The facts which I plead guilty are as follows (may use own facts):

On 12 March 2020, I went into the local spaza shop “Benny’s general store” in Esselen Street, Mamelodi, Pretoria
to purchase some groceries. I had R 100 in my pocket to buy milk, cheese, bread and a can of sardines. I selected
the items and placed them in my basket. As I was approaching the till to pay for my purchases, I was accosted by
one Victim Stevens who was wielding a knobkerrie, and he appeared to be intoxicated. He accused me of
maliciously spreading rumours about him. I tried to step out of his way but to no avail.

A physical confrontation ensued. Victim used his knobkerrie to attack me. I picked up a knife which I found in the
shop. I stabbed Victim with the knife on his arm and legs and he fell to the ground bleeding profusely. He was
taken to the local hospital where he was treated for the stab wounds.

The police arrested me at my house in 44, Linken Street, Sunnyside after the incident. They charged me with
assault with intent to do grievous bodily harm and took me to the local police station where I was detained.

4. I know that my actions were unlawful and wrong. I had no intention of causing injury to Victim Stevens. I was
trying to defend myself against his attack with the knobkerrie. I accept that my actions caused him grievous
bodily harm.

Signature of accused ………………………………………………………………………………………

Full names ………………………………………………………………………………………………….
Place ………………………………………………………………………………………………………...
Date …………………………………………………………………………………………………………

Signature of legal representative …………………………………………………………………………

Full names ………………………………………………………………………………………………….
Place ………………………………………………………………………………………………………...
Date …………………………………………………………………………………………………………

Signature of Senior Prosecutor …………………………………………………………………………

Full names …………………………………………………………………………………………………
Place ……………………………………………………………………………………………………….
Date …………………………………………………………………………………………………………
(10)
Total: [30]

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Regards,

Prof F Cassim (compiled by)

Mr B Mashabane
Department of Criminal and Procedural Law

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 TLI4801/202/2/2020

Tutorial Letter 202/2/2020

Techniques in trial and litigation

TLI4801

Semester 2

Department of Criminal and Procedural Law

IMPORTANT INFORMATION:
This tutorial letter contains important information
about the October/November 2020 examination for
your module.

Define tomorrow
Open Rubric
 CONTENTS

1 INTRODUCTORY REMARKS

2 INSTRUCTIONS TO ANSWER THE OCTOBER/NOVEMBER 2020

EXAMINATION (NON-VENUE- BASED EXAMINATION)

3 OCTOBER/NOVEMBER 2020 EXAMINATION (NON-VENUE BASED

EXAMINATION) QUESTION PAPER
4 DECLARATION OF AUTHENTICITY

5 CONCLUDING REMARKS

1. INTRODUCTORY REMARKS

This examination represents the final summation assessment (non-venue-based

assessment) in respect of this module. Therefore, do not contact any of the lecturers for
guidelines regarding the completion of this assessment.

2. INSTRUCTIONS TO ANSWER THE OCTOBER/NOVEMBER 2020

EXAMINATION (NON-VENUE BASED EXAMINATION)

PLEASE COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN ANSWERING THE

EXAMINATION (NON-VENUE- BASED EXAMINATION).

2.1
Due date for examination: 7th October 2020

Unique number: 651803

Submission period: 2nd October – 7th October 2020

ATTENTION SUPPLEMENTARY STUDENTS ONLY: You must submit your

answers on the online portal for Semester 1, 2020 (semester you were originally
registered for) and you must use the unique number for that semester: 766311

ATTENTION ALL STUDENTS:

The myUnisa system will open for submission of your answers on 2nd October 2020
at 08:00, and it will close on 7th October 2020 at 24:00 (midnight). You may submit
your portfolio assessment answers at any time between these times, and you may
only submit during this period. At the expiry of this period, the system will close
and you will no longer be able to submit your answers. NO LATE SUBMISSIONS
WILL BE ACCEPTED since this assessment counts as your examination for this
module.

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 TLI4801/202/2/2020

You are advised to submit your examination answers as soon as possible. NO

EXTENSION FOR LATE SUBMISSION WILL BE GRANTED.

PLEASE NOTE: Tutorial Letter 202/2/2020 will only be available on myUnisa

during the period of submission, as it serves the same purpose as an examination
paper. Once the submission closes on the system, this tutorial letter is automatically
removed and will no longer be available and can no longer be accessed.

2.2 You must submit your examination answers as a single document in PDF-format, and
it may not be submitted with security restrictions under the “protect document”-
option. Security restrictions interfere with the electronic marking program used and
prevent the electronic marking of assignments. Portfolios e-mailed to lecturers
WILL NOT BE ACCEPTED as assignments must be registered and processed
on the system by the Assignment Department. If you submit your portfolio in an
incorrect format, or if you submit the portfolio with security restrictions under the
“protect document”-option, the portfolio will simply be cancelled and you could fail
this assessment (which will result in you having to register for this module again next
semester).

As you may only submit one document, you must ensure that everything you want us
to assess is included in the ONE document that you submit. No additional files will be
accepted either on myUnisa or via e-mail. This includes the declaration of
authenticity! A second submission automatically replaces the first submission
on the system, and a submission comprising only a declaration of authenticity
will thus result in a zero-mark.

Ensure you keep a copy of the portfolio that you submit AND keep evidence of your
submission on the myUnisa platform. Also, FOLLOW ALL THE STEPS REQUIRED
FOR SUBMISSION. If you fail to do so, the system will show that you did not submit
the portfolio assignment, and your examination result will read “absent from
examination”.

All queries regarding problems with myUnisa must be addressed to the

Assignment Department, Bugmaster or the ICT Department and not to the
lecturers. We cannot provide any technical assistance and also do not have
access to the system. DO NOT EMAIL YOUR PORTFOLIO ANSWERS TO THE
LECTURERS!

2.3 The examination answers must contain your full names, student number, module
code, unique number and declaration of authenticity.

2.4 The examination counts 100 marks and consists of TWO (2) questions. Each answer
must commence on a separate page. Ensure that you give full reasons for each
answer. A mere "Yes" or "No" answer will not earn you any marks. Answer ALL the
questions.

2.5 Number your answers correctly and write your answers in your own words.
Students will lose marks if their answers indicate copying, plagiarism or
collaboration with other parties. Scripts may also be investigated for possible
disciplinary proceedings in these circumstances.

Your answers must be typed in Arial 12pt with 1.5 line spacing. Your answers must
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 appear on one side of the page. Leave a space between each answer. Your entire
portfolio assignment must not exceed 25 pages.

2.6 Your answers must contain complete references to sections in legislation, principles
and relevant case law. Students will be penalised for incomplete or incorrect
references.

2.7 Please ensure that you complete and sign the DECLARATION OF AUTHENTICITY
at the end of this tutorial letter and attach the signed declaration to your examination
answers. You may retype the declaration, or you may attach the signed declaration
to your answers in any other manner. EXAMINATION ANSWERS WITHOUT
SIGNED DECLARATIONS WILL NOT BE MARKED.

2.8 Please ensure that you submit the correct assignment – a wrong assignment will
result in the cancellation of your assignment. If the correct assignment is not
resubmitted before the due date, a zero-mark will be awarded.

3. OCTOBER/NOVEMBER 2020 EXAMINATION (NON-VENUE-BASED

ASSESSMENT) QUESTION PAPER

INTRODUCTORY REMARKS:

This type of assessment (non-venue- based assessment) represents the final assessment
in this module. Therefore, do not contact any of the lecturers for guidelines regarding the
completion of this assessment as it is considered a formal examination, which must be
completed independently.

FORMAL REQUIREMENTS:

PLEASE COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN WRITING THE

EXAMINATION (NON-VENUE-BASED ASSESSMENT) AND TAKE NOTE OF THE
FOLLOWING RULES:

(1) THE PAPER CONSISTS OF TWO QUESTIONS, NAMELY QUESTION 1 ON CIVIL

PRACTICE, and QUESTION 2 ON CRIMINAL PRACTICE. BOTH QUESTIONS
ARE COMPULSORY.

(2) THE ANSWERS IN THIS QUESTION PAPER ARE TO BE OBTAINED FROM YOUR
PRESCRIBED STUDY MATERIAL, namely, the prescribed textbook, CG
Marnewick Litigation Skills for South African Lawyers, 4th edition, (2019

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 TLI4801/202/2/2020
LexisNexis), additional resources material and tutorial letter 201. You may
consult other sources provided that they are properly referenced.

(3) YOU ARE REQUIRED TO EXHIBIT YOUR OWN INITIATIVE WHEN ANSWERING
QUESTIONS, IN ORDER TO SHOW THAT YOU UNDERSTAND THE CONTENT.
IN OTHER WORDS, YOU MUST, AS FAR AS POSSIBLE USE YOUR OWN
WORDS WHEN WRITING YOUR ANSWERS. THE WORD-FOR-WORD
REGURGITATION OF ANSWERS FROM THE STUDY MATERIAL WILL NOT BE
REWARDED WITH FULL MARKS.

(4) THE ANSWERS MUST BE WRITTEN OR TYPED. YOUR COMPLETED ANSWERS

MUST THEN BE CONVERTED INTO PDF FORMAT AND SUBMITTED ONLINE IN
THE SAME MANNER THAT YOU SUBMIT ALL OTHER ASSIGNMENTS ONLINE.

THE QUESTION PAPER:

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QUESTION 1: CIVIL PRACTICE

1. Mr Adam Peters, a businessman, has purchased building material/supplies to the

value of R 450,000 from Jock Builders. The material/supplies are delivered by Jock
Builders to Mr Peters, and a copy of the invoice is handed to Mr Peters. Mr Peters
neglects to pay for the building material/supplies. Despite repeated requests by Jock
Builders, Mr Peters does not pay or settle the amount. Jock Builders wants to sue Mr
Peters for the outstanding amount. The owner of Jock Builders approaches you for
legal advice regarding the proceedings to be instituted against Mr Peters.
Answer the following questions, using proper references. Note: In your answers, you
are required to make up facts/create facts to supplement the given facts of the
case in so far as your own rendition does not detract from the core issues.
(a) Discuss the type of summons that Jock Builders will use to recover the outstanding
amount.
(4)
(b) Draft the summons chosen in 1(a) above.

(10)

(c) The owner of Jock Builders requests your advice regards a suitable ADR (alternative
dispute resolution) mechanism to resolve the dispute with Mr Peters expeditiously.
Discuss briefly whether arbitration or negotiation is the most suitable ADR mechanism
having regard to the given facts and advise Jock Builders accordingly. (10)
(24)

2. Answer the following questions:

2.1 Discuss what you understand by the term “heads of argument”.

(3)
2.2 Critically discuss how an attorney/advocate may deal with the issue of submitting
heads of argument late in court.

(5)

[8]
3. Ms Novice Stevens, a defence attorney, commences her first trial in court A at the
Randburg magistrate’s court. During the course of the trial, she continuously uses
statements like “Please bear with me, your worship” and “please overlook my mistakes,
I am new at this!” when addressing the presiding officer. Critically discuss the impact

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 TLI4801/202/2/2020
of the above statements on the defendant’s attorney’s performance and confidence in
court.
(5)

4. It is common practice nowadays for attorneys to use emails and text messages to
advise their clients. Discuss the use of such emails and text messages by attorneys in
practice.

(3)

5. Critically discuss the role and liability of the Legal Practitioner’s Fidelity Fund in
addressing pecuniary loss suffered by clients as a result of the actions of their legal
practitioners. You must refer to relevant legislation in your answer.

(10)

[50]

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QUESTION 2: CRIMINAL PRACTICE

1. Discuss whether an attorney can fabricate a defence for his/her client. (4)
2. Your client, Violent Mashaya, who is arrested on a charge of arson, advises you that
he is not guilty. The evidence against your client is that he was seen loitering near the
Essen Warehouse property before it caught alight. The incident took place on the 12
May 2020 near Mamelodi West, Pretoria in the Regional Division of North Gauteng.
Although no one was injured in the fire, the owner of Essen Warehouse has suffered
extensive pecuniary loss/damage as result of the fire to his property.
Your client denies that he committed the act of arson or that he acted unlawfully and
intentionally. Therefore, he instructs you, his attorney, to tender a plea of not guilty on
his behalf. Answer the following questions:
2.1 Discuss the implications of not preparing/drafting a not guilty plea/statement in terms
of the Criminal Procedure Act 51 of 1977.
(4)
2.2 Draft your client’s plea of not guilty in terms of the Criminal Procedure Act 51 of 1977.

(10)
Note: In your answer, you are required to make up facts/create facts to
supplement the given facts of the case in so far as your own rendition does not
detract from the core issues.

[14]

3. Critically discuss the discretionary role of the court to grant a section 174
discharge. Motivate your answer by reference to relevant case law. (10)

4. Three Suspects Ace Mbiza, Chance Cloete and Finance Knoetze, former executives
of BDSM Mutual Bank are arrested and brought to court to face charges for fraud, theft
and bribery following the disappearance of an amount of R 600 million Rands from the
BDSM accounts. The amount represents the deposits made by BDSM clients.
You represent Mr. Finance Knoetze, the former Chief Financial Officer of the Bank. He
informs you that he was initially approached by one of the co-accused Mr Ace Mbiza ,
the former CEO of BDSM Bank with this elaborate plan to move clients’ deposits from
BDSM accounts and use it to pay third parties employed by various government
agencies. This was done in exchange for cash payments to the third parties to
encourage these entities to deposit money with BDSM Mutual Bank.
All the accused including Ace Mbiza and Finance Knoetze undertook these actions
well-knowing that their actions were unlawful and that their actions constituted criminal
conducts of fraud, theft and bribery. Mr. Knoetze acknowledges that even though some
of the funds were deposited into his own personal account, he was merely acting on

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 TLI4801/202/2/2020
the instructions of Mr Mbiza. However, Mr Knoetze is prepared to provide testimony
on behalf of the state against the accused Ace Mbiza and Chance Cloete. Mr. Knoetze
instructs you as his attorney to advise him on whether he can proceed with providing
evidence on behalf of the state in terms of section 204 of the Criminal Procedure Act,
1977 and the implications of doing so.
Having regard to the above facts, discuss the purpose of section 204 of the Criminal
Procedure Act, 1977 and advise Mr Knoetze about the implications of him
providing/tendering evidence on behalf of the state. In your answer, you must refer to
relevant case law and academic literature.
(10)
5. Discuss the different techniques that trial lawyers may use in order to improve the
retention of key information presented at the trial.
(12)

[50]

TOTAL:[100]

9
4. DECLARATION OF AUTHENTICITY

We enclose a sample declaration for completion. Please attach the signed declaration
to your examination answers. We will not mark your examination UNLESS you attach
the signed declaration to your examination answers.

DECLARATION OF AUTHENTICITY

I,………………………………………………………………(Full name/s and

surname)

Student number: …………………………………………………..

declare that I am the author of this examination in TLI4801. I further declare

that the entire examination is my own, original work and that where I used
other information and resources, I did so in a responsible manner. I did not
plagiarise in any way and I have referenced and acknowledged any
legal resources that I have consulted and used to complete this
examination. By signing this declaration, I acknowledge that I am aware of
what plagiarism is, and the consequences thereof. Furthermore, I
acknowledge that I am aware of UNISA’s policy on plagiarism and
understand that if there is evidence of plagiarism within this document,
UNISA may take the necessary action.

Date: ……………………………………………………..

Place:………………………………………………………

Signature:…………………………………………………….
(provide an electronic signature or type or write your name or surname
again)

5. CONCLUDING REMARKS

Your results will be released by the Department of Examination Administration (DEA)

during the October/November 2020 official release period of examination results. We
as lecturers are not authorised to release any results in any manner. We wish you
success with your future studies.

Regards

Prof F Cassim
Mr B Mashabane
Unisa/kr

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LI4801/201/2/2020

Tutorial Letter 201/2/2020

Techniques in trial and litigation

TLI4801

Semester 2

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2020-S2, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa.

 lOMoAR cPSD| 8431879

1 INTRODUCTION
Dear Student

This tutorial letter contains the commentary to Assignments 01 and 02 for the 2nd semester of
2020. Please read its contents carefully. This tutorial letter is important for examination
purposes.

Note: This commentary is merely a guideline and it may well contain brief answers for some
questions. Therefore, students need to elaborate in their answers to achieve good marks. Your
answers for both assignments must not exceed 15 pages (including bibliography and
declaration of authenticity).

2. FEEDBACK TO ASSIGNMENT 01 AND ASSIGNMENT 02

ASSIGNMENT 01: SEMESTER 02

UNIQUE NUMBER: 771134

Note: Some of the answers to the questions in this assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 4th
edition (2019 LexisNexis). Students must not regurgitate what’s in the prescribed textbook but
write in their own words as far as possible! Students are also expected to “identify the pertinent
legal principles” and to demonstrate how these principles apply to the facts presented. To this
extent, students are required to also conduct independent legal research. This essentially
entails perusing relevant legal sources in order to advice the client accordingly.

1.(a) Type of appropriate summons:

There are three types of summons used in practice:
 A combined summons is used where the claim is unliquidated and evidence has to be
presented, whereas a simple summons is used where the claim is clear and ascertainable
or liquidated.
 A provisional sentence summons is used where the claim is liquid and it reflects an
established monetary debt such as a cheque, and it will not be applicable here.
This is an action for personal injuries sustained as a result of collision with a taxi. The claim
against Mr Joe Soap will therefore be one for personal injuries and damages (delictual action).
Mr Smith will therefore use a combined summons as the action involves an unliquidated claim
for damages and personal injuries, and the quantum has to be proved or determined. The
plaintiff’s claim can also be brought against the Road Accident Fund (“RAF”).
Note: Drivers, passengers, pedestrians, cyclists and motorcyclists can all claim from the RAF if
they were not solely responsible for the accident.
Source: Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019) chapters 5-
6 (4)

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TLI4801/201/2/2020

1(b) Citing or describing the parties in the pleading (particulars of claim):

The Plaintiff is Mr Alan Smith, an adult male, a teacher and avid hiker (insert any occupation),
who resides at.................. (insert any street address).
The first Defendant (first) is Mr Joe Soap, an adult male, a taxi driver or owner (insert any
occupation) who resides at…… (insert any street address).

The second defendant is the Road Accident Fund, a state insurer established by law or
statute, the Road Accident Fund, 56 of 1996 (as amended), and has its offices at.. (insert any
street address)/registered office of principal place of business at… (insert any street address).

Source: Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019) chapter 5
(6)
1(c) Plaintiff’s prayer:

In the premise the plaintiff claims judgment against the defendant/defendant’s

driver/insured/uninsured driver for:
1) Payment of the sum of R 700 000,00.
(2) Interest in the sum claimed in terms of section 2 of Act 55 of 1975.
(3) Costs of suit.
(4) Further/alternative relief.
Source: Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019) chapter 6
(4)

2. Relevance of heads of arguments:

Heads of argument are important to the process of persuasion. The heads of argument contain
the summary of the argument to be presented to the appeal court. They allow the
advocates/counsel to bring the issues and the points for oral argument into sharper focus for the
judges. The heads of arguments should be structured in order to be persuasive regards the
facts and points of law, and they should be irresistible. This is the first opportunity to bring the
judges around to your client’s side; so counsel must make use of the opportunity to arrange the
facts and points of law so that the conclusion in your client’s favour is inevitable or clear. The
heads of argument must demonstrate why the judgment is wrong and show the best points in
your client’s favour and the weaknesses in the opposing party’s defence.
Source: Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019) chapter 25
(6)
3. Arbitration involves a procedure by which a dispute may be determined without
recourse to the courts, and it is mainly used as a result of a provision in the contract between
the parties to the dispute. Arbitration is most suitable for commercial disputes such as building
or construction contracts and maritime claims. Cases which cannot be resolved by arbitration
include matters involving the status of a person or company, such as an action for a decree of
divorce, paternity suits, sequestration, liquidation applications and applications for rehabilitation.

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 lOMoAR cPSD| 8431879

Therefore, arbitration will not be suitable regards the given facts: divorce proceedings involving
minor children or a custody dispute.

Mediation has been described as “assisted negotiation”, and it takes place under the guidance
of a mediator. The purpose of mediation is to seek an agreement on a possible solution to the
problem. The role of mediator is that of a facilitator or a “go-between”, who structures the
discussion, clarifies the viewpoints of the parties, encourages the parties to explores
alternatives and guides them to a mutually acceptable solution.
Circumstances when mediation is suitable: contractual claims, motor-vehicle collisions and
other damage claims, neighbourhood disputes and family disputes, parties who are in a
continuing or long-term relationship such as husband and wife, employer and employee,
landlord and tenant and disputes between partners and joint owners of properties. Mediation is
regarded as a less destructive way to resolve disputes in these areas of practice. Note:
Mediation is also suitable for custody disputes or marital disputes.
Circumstances when mediation is not suitable: disputes involving purely legal questions or
complicated questions of fact or credibility, where one of the parties has an ulterior motive,
where one of the parties is vulnerable for example, in a family dispute where there are
allegations of abuse; where there is a dispute based on fundamental religious or ethical beliefs.
Therefore, I would advise my client to use mediation as an ADR strategy to resolve the custody
dispute of the minor children as it is the most appropriate strategy available in marital disputes
or custody disputes.
Note: The above answer is detailed.
Source: Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019) chapter 3
(4)
4. Measures to improve access to justice:
The Legal Practice Act, 2014 seeks to ensure that legal services are accessible to the ordinary
citizens by introducing the following measures:
 a mechanism to address fees charged by legal practitioners for services rendered so that
the fees are easily affordable by ordinary citizens.
 the rendering of community service by candidate legal practitioners and practicing legal
practitioners.
 measures to address equal opportunities for all aspiring legal practitioners so that the legal
profession reflects the demographics of the general population.
Note: Students need to focus on measures to improve access to justice by the general public.
Source: Legal Practice Act 28 of 2014. (6)
Total: [30]

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 lOMoAR cPSD| 8431879

TLI4801/201/2/2020

ASSIGNMENT 02: SEMESTER 02

UNIQUE NUMBER: 831207

1. Plea of not guilty in terms of s 115:

IN THE MAGISTRATES COURT FOR THE REGIONAL DIVISION OF GAUTENG HELD AT

PRETORIA
In the matter between:

THE STATE

And

Violent Masinga (THE ACCUSED) Case no: 25/164/2020

PLEA IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977 (AS
AMENDED)

1. I confirm that I am the accused in this matter, and that I have read the charge sheet. I
understand the charge that has been preferred against me.

2. I plead not guilty to the charge of murder.

3. The facts which I plead not guilty to are as follows: On 28 February 2020, I went into the local
spaza shop “Benny’s general store” in Kendel Street, Sunnyside, Pretoria to purchase some
groceries. I had R 100,00 in my pocket to buy milk, cheese, bread and a can of sardines. I
selected the items and placed them in my basket. As I was approaching the till to pay for my
purchases, I was accosted by one Victim Stevens who was wielding a knobkerrie, and he
appeared to be intoxicated. He accused me of sleeping with his girlfriend. I tried to step out of
his way but to no avail.

A physical confrontation ensued as we were leaving the shop. I used a baseball bat lying close
by to defend myself against the attack by Victim Stevens who wielding the knobkerrie, and it
struck Victim’s head. He fell to the ground bleeding profusely from his head. Victim was taken to
the local hospital where I learnt later that he died as a result of his injuries.

The police arrested me at my house at 44, Linken street, Mamelodi West after the incident.
They charged me with murder, and they took me to the local police station where I was
detained.

4. I deny that my actions were unlawful and wrong as I acted in self-defence. I had no intention
of causing the death of Victim Stevens. I was merely defending myself against his attack with
the knobkerrie.

5. I make the following admissions that may be recorded as such in terms of section 220 of Act
51 of 1977:

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 lOMoAR cPSD| 8431879

One: I assaulted one Victim Stevens with a baseball bat which I picked up in the spaza shop
“Benny’s general store”.

Two: The victim’s head was struck with the baseball bat which may have inadvertently
contributed to his head injuries and death.

Signature of accused ……………………………………………………………………………………

Full names ……………………………………………………………………………………………….

Place
………………………………..…………………………………………………………………………...

Date ………………………………………………………………………………………………………

Signature of legal representative ………………………………..……………………………………

Full names ……………………………………………………………………………………………….

Place ……………………………………………………………………………………………………...

Date …………………………………………………………………………………………………………

Signature of Senior Prosecutor …………………………………………………………………………

Full names …………………………………………………………………………………………………

Place ……………………………………………………………………………………………………….

Date …………………………………………………………………………………………………………

Note: Students may use their own facts to supplement the given facts. A charge of murder can
be brought in the High Court or the regional magistrate’s court.

Source: Maharaj, A Confident Criminal Litigation (2010) chapter 1: The trial

(10)

2. The duty to inform the court of prior convictions:

The attorney is obliged to inform the court of his/her client’s previous convictions (if any) or any
pending cases and whether the client has been released on bail in respect of those charges
(see section 60(11B) (a) (i)(ii) of the Criminal Procedure Act, 1977). The failure to disclose
previous convictions or pending cases is a criminal offence (see section 60(11B) (d)). Therefore,
the defence attorney is obliged to inform the court which is “hearing” the bail application that his

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TLI4801/201/2/2020

client Violent Masinga has a previous conviction of housebreaking, and whether his client has
been released on bail in respect of the previous charge.

Source: Maharaj, A Confident Criminal Litigation (2010) chapter 1: Arrest and Bail (4)

3. Attorney’s duty to inquire into his/her client’s version:

There is, in principle, no duty on trial lawyers to enquire as to whether their clients are telling the
truth or not. However, where the instructions or other information are such as to cause the
lawyers to doubt the reliability of such information, they must accordingly investigate the matter
further. Where possible, the lawyer must check the truth of what his client tells him, to the extent
that such statements will be relied upon by the court. Lawyers should also not mislead the court
and they should act ethically.

Sources: Palmer et al, Basic Trial Advocacy Skills: chapter 1; Marnewick CG Litigation Skills
for South African Lawyers 4th edition (2019): chapter 14 and J Engelbrecht Morris Technique in
Litigation (2010): chapter 19. (6)

4. Duty of lawyers towards witnesses:

According to the Bar Rules on Ethics and the Law Society Rules, attacking the character of a
witness should not be undertaken unless there are firm instructions and good grounds for such
a course of action. There are limits to the extent to which the character of a witness can be
attacked. Trial lawyers have inter alia, the following duties towards witnesses: a duty of
courtesy, the duty not to harass or badger witnesses, the duty not to make unsubstantiated
attacks on a witness’s character and the study to keep defamatory statements within the
qualified privilege parameters. Witnesses should be treated with courtesy and respect as it is
more likely that counsel will get the information that he or she requires from the witness if he or
she is polite (S v Azo 1974(1) SA 808 (T)). An argumentative attitude will likely elicit less
information and irritate the court. Lawyers should also refrain from harassing, badgering or
bullying witnesses. This may also not elicit the witness’s co-operation and may likely irritate the
court. It is better to expose inconsistencies in a witness’s evidence through polite, carefully
structured questioning. It is also unbecoming of counsel to abuse witnesses. According to the
General Council of the Bar, questions affecting the credibility of the witness by attacking his/her
character although irrelevant, should not be put unless counsel has reasonable grounds to
believe that the imputations on character are well-founded or true. It is also unethical for a
lawyer to put questions to a witness simply to insult and annoy the witness. A trial lawyer’s
defence of qualified privilege only extends to statements which are pertinent or germane to the

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 lOMoAR cPSD| 8431879

issue and which have some foundation in the evidence or circumstances surrounding the trial
(Moolman v Slovo 1964(1) SA 760 (W)).

From the facts, Alex’s conduct is unbecoming as it appears that he is abusing, harassing, and
disrespecting the witness with his accusations and choice of language. He will elicit more
information if he employs courtesy and politeness. Moreover, treating the witness with courtesy
is not inconsistent with skilful, powerful and penetrative cross-examination. Therefore, witnesses
should be treated with respect. Whilst a lawyer is entitled to be firm, he or she should never be
rude (which applies to Alex). It is also not appropriate or good advocacy for Alex to call the
witness a liar. Therefore, Alex is not conforming to good advocacy rules laid down by the Bar
Council and Law Society, and his conduct may well be described as unprofessional and
unbecoming.

Sources: Palmer et al, Basic Trial Advocacy Skills: chapter 1 and Marnewick CG Litigation
Skills for South African Lawyers 4th edition (2019): chapter 18. (10)

Total: [30]

Regards,

Prof F Cassim (compiled by)

Mr B Mashabane
Department of Criminal and Procedural Law

Unisa/kr

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 TLI4801/201/1/2019

Tutorial Letter 201/1/2019

Techniques in trial and litigation

TLI4801

Semester 1

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2019-S1, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa. However, in order to
support you in your learning process, you will also receive some study material in printed
format.

BARCODE
 TLI4801/201/1/2019

1 INTRODUCTION
Dear Student

This tutorial letter contains the commentary to Assignments 01 and 02 for the 1st semester of
2019. Please read its content carefully. This tutorial letter is important for examination purposes.

2. FEEDBACK TO ASSIGNMENT 01 AND ASSIGNMENT 02

ASSIGNMENT 01: SEMESTER 01

UNIQUE NUMBER: 759670

Note: Some of the answers to the Questions in this Assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 3rd
edition (2012 LexisNexis). Students must not regurgitate what’s in the prescribed
textbook but write in their own words as far as possible! Students are also expected to
“identify the pertinent legal principles” and also to demonstrate how these principles
apply to the facts presented. To this extent, the student was required to also conduct
independent legal research. This essentially entailed perusing relevant legal sources in
order to advice the client accordingly.

1. (a) ANSWER:
Attorneys often advise their clients by letter or confirm their oral advice by letter. They
may explain counsel’s opinion or convey the substance of counsel’s advice to their client
by a letter. Therefore, the letter contains the contents of counsel’s advice or the
ramifications of such advice. However, it is unusual for advocates to give advice by letter.
Rather, the usual form or preferred form of counsel’s advice when it is not given face to
face in a conference, is by way of a memorandum or a written opinion. Legal advisers
who are employed by municipalities, insurers or other companies also give advice to their
employers (councils) or directors by way of letter or a memorandum.
It is important to note that advice given by letter differs from advice given by way of a
memorandum or a written opinion. Memoranda and written opinions are aimed at another
lawyer or a more astute or sophisticated client; advice by letter is usually aimed at the
“lay” client (average man/woman). Therefore, it is important that this letter be written in
such a way that the style and content of the letter provides the lay client with a clear
understanding of his or her options, how to proceed further with the matter and his or her
position in law.

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 TLI4801/201/1/2019

Also note: Advice by memorandum is more formal than a letter, and it is less formal than
a written opinion. Counselling offered by a memorandum is more formal than counselling
offered by a letter. The memorandum offers practical advice regards the way forward.
Advocates usually give advice by a memorandum when they address matters of
procedure, when they record advice given orally in consultation or when they engage in
the counselling process.
APPLICATION TO FACTS: In the light of the above, it is recommended that it is more
appropriate for counsel or the advocate to give advice to Ms Dolly Young by
memorandum as the advocate is furnishing advice to the instructing attorney (Ms Young).
(10)
(b) FORMAT OF MEMORANDUM OF ADVICE
NOTE: There must be a heading; paragraphs must be numbered, coherent, set in logical
order and the memorandum must be signed and dated. There should be an
introductory paragraph which sets out the client’s instructions, issue, problem
statement; body should discuss the question or problem in detail, reasoning or
argument, apply law to facts. The conclusion should offer practical advice and make
recommendations regards future steps.
Students may give a format style in table form or actually draft a full memorandum.
Both are acceptable. Students are expected to demonstrate that they know the basics,
they can draft a coherent legal document and they can apply the law AND their mind to
the given facts.

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 TLI4801/201/1/2019

ANSWER:
HEADING: MEMORANDUM OF ADVICE/ MEMORANDUM
FROM Insert name of any advocate/counsel and address.

Some students may insert this at the end which is

acceptable.
TO Insert name of Dolly Young Attorney and address.

Some students may insert this at the end which is

acceptable.

ISSUE Client’s instructions/query or problem raised is/are

addressed here:
Answer:
1. Ms Dolly Young has instructed Advocate XY to
furnish advice regards Mrs. Smiths’ case, namely to
investigate the claim for compensation for personal
injuries, damages sustained in the motor accident
and loss of support by herself and her children as a
result of the accident and death of her husband.
2. There is also a need to investigate any ensuing
claims (such as repairs to motor vehicle, estate
matter).

BODY Contains a discussion of the question or problem in

more detail/ Sets out facts in more detail, explains how
the problem arose having regard to the facts and the
legal principles applicable. Contains the reasoning or
argument: The analysis will lead to a conclusion or
opinion as to what the client can do.
Answer: What claims can Mrs. Smith bring?
1. Civil claims for compensation and damages and
criminal charges such as culpable homicide. As
natural guardian, Mrs. Smith can claim on behalf of
her children. She can pursue a claim against the
Road Accident Fund.
Refer to the appendix which is helpful.

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 TLI4801/201/1/2019

2. Which law is applicable? Substantive and procedural

law? If so why?
3. Discuss the impact of the criminal case against Joe
Soap.
4. Types of evidence available, such as eye witnesses,
documentary evidence.
5. Investigate contractual claims or Insurance claims.
6. Impact of medical reports.
7. Investigate maintenance claims on behalf of children.
8. Law of Succession. Obtain copy of Will.
9. Consider the impact of prescription on the claim if
possible.
[These are some of the claims/issues that can be
discussed. There is no “right or wrong answer” as long
as it makes sense and is properly substantiated. This
will lead up to the conclusion]

CONCLUDING The answer to client’s question or problem and

POINT/S recommendations regards future steps should be
inserted here:
Answer:
1. Mrs. Smith can bring/pursue a claim for
compensation for personal injuries and damages and
loss of support for herself and her children by way of
combined summons in the High Court.
2. The impact of the medical reports, insurance claims
and repairs to the vehicle will determine the quantum
(therefore, require documentary evidence to prove
this).
3. The fact that Joe Soap has been charged with
culpable homicide will strengthen Mrs. Smith’s civil
claim. Mrs.
4. Smith needs a copy of the will for winding up of the
estate. [some of the steps/advice]

Sign and date

(10)

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 TLI4801/201/1/2019

2 NOTES: Students need to discuss mediation as a strategy and ascertain whether it is an

appropriate strategy having regard to the facts. They may also refer to principles
extracted from the rules for court-annexed mediation (such as purpose, aims etc).
ANSWER:
Mediation has been described as “assisted negotiation”. It takes place under the
guidance of a mediator. The purpose of mediation is to seek agreement on a possible
solution to the problem.
Role of mediator: Is that of a facilitator. Sort of a “go-between” who structures the
discussion, clarifies the viewpoints of the parties, encourages the parties to explores
alternatives and guides them to a mutually acceptable solution.
Advantages: The parties participate directly in the process and the final decision rests
with them. Mediation process can resolve legal and non-legal disputes. Mediation can be
quick, inexpensive, flexible, informal, maintain privacy and confidentiality. The mediator is
an independent third party who helps the parties find a solution.
Disadvantages: The mediation process requires the co-operation of both parties. It is
not available in the following disputes involving status, such as proceedings for divorce,
sequestration, liquidation or rehabilitation orders. The outcome of a mediation can only
be enforced through court proceedings.
Circumstances when mediation are suitable: Examples where matters are appropriate
for mediation: contractual claims, motor-vehicle collision and other damage claims,
neighbourhood disputes and family disputes; parties who are in a continuing or long-term
relationship such as husband and wife, employer and employee, landlord and tenant;
disputes between partners and joint owners of properties. Mediation is regarded as a
less destructive way to resolve disputes in these areas of practice.
Circumstances when mediation is not suitable: disputes involving purely legal
questions or complicated questions of fact or credibility, where one of the parties has an
ulterior motive, where one of the parties is vulnerable for example, in a family dispute
where there are allegations of abuse; where there is a dispute based on fundamental
religious or ethical beliefs.
Application to facts: Mediation is appropriate as this is a motor vehicle accident and it is
a less destructive way to resolve the dispute. The aim of parties is to negotiate with each
other with the aid of a mediator to find a mutually acceptable agreement. Some students
may state that mediation is not appropriate as there are many claims arising from the
accident, and this involves complicated facts and further investigation; this will require
additional evidence such as expert evidence. Both approaches are acceptable as long as
the answer is properly motivated. Therefore, either approach can be conveyed to Ms
Young. (15)

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3 A pre-trial conference in terms of Rule 37 can be used at least 6 weeks before the trial
date. The objects of a pre-trial conference are inter alia, to curtail the duration of a trial,
narrow down the issues between the parties, curb costs and facilitate settlements. These
are some of the matters or questions that can be discussed at such a conference:
 Whether there has been full disclosure of the relevant documentary evidence by both
parties?
 Whether there is any issue regarding admissibility of any document which could be
resolved by agreement?
 Whether a joint or agreed bundle of documents could be prepared?
 Could the status of any documents be agreed upon?
 Is a joint inspection necessary? Are any plans or photographs relating to the scene in
dispute and could those disputes be eliminated by appropriate admissions?
 Could the parties jointly prepare demonstrative exhibits for the assistance of the court
and the witnesses?
 Whether there is a need for an interpreter and if so, the choice and terms?
 Whether there a need to use expert witnesses?
 What admissions of fact can be made by either side?
 How the case can be settled?
 Whether there is recourse to an alternative dispute resolution method to resolve the
matter if the case cannot be settled?

Note: Some students may refer to matters discussed in Rule 37(6)(a)-(k) of the Uniform Rules.
This is also acceptable.

Aim of pre- trial conference: valuable tool of preparation for the trial.
How is it appropriate having regard to the given facts: If one prepares for a trial: before one
goes to trial as it curtails the duration and costs. Therefore, it is appropriate for Ms Young to
use a pre-trial conference regarding her client’s case as this will assist with narrowing down
issues and curtailing costs and time for her client. (15)

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ASSIGNMENT 02: SEMESTER 01

UNIQUE NUMBER: 675259

The answers to this question are to be sourced from Maharaj, A Confident Criminal
Litigation (LexisNexis :2010) Chapter Title: Arrest and Bail: 1-6

Question 1

1. (a) It should be noted that a Director of Public Prosecutions (hereinafter, “DPP”) or a

prosecutor authorized in writing by a DPP may in respect of offences referred to in
Schedule 7 and in consultation with the police investigating officer, authorize the release
of an accused on bail (see section 59A(1) of the Criminal Procedure Act 51 of 1977,
hereinafter “CPA”). Section 59A of the CPA allows the prosecutor to authorize the
release of an accused person on bail for any the following offences listed in Schedule 7
of the Act:

 Public violence;
 Culpable homicide;
 Bestiality
 Assault involving the infliction of grievous bodily harm;
 Arson;
 Housebreaking, whether under the common law or a statutory provision, with intent to
commit an offence;
 Malicious injury to property;
 Robbery, other than a robbery with aggravating circumstances, if the amount involved
in the offence does not exceed R20 000,00;
 Theft and any other offence referred to in section 264(1)(a),(b) and (c), if the amount
involved does not exceed R20 000,00
 Any offence in terms of any law relating to the illicit possession of dependence-
producing drugs;
 Any offence relating to extortion, fraud, forgery or uttering if the amount involved in the
offence does not exceed R20 000; and
 Any conspiracy, incitement or attempt to commit any offence listed in this Schedule

However, prosecutorial bails are not granted in respect of infrastructure-related offences.

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 TLI4801/201/1/2019

Note: The following constitutional provisions are relevant to pre-trial release:

 Section 12(1)(a) of the Constitution provides that everyone has the right not to be
deprived of freedom arbitrarily or without just cause.
 Section 35(1)(f) of the Constitution provides that everyone who is arrested for allegedly
committing an offence has the right to be released from detention if the interests of
justice permit, subject to reasonable conditions.
 Section 35(3)(h) of the Constitution provides that an accused is in the absence of a
conviction by a court of law, also constitutionally presumed to be innocent.
 Section 39(2) of the Constitution which provides that a court must promote the spirit,
purport and objects of the Constitution.
 Section 60(1) of the CPA provides for the release of a person on bail if the court is
satisfied that the interests of justice so allow.

Application to facts:

Murder refers to the unlawful and intentional killing/causing the death of another human being
whereas, culpable homicide involves the unlawful and negligent killing/causing of death of
another human being. Prosecutorial bail may not be applied for the release of the accused, as
the charge of murder does not fall within the list of offences listed in Schedule 7 of the CPA,
which provides for prosecutorial bail. Therefore, prosecutorial bail cannot be applied for in this
instance having regard to the facts.

Therefore, it must be established whether Y has the right to be released from jail/detention if the
interests of justice allow it. Bail is regarded as a compromise or striking a balance between the
interests of society and the liberty of an accused. The court may consider the strength of the
state’s case against the accused, when deciding if the accused would evade trial, be a fugitive
from justice or tamper with evidence if released. The accused’s attorney must persuade the
court that the release of the accused will not be detrimental to the interests of justice. It involves
a value judgment of what is fair and equitable having regard to all circumstances. (15)

1. (b) The CPA mentions various factors that a court may take into account to determine
whether bail should be granted or not. Thus, s 60 (4) (a) – (e) lists factors that a court may
consider that the interests of justice do not permit such release on bail. The interests of
justice do not permit release in the following circumstances/grounds:

(a) where there is the likelihood that the accused if released on bail, will endanger the safety of
the public or any particular person or will commit a Schedule 1 offence; or
(b) where there is the likelihood that the accused, if released on bail, will attempt to evade his or
her trial; or
(c) where there is the likelihood that the accused, if released on bail, will attempt to influence or
intimidate witnesses or to conceal or destroy evidence; or
(d)where there is the likelihood that the accused, if released on bail, will undermine or
jeopardise the objectives or the proper functioning of the criminal justice system, including the
bail system; or
(e)where in exceptional circumstances there is the likelihood that the release of an accused will
disturb the public order or undermine the public peace or security.

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 TLI4801/201/1/2019

The focus at the bail stage is to decide whether the interests of justice permit the release of the
applicant pending trial, which entails, in the main, protecting the investigation and prosecution of
the case against any hindrance. (5)

2. The answers to this question are to be sourced from Palmer, R & McQuoid-Mason, D
Basic Trial Advocacy Skills: Chapter 1: 3-29

(a) The factors to be considered in an application for recusal are as follows:

Trial lawyers should use utmost tact when approaching a judicial officer to recuse
himself/herself as judicial officers are only human, and they don’t like to be told in open court
that they made an unfair or biased decision. If a refusal is based on kinship or a previous
connection with the decision, then it is advisable that the lawyer point out such relationship or
connection to the judicial officer in chambers before raising the matter in open court.

Factors affecting an application for refusal were also set out by Schreiner JA in R v Silber 1952
(2) SA 475 (A). They comprise the following factors:

 The repetition of protestations of deep respect will not make the submissions more
convincing if the effect of the words is to undermine the honour and dignity of the court.
 The judicial officer who is being asked to recuse himself or herself should be informed in
advance of such an application as a matter of professional courtesy. This is usually done
informally by requesting the judicial officer to receive both counsel in chambers where the
person wishing to make the application indicates tactfully the fact and grounds of the
application. The officer concerned then has time to consider the request and where
appropriate to arrange for someone else to hear the case.
 Where the lawyer moves for recusal, the other counsel should remain completely neutral
because it is essentially a matter between the first lawyer and the bench. The other lawyer
should not become involved and he or she should state that he or she will abide by the
court’s ruling.

The trial lawyer must try and avoid making a premature assessment when deciding to apply for
a refusal such as hastily acting on the feeling that the court has formed an adverse opinion of
his or her client etc. Rather trial lawyers should ensure that they are right before making an
application for refusal. They should not insult the court with the result that they may be
susceptible to a contempt of court order. Advocates should never use their position to
undermine the dignity and reputation of the court. (10)

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 TLI4801/201/1/2019

(b) Having regard to the facts: X should have used tact to request the recusal of the judicial
officer, Z. Approaching Z in a public place (well-known supermarket) does not display tact
or professionalism. Lawyers must also exercise due care to avoid using words which may
reflect adversely upon the impartiality of the court. It would have been advisable for X as a
matter of professional courtesy to rather advise the bench beforehand about the pending
application in order to give the judicial officer (Z in this instance) an opportunity to withdraw
from the case on his or her initiative. X should also have requested Z to receive him and
the opposing party’s lawyer/legal representative in chambers where X should have made
his application for recusal instead of using a public forum. X should also have avoided
acting prematurely by approaching Z on the basis that Z has made several unfavourable
rulings against him. He must rather make sure that his assertions are right and maintain
his objectivity before acting prematurely as he did in this instance. (5)

Question 2

The answers to this question are to be sourced from Maharaj, A Confident Criminal
Litigation (LexisNexis: 2010) Chapter 1: 7-33.

Plea of guilty in terms of s 112 (2)

Students are expected to draft a plea of guilty in terms of s 112 (2) having regard to the
facts.

Section 112 (2) of the CPA represents one of the instances in which a guilty plea may be
conducted by the court.

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 TLI4801/201/1/2019

IN THE MAGISTRATES COURT FOR THE REGIONAL DIVISION OF GAUTENG HELD AT

PRETORIA
In the matter between:

THE STATE

And

Violent Mashaya (THE ACCUSED) Case no:

25/164/2019

PLEA IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE ACT 51 OF 1977

(AS AMENDED)

1. I confirm that I am the accused in this matter, and that I have read the charge sheet and I
understand the charge that has been preferred against me.

2. I plead guilty to the charge of assault with intent to do grievous bodily harm freely and
voluntarily and without any undue influence.

3. The facts which I plead guilty are as follows:

On 30 February 2018, I went into the local spaza shop “Benny’s general store” in Esselen
street, Sunnyside, Pretoria to purchase some groceries. I had R 100 in my pocket to buy milk,
cheese, bread and a can of sardines. I selected the items and placed them in my basket. As I
was approaching the till to pay for my purchases, I was accosted by one Victim Skepsel who
was wielding a knobkerrie, and he appeared to be intoxicated. He accused me of maliciously
spreading rumours about him. I tried to step out of his way but to no avail.

A physical confrontation ensued with the result that I used my fists to defend myself against
blows inflicted by Victim on my person by using his knobkerrie. I assaulted Victim using my fists
and I struck his head with my clenched fists. He fell to the ground. Victim was rendered
unconscious. He was taken to the local hospital where I later learnt that he died as a result of
the blow to his head.

The police arrested me at my house in 44, Linken street, Sunnyside after the incident. They
charged me with murder and took me to the local police station where I was detained.

4. I know that my actions were unlawful and wrong. I had no intention of causing the death of
Victim Skepsel. I was defending myself against his attack with the knobkerrie. I accept that my
assault caused him grievous bodily harm, and that the blow to his head with my fists may have
inadvertently contributed to his death. I accept that I have no defence for causing the victim
grievous bodily harm.

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 TLI4801/201/1/2019

Signature of accused ………………………………………………………………………………………

Full names ………………………………………………………………………………………………….
Place ………………………………………………………………………………………………………...
Date …………………………………………………………………………………………………………

Signature of legal representative …………………………………………………………………………

Full names ………………………………………………………………………………………………….
Place ………………………………………………………………………………………………………...
Date …………………………………………………………………………………………………………

Signature of Senior Prosecutor …………………………………………………………………………

Full names …………………………………………………………………………………………………
Place ……………………………………………………………………………………………………….
Date …………………………………………………………………………………………………………
(15)
[50]

Regards,

Prof F Cassim
Department of Criminal and Procedural Law

13
 TLI4801/201/2/2019

Tutorial Letter 201/2/2019

Techniques in trial and litigation

TLI4801

Semester 2

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2019-S2, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa. However, in order to
support you in your learning process, you will also receive some study material in printed
format.

BARCODE
1 INTRODUCTION
Dear Student

This tutorial letter contains the commentary to Assignments 01 and 02 for the 2nd semester of
2019. Please read its content carefully. This tutorial letter is important for examination purposes.

This commentary is merely a guideline and it may well contain brief answers for some
questions. Therefore, students need to elaborate in their answers to achieve good marks.
Your answers for both assignments must not exceed 20 pages (including bibliography
and declaration of authenticity if applicable).

2. FEEDBACK TO ASSIGNMENT 01 AND ASSIGNMENT 02

ASSIGNMENT 01: SEMESTER 02

UNIQUE NUMBER: 718511

Note: Some of the answers to the Questions in this Assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 3rd
edition (2012 LexisNexis). Students must not regurgitate what’s in the prescribed
textbook but write in their own words as far as possible! Students are also expected to
“identify the pertinent legal principles” and also to demonstrate how these principles
apply to the facts presented. To this extent, the student is required to also conduct
independent legal research. This essentially entails perusing relevant legal sources in
order to advice the client accordingly.

1(a) Students must discuss which type of summons is appropriate having regard to the facts.
You must discuss both types of summons and the circumstances when they will
be used, and then apply to the given facts.
APPLICATION TO FACTS: In this example, you may use a simple summons because
the amount due in respect of an insurance policy is a liquidated claim or debt. It is
ascertainable. A provisional sentence summons is used where the claim is liquid such
as a cheque, and it may well be applicable here. A liquid document is evidence of an
established monetary debt, as the claim that arises also falls within the definition of a
“debt” or liquidated demand. Therefore, Mrs Smith or her attorney can choose which type
of summons to use. Therefore, you could use both types of summonses. However, a
provisional sentence summons is said to be speedier than a simple summons. (6)
(b) Students need to look at Rule 32(1) of the Uniform Rules to answer the question.
A summary judgment application is used in the following instances:
Where there is a liquid document, liquidated claim, specified movable property or
ejectment. (Rule 32(1)).

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 TLI4801/201
You must elaborate on the above instances.

As payment of an outstanding amount in respect of an insurance policy is ascertainable, the

claim can be described as a liquidated claim. A simple summons would be appropriate. A
summary judgment application is applicable with a simple summons. (4)
(c) Students need to draft a declaration. Note: Students need to know when a declaration is
applicable (the circumstance and type of summons). Refer to Rule 18 of the Uniform Rules.
NOTE: The declaration must include the court’s name/jurisdiction, names of parties and case
number and a heading. There must be a heading; paragraphs must be numbered, coherent,
set in logical order and the declaration must be signed and dated.
IN THE NORTH GAUTENG HIGH COURT, PRETORIA (you can refer to an appropriate High
Court)

Case number: XXXX (insert)

In the matter between:

Plaintiff (insert name for example, Mrs A Smith)

And

Defendant (insert name, for example, ABC Insurance Company)

PLAINTIFF’S DECLARATION

1.The plaintiff is Mrs A Smith (describe fully including address)

2.The defendant is XYZ insurance company,…(describe fully including address)

3. This Honourable court has jurisdiction to hear this matter in that (state the grounds for
jurisdiction)

4-6. State the causa/facta probanda (reason for bringing action; reference to policy; copy of
cession; copy of death certificate; when policy ceded to her, was insurance company informed,
their response or lack thereof leading up to present action; students may use your own facts to
supplement the given facts provided it does not detract from the core issues).

7. Despite demand, the defendant refuses and/or neglects to pay the aforesaid amount and
interest to the plaintiff.

Wherefore the plaintiff claims from the defendant: (prayer)

1. payment of the amount of …. [remember jurisdictional limits from CIV3701; > R 400 000,00 if
this is a High Court matter; < R 400 000,00 if magistrate’s court matter; note distinction
between district courts and regional courts from CIV3701]

2. Interest on the amount of …..

3. Costs of suit.

4. Further and/or alternative relief.

Signed at…. on this….. day ….. of ……..

Signature by plaintiff’s counsel……/ addressed to Registrar

Signature by plaintiff’s attorney……

(15)

3
2 Students need to look at direct evidence, indirect evidence, opinion evidence and
credible evidence having regard to the given facts. You need to define these types of
evidence, give examples of these types of evidence and apply the law to the given facts.
You must elaborate in your answers.

 Direct evidence: refers to eye-witness evidence. It is evidence that witnesses

perceive using their own senses such as, sight, hearing, touch, taste and smell.
Different witnesses perceive the action differently.
Examples: Evidence by Mrs Smith and /or her children, evidence by any witnesses
to the accident, documentary evidence such as contract, cession document,
relevant identity documents, birth certificates, marriage certificate, death certificate,
municipal plans of intersection/street, exhibits and so on.

 Indirect evidence: How does it differ from direct evidence? You must elaborate.
The most common form of indirect evidence is circumstantial evidence.
Circumstantial evidence would help prove the facts supporting your theory of the
case. Examples of indirect evidence: circumstantial evidence, evidence tendered
by police officer arriving at the scene of the accident and so on.

 Opinion evidence: is another form of indirect evidence. It refers to evidence

tendered by experts: medical experts, assessors, insurance claim consultants,
panel beater, handwriting expert, executor and so on.

 Credible evidence: It refers to evidence that establishes that an item of direct or

indirect evidence is credible or reliable. For example, a suggestion in cross-
examination that the witness has poor eyesight/short-sighted as he/she wears
prescription glasses; the witness can dispute this by calling his optometrist to testify
on his/her behalf in court.
You need to elaborate on the above to achieve higher marks. (10)

3 Students need to discuss what is an opening statement in civil trials and draft the
opening statement applicable to the given facts.
The opening statement plays an important role in the process of persuasion, and it is the
beginning of the process of persuasion by means of oral advocacy.
The example in the textbook is a good example and the basic principles/format here
should be followed. Remember the question refers to an opening statement in a civil
trial. In drafting the opening statement: use a heading, use numbering, be logical, apply
the given facts, be brief, mention what the issue/s are, identify the evidence, refer to the
techniques and apply to the facts when drafting. You need to introduce the court to the
issues (including Rule 37 conference if it is applicable) and relevant evidence (witnesses,
exhibits etc) to be led in the opening statement.

4
 TLI4801/201

IN THE NORTH GAUTENG HIGH COURT, PRETORIA (Students can refer to an appropriate
High Court)

Case number: XXXX (insert)

In the matter between:

Plaintiff (insert name for example, Mrs A Smith)

And

Defendant (insert name, for example, ABC Insurance Company)

Opening statement in Mrs Smith’s case no XXXX

1. May it please the Court, … this is an action for an outstanding payment in respect of an
insurance policy…

2. The issues between the parties as they appear from the pleadings are: (address the issues
and number the issues; refer to Rule 37 if applicable)…

3. I intend calling the following witnesses on behalf of the plaintiff (name them and elaborate on
their role: plaintiff, relevant witnesses/experts)…

4. Deal with the exhibits here if applicable

5. Summarise the evidence of the main witness and elaborate on relevant features of the xhibits.
6. if it pleases the court, I now call the plaintiff as the first witness…

Insert name, signature and address of plaintiff’s attorney/counsel

(15)
[50]

5
ASSIGNMENT 02: SEMESTER 02

UNIQUE NUMBER: 720262

The answers to this question are to be sourced from Palmer, R & McQuoid-Mason, D
Basic Trial Advocacy Skills: Chapter 1

1. Trial lawyer’s personal responsibility for his own or her own conduct.

In the heat of the battle, a lawyer’s ethical obligation to represent his client zealously in the
adversarial system may tempt him to sacrifice integrity, in order to achieve a short-term goal. It
must always be kept in mind that a trial lawyer is not merely a hired mouthpiece. He must
exercise independent judgement or a hired gun. Thus, he may never be an instrument of fraud,
or be a party to misleading the court. His word is his bond. He should never compromise his
personal standards of integrity for any client. There are no exceptions.

Thus, whilst Crooked Face must defend his client to the best of his ability, he must always keep
in mind his duty as a court official, which is to act with integrity at all times. (5)

2. Trial lawyer’s duty to inquire into client’s version.

There is, in principle, no duty on trial lawyers to enquire as to whether their clients are telling the
truth or not. However, where the instructions or other information are such as to cause the
lawyers to doubt the reliability of such information, they must accordingly investigate. Where
possible, the lawyer must check the truth of what his client tells him, to the extent that such
statements will be relied upon by the court. (5)

3. Client insisting on pleading guilty against advice of counsel

Where the accused person informs their lawyer that they did not commit the offence with which
they are charged but insist on pleading guilty for reasons of their own, defence lawyers should
use their best endeavours to persuade them to plead not guilty. If the client persists in their
guilty plea, against the advice of counsel, the lawyer may continue to represent them. However,
the lawyer may only do so after having advised the client of the consequences of such a plea.

The lawyer must also advise the client that what can be submitted in mitigation can only be on
the basis that the client is guilty. Thus, the lawyer cannot argue in mitigation that the facts are
such that the elements of the offence have not been established, after pleading guilty. In the
context of South African legal practice, if there is doubt about the client's guilt, his lawyer should
insist on a not guilty plea being entered or be entitled to withdraw from the case should the
client nor consent to the not-guilty plea. In the case in point, Crooked Face can, at the very
least, try and convince Honest to do the right thing, namely, to allow Baby Face to take
responsibility for his actions. If Crooked Face does not succeed in this regard, then he should
withdraw as the attorney/lawyer of record.

Client privilege and the duty not knowingly to mislead the court

As a general rule, trial lawyers may not divulge to the court, or to any other person, information
confided to them by their clients. It is submitted however that, as the confidence belongs to the
client, such a disclosure could be made if the client, with full knowledge and appreciation of the
consequences of the disclosure, consents thereto.

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 TLI4801/201
As a general rule in criminal cases, a defence lawyer may not, without his client's consent,
disclose facts known to him concerning his client's character or antecedents. However, the
lawyer must not knowingly put forward, or let his client put forward false information with the
intention to mislead the court. Likewise, a defence lawyer must not indicate his agreement with
information that the prosecution puts forward which he knows to be false. Crooked Face cannot
be seen to be misleading the court by knowingly presenting information which is untrue.

As suggested previously, the best option at his disposal, in the circumstances, is to withdraw as
the lawyer of record. (10)

4. Trial lawyer's right to choose appropriate method of presenting case

The English Law Society rules concerning civil matters provide that trial lawyers have the
implied right to present their client's case at the trial or hearing in such a way as they consider
appropriate. Thus, if the client's express instructions do not permit the lawyer to present the
case in a manner which they consider to be the most appropriate, the lawyer may withdraw from
the case, after seeking the approval of the court. Such withdrawal, however, must be done for a
good cause, and, where possible, in such a manner that the client's interests are not adversely
affected. Modern views concerning client autonomy, however, would seem to indicate that a
lawyer should give the client an idea of the options available concerning a particular course of
conduct, and seek to get the client's approval for the method chosen. ln criminal cases in South
Africa, however, the accused has a right to testify in his defence, even if his lawyer's advice is
not to testify. Should the client insist on testifying against his lawyer's advice, this would not be
a ground justifying withdrawal by the lawyer. (See R v Matonsi 1 958 (2) SA 450 (A)). (5)
(25)

Question 2

The answers to this question are to be sourced from J Engelbrecht, Morris Technique in
Litigation (2010) Chapter 19.

1. The lawyer must get thoroughly acquainted with the facts and know what the case is
about. The lawyer must insist on a brief that contains the full particulars of the charge in
the lower courts or the indictment in the Higher Court; obtain copies of all statements in
the police docket as well as documentary evidence. The lawyer must study these
documents in preparation for the consultation. The trial lawyer will also study the relevant
law, case law and authorities. (2)

2. The strategic plan contains a definition of the crime/s levelled against the accused by the
state, so that the elements are always available to the lawyer. The strategic plan is the
basis on which the lawyer conducts his/her trial. The relevant case law must be studied
and the lawyer must take note of the leading judgments where it refers to each of the
elements. The lawyer must also study the elements of the relevant statutory crimes. The
relevant case law must also be studied to ascertain the interpretation given to the section
by the relevant judgments. (3)

3. The lawyer must find out about the damage that his client has done and investigate every
occasion on which his or her client met with a member of the police force between the
date of the offence and the consultation with himself. The lawyer must investigate the
matters and ascertain the truth. (2)

7
4. As a cautionary rule, lawyers are advised not to consult with their clients in the presence
of supporting witnesses and vice versa. Legal professional privilege applies between
attorney and client and it does not extend to outsiders who are at the consultation. This
includes witnesses and those individuals who attend the consultation as a stenographer,
an interpreter or the legal representatives. Therefore, lawyers should generally consult
with witnesses away from their client’s presence and be careful about what they disclose
to them regards the defence of their clients. The reason not to disclose anything to the
supporting witnesses is to avoid them blurting anything out in the witness box, which may
prejudice the client’s case. (5)

5. A lawyer must prepare his client for the ordeal in the witness-box. The idea is to appraise
you client about the problems that may arise and not inform him how to answer them.
The primary function of the lawyer is to place the defence version coherently and
chronically before the Court. The witness must be told to always tell the truth, take his
time and to answer a question especially during the cross-examination, to ensure that the
question is understood. The witness must be told that if he or she is unsure to ask that a
question be repeated, to only answer the question and not to volunteer facts, to use plain
language and not to lose his or her temper. The witness must also be told not to argue
with the cross-examiner and to make and keep eye contact with the court. Witnesses
should also be advised to stand whilst testifying and to be properly dressed.

The witness must be prepared for his testimony. The witness must know the
chronological order in which his testimony will be presented. It is essential that the
witness knows the facts that he has to testify about, in what form the questions will be put
and how to react to a particular question. The court situation should be stimulated, and
the witness should be taken through his evidence with due regard to the basic principles
of how to conduct the examination in chief. Possible problem areas such as, previous
inconsistent statements, family ties, improbabilities in the version of the witness etc must
also be addressed and explained. (10)

6. This may be a vexed question. If your client insists on doing so, you should dissuade
him, although the courts have often said that the sentence should not be more severe
because the accused has denied his guilt. Thus, the accused should not be given a more
lenient sentence as a reward for having pleading guilty. Some attorneys advise their
clients not to plead guilty as they believe that by calling upon the state to prove its case,
the client has nothing to lose and everything to gain. (3)
(25)
[50]

Regards,

Prof F Cassim
Department of Criminal and Procedural Law

8
 TLI4801/201/2/2018

Tutorial Letter 201/2/2018

Techniques in trial and litigation

TLI4801

Semester 2

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2018-S1/S2, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa. However, in order to
support you in your learning process, you will also receive some study material in printed
format.

BARCODE
1 INTRODUCTION
Dear Student

This tutorial letter contains model answers to Assignments 01 and 02 for the 2nd Semester of
2018. Please read its content carefully.

MEMORANDUM

Assignment 01: Semester 02

NB: Some of the answers to the Questions in this Assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 3rd
edition (2012 LexisNexis).

1. Particulars of Claim
According to the merits presented in the statement, no disputed facts are set out
explicitly. However, in litigation certain facts are usually contested. The student can set
out disputed facts in any manner that he or she chooses. The marks awarded in this
regard are generally guided by the analyses and reasoning which is proffered by the
student in answering the question.
You were required to assess all losses Anne Smith suffered in your particulars of claim. In other
words, your particulars of claim must include all general and special damages, see Evins v
Shields Insurance Co Ltd 1980 (2) SA 814 (A). In this respect, claims for Anne Smith’s children
would have to be filed in the same legal action, where Anne Smith will stand as a guardian
since her children’s age will deprive them of the capacity to sue. Thus, it was essential for
students to consider the losses suffered or likely to be suffered by Anne Smith in totality. It is
also necessary for students to draft particulars of claim in a manner that would be acceptable to
a court of law. Remember, this course is designed to prepare you in respect of the process of
litigation, and to enable you to gain practical experience in filing claims at a court of law. We
also advised you to be imaginative, and to invent some of the information. Hence, we moved
the accident from Durban to Pretoria. So, we will be mindful of any relevant additions. The
particulars of claim for Anne Smith should have been drafted in the manner below.

North Gauteng High Court

Case no 122 [2018]

Between
Anne Smith FIRST PLAINTIFF
Anne-Elise Smith (guardian Anne Smith) SECOND PLAINTIFF
James Andrew Smith (guardian Anne Smith) THIRD PLAINTIFF
And

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 TLI4801/201

Road Accident Fund (RAF) DEFENDANT

PARTICULARS OF CLAIM

1. The First Plaintiff is, an adult female person, Anne Smith who was born on 02 February
1970, an unemployed widow currently residing at 9 Van Wouw St, Groenkloof, Pretoria.
1.1 The Second Plaintiff is, a female person who is a minor, born on the 17th of April
2005, and is represented by the first plaintiff as guardian.
1.2 The Third Plaintiff is, a male person who is a minor, born on the 23rd of August 2009,
and is also represented by the first plaintiff as guardian.
2. The deceased, Mr John William Smith, was born on the 6th of September 1968, and he
married Anne Smith on the 14th of February 2003. The first and the second plaintiffs were
conceived of that marriage.
3. The Defendant is ROAD ACCIDENT FUND, (“the RAF”) a body entitled to sue and be
sued in its own name by virtue of the provisions of the Road Accident Fund Act 56 of 1996 (the
Act) with its principal place of business situated at 2, Eco Glades Office Park, 420 Witch-Hazel
Ave, Centurion, Pretoria and 38-44 Ida St, Lynnwood Glen, Pretoria.
4. The ROAD ACCIDENT FUND is liable to handle claims arising from motor collision
where the identity of neither the owner nor the driver has been established.
5. On or about the 01st of January 2017 and at intersection of Main street and Long street,
in Waterkloof, Mr Smith and his two children were passengers in a certain motor vehicle, a
Honda with registration letters and numbers AA 01 BB GP driven by Mrs Smith when it collided
with a certain Toyota Fortuner with registration number ZZ 01 XX GP driven by Mr Joe Soap
(Hereinafter referred to as the insured driver). The collision between the two vehicles resulted in
the death of Mr Smith, and injuries to the first, the second and the third plaintiffs.
6. The aforementioned collision was caused solely as the result of negligent driving of the
insured driver in one or more of the following:-
6.1. He failed to keep a proper look out
6.2. He failed to avoid the collision when he could and should have
done so.
6.3. He was traveling at an excessive speed in the circumstances.
6.4. He failed to obey the rules of the road.
6.5. By failing to exercise proper control over the insured vehicle.
7. The deceased owed the plaintiffs a duty of support, as he was the sole breadwinner. The
deceased would have continued to support the plaintiffs and the plaintiffs needs that support.
The Plaintiffs loss of support can be deduced to be:

3
7.1. The loss of support that the First Plaintiff would suffer as a result of the death of Mr Smith
is in the amount of R 959 999,94
Calculations: Mr Smith received an annual salary of R35 000 × 12 = R 420 000
This amount has to divided by 2 since half of the deceased salary was used for support, thus R
210 000 represent the amount that Mrs Smith would have used to support her family if it was
not for the death of the breadwinner. However, section 17(4)(c) of the RAF Act 56 of 1996, limits
the amount of maintenance or support to R160 000 per annum. R160 000 must be divided by
three to deduce the loss of support that the first plaintiff would suffer (160 000/3 = R 53333,33).
This amount (R 53333,33) would have to be multiplied by the number of years of life expectancy
of the first plaintiff. Let’s assume the plaintiff’s life expectancy to be 70 years, therefore from the
accident henceforth the plaintiff would live 23 years. But Mr Smith would have retired at the age
of 65 years, which means (2017 – 2035) 18 more years after his death. Thus the deceased
would have supported the plaintiff 18 more years. Accordingly 18 × 53 333,33 = R 959 999,94.
7.2 The loss of support that the Second Plaintiff would suffer as a result of the death of Mr
Smith is in the amount of R 319 999,98.
Calculations: The second plaintiff loss of support per annum amounts to 53 333,33 (as already
calculated). Although, the second plaintiff was badly injured, according to medical reports she
will recover and lead a normal life. This then means that upon reaching the age of majority (18
years) the second plaintiff according to the law can no longer claim support or maintenance,
(see Langa v Road Accident Fund (2014/67644) [2016] ZAGPPHC 876 (22 September 2016)).
At the time of Mr Smith death the second plaintiff was approaching the age of twelve. This
means that the second plaintiff would have depended on the support from the deceased for 6
years. Consequently, the loss is R 53 333,33 × 6 = R 319 999,98.
7.3 The loss of support that the Third Plaintiff would suffer as a result of the death of Mr Smith is
in the amount of R 959 999,94.
Calculations: The third plaintiff is medically declared to be paralyzed for life. The amount of loss
of support is calculated taking life expectancy of both parties into account. Mr Smith life
expectancy is 70 years, but he would have worked until the age of 65. This means that he
would have supported the plaintiff for (2035 – 2017) 18 more years. The life expectancy of the
third plaintiff has been shortened to 40 years. Mr Smith, is estimated, would have worked for 18
more years if it wasn’t for the accident, while the third plaintiff, is estimated, will live for (2044 –
2017) 27 years. The shorter of the two estimates should be used to determine loss of support.
Thus 18 × 53 333,33 = R 959 999,94.
8. As a result of the said collision, the first plaintiff sustained multiple bodily injuries:
8.1. A broken leg (left tibia and fibula)
8.2. Head injuries (loss of consciousness, concussion, and permanent facial scarring)
8.3 Bruises and abrasions on the right side of the body
8.4 The aforesaid injuries sustained by the first plaintiff in the collision amounts to damages
of R 263 920 (facial disfigurement 33 000; concussion 94 000; broken leg 120 000; body
bruises 16 000 and shoe alignment for shortened leg 40 × 23 (life expectancy)).
9. As a result of the said collision, the second plaintiff sustained multiple bodily injuries:
9.1. A broken pelvis

4
 TLI4801/201

9.2 The aforesaid injuries sustained by the first plaintiff in the collision amounts to damages
of R 623 360 (pelvis 578 000 and physio-therapy 420 × 3 × 4 × 9).
10. As a result of the said collision, the first plaintiff sustained multiple bodily injuries:
10.1. Partial paralysis on the left side of the body
10.2. Head injuries (involving loss of consciousness and permanent loss of some intellectual
and motor function)
10.4 The aforesaid injuries sustained by the first plaintiff in the collision amounts to damages
of R 2 741 000 (hemiplegia 1 523 000; brain injury 1 176 000 and therapy 1 750 × 24).
11. As a result of injuries sustained in the accident, the Plaintiffs
11.1. Experiences pain and suffering.
11.2. Suffered loss of amenities of life.
11.3. Suffered loss of earning capacity.
11.4. Were disfigured.
12. The nature, effect and duration of pain and suffering, loss of amenities of life,
disfigurements and disability are set out in the medical legal reports.
13. A claim for compensation as prescribed by Section 24 of the Act has been submitted to
the Defendant on the 03 October 2017 and the requirements of the Act and regulations have
been complied with insofar as may be necessary.
14. The Plaintiffs have suffered serious injuries as contemplated in the Act and are
consequently entitled to damages for non-pecuniary loss, as provided in the Act and has
complied with the peremptory procedures prescribed by the Act and the Regulations.
15. Notwithstanding the expiration of 120 days from the date on which the Plaintiff lodged the
claim the Defendant has not compensated the Plaintiffs for the aforesaid damages or any part
thereof.
16. In the premises the Defendant is liable to compensate the Plaintiffs the Sum of R 5 868
279,9 which amount or any portion thereof the Defendant has failed to pay.

WHEREFORE the Plaintiffs prays for judgment as follows: -

1. Payment of the sum of R 5 868 279,9

2. Interest on the aforesaid amount according to law
3. Costs of suits;
4. Further and / or alternative relief.

DATED AT PRETORIA ON THIS THE 26th FEBRUARY 2018.

5
Counsel for the Plaintiff Council for the Defendant
(35)

2. Advice on evidence
Please note that there is no “right” and “wrong” answer in respect of the answer which
may be proffered by the student this regard. In other words, none of the advice
discussed below may be said to be the most appropriate. Marks shall be awarded
according to the student’s arguments and reasoning. The answers for the question are
sourced from various authorities including uniform rules of court.

(2) Advising Mrs Smith on evidence of loss of support would require you to considered
circumstances that warrants her to seek such compensation. Injuries sustained during collision
may rendered the plaintiff incapable of supporting themselves, similarly the plaintiff may not be
equipped to fend for themselves after the death of the breadwinner. The information evidencing
such losses would be vital in convincing the court to award damages.
When a plaintiffs seek compensation for loss of support, they must indicate that indeed they are
unable to support themselves. The relationship between the plaintiff and the deceased must be
established as a point of departure. This is essential to establish the degree of dependency. In
this instance, a marriage certificate or any sort of evidence that can establish the relationship
between the plaintiff and the deceased must be furnished. The plaintiff must prove that he, she
or they were depended on the deceased for support. For instance, it is essential for the plaintiff
to indicate that he/she is not skilled enough to generate sufficient income to support him/herself
upon the death of a breadwinner, or the injuries sustained in the accident precludes him/her
from earning in the future. This may require that additional evidence that demonstrates the
plaintiff incapacity to support him/herself be submitted. Therefore, any party to proceedings in
which damages or compensation in respect of alleged bodily injury is claimed shall have the
right to require any party claiming such damage or compensation, whose state of health is
relevant for the determination thereof to submit to medical examination. It is likely that RAF will
submit a notice to the plaintiff indicating that the injured will have to undergo medical
examination and specifying the nature of the examination required, the person or persons by
whom, the place where and the date (being not less than fifteen days from the date of such
notice) and time when it is desired that such examination shall take place, and requiring such
other party to submit himself for examination then and there. The person whom it is required to
have examination may have their medical adviser present at such examination. RAF may,
alternatively, request the plaintiffs to submit any medical reports, hospital records, X-ray
photographs, or other documentary information of a like nature relevant to the assessment of
such damages, and to provide copies thereof. If the information obtained is insufficient, a
second and final medical examination may be sought. All full reports of the examination will
have to be submitted to the court.
Similarly, when a plaintiff needs to call an expert witness, a notice must be delivered not less
than fifteen days before the hearing, and a summary of such expert's opinion and his reasons
therefor must be delivered not less than ten days before the trial. It would be essential for Mrs
Smith to have an expert to testify on the injuries of the third plaintiff, thus it is advisable to
consult an expert timeously.

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 TLI4801/201

The plaintiff needs to furnish certain documents to support her evidence for loss of support. First
and foremost, the plaintiff needs to produce proof of the amount the deceased was earning.
Thus the plaintiff ought to produce salary slip of the deceased. In addition, the plaintiff should
produce the deceased’s or her bank statements to indicate the amounts that were used to
support the family. This should be accompanied by the relevant documentation indicating, the
amounts used to pay for various family necessities, e.g. municipal rates, school fees, monthly
expenditure on food, annual clothing costs and transportation costs. Evidence pertaining to any
plan, diagram, model or photograph will be inadmissible unless a notice stating the intention to
submit is tendered not less than fifteen days before the hearing.
(15)

[50]

Assignment 02: Semester 02

Question 1
IN THE MAGISTRATE COURT FOR THE DISTRICT OF TSHWANE-NORTH
HELD AT PRETORIA NORTH
Case No.:
In the matter between:
APPLICANT

And

THE STATE

______________________________________________________________
AFFIDAVIT IN SUPPORT OF BAIL APPLICATION

1. I, the undersigned, Violent Mashaya, hereby state under oath that:

2. I am the Applicant in this matter

3. I am of sound and sober mind and I make this statement voluntarily without being influenced
thereto.

4. I seek humbly relief from this Court to be released on bail. I respectfully submit, as I will

demonstrate herein, that the interests of justice permit my release on bail.

7
4. The contents of this document are within my personal knowledge, and to the best of my

knowledge and belief, both true and correct, unless otherwise the contrary exists.

5. I herein state that I have been informed by my legal representative that the record of this bail

application shall form part of the record of the trial following this application. Further, that

whatever I say during this bail application can and may be used against me, subsequently,

during trial.

6. I understand the charges that I am facing. I confirm that it has been explained to me that, in

terms of section 60 (11B) of Act 51 of 1977, I am compelled to disclose whether I have any

previous convictions or pending charges against me, failing which/ or providing fall false

information, constitute an offence punishable by fine of up to R40 000 or imprisonment not

exceeding two years.

7. I further declare herein that I have no previous convictions or outstanding cases against me

8. I hereby implore the court to take into consideration the following aspects regarding the
application:

9. The interests of justice justify my release on bail as follows:

9.1 I deny all the allegations against me. To this extent, I welcome the opportunity to prove my
innocence at trial

9.2 Even though I am aware of the identities of all the potential witnesses, I submit that I will not
interfere with any of them, either directly or indirectly.

9.3 I undertake to attend all subsequent court proceedings in the quest to prove my innocence

9.4 I will endeavour not to commit any of the offences listed in Schedule 1 of the Criminal
Procedure Act 51 of 1977

9.5 I have no intention of undermining or jeopardising the objectives or proper functioning of the

criminal justice system.

10. I further request the court to take into account the following personal circumstances:

8
 TLI4801/201

10.1 I have been gainfully employed at Shoprite, Silverton for the past seven (7) years

10.2 I earn R 8000 per month

10.3 I am currently single

10.4 My salary supports myself, my mother and three siblings

10.5 I can afford bail of R 1000 if it is fixed by the court

I UNDERSTAND THE CONTENTS OF THIS AFFIDAVIT. I HAVE NO OBJECTION TO TAKING

THE PRESCRIBED OATH. I CONSIDER THE SAME TO BE BINDING ON MY CONSCIENCE.

Dated and signed at on this day of 2017

Signature of deponent

I CERTIFY THAT THE DEPONENT HAS ACKNOWLEDGED THAT HE/SHE KNOWS AND
UNDERSTAND THE CONTENTS HEREOF THAT WAS SWORN TO BEFORE ME AND THE
DEPONENT’S SIGNATURE WAS PLACED THEREON IN MY PRESENCE.

Dated and signed at on this day of 2017

Commissioner of Oath

(23)

9
Question 2

PLEASE NOTE, IN REGARD TO THIS QUESTION, THAT ANY OF THE OTHER

COMPETENT VERDICTS OF MURDER ARE APPLICABLE. TO THIS EXTENT, YOUR
ANSWER MAY BE FRAMED IN THE CONTEXT OF A CHARGE OF Assault with intent to
cause grievous bodily HARM OR EVEN SIMPLE Assault.

IN THE MAGISTRATE COURT FOR THE DISTRICT OF TSHWANE-NORTH

HELD AT MAMELODI
Case No.:
In the matter between:
APPLICANT: VIOLENT MASHAYA

And

THE STATE

______________________________________________________________
STATEMENT IN TERMS OF SECTION 112 (2) OF THE CRIMINALPROCEDURE
ACT 51 OF 1977

I, the undersigned, Violent Mashaya state hereunder that:

1.
I am the accused in this matter. I am charged with the offence of culpable homicide, and I
understand the charge
2.

My legal representative has explained the legal consequences of this statement and I hereby
provide that I understand same.
3.
I confirm that I make this statement freely and voluntarily whilst in my sane and sober mind.
4.
I have been informed of my constitutional rights, and I know that I have the following rights,
amongst others:

10
 TLI4801/201

4.1. The right to be presumed innocent until proven guilty beyond a reasonable doubt;

4.2. The right to remain silent and not to testify during the proceedings; and

4.3. The right not to be compelled to give self-incriminating evidence. (1)

5.

I know and understand that the court may convict me only on the basis of this statement without
the prosecution leading any evidence against me.
6.

I admit that on the 12th of March 2015 I was at 20584 Mamelodi West.

7.

I admit that on the day in question I did unlawfully and negligently cause the death of the
deceased, Victim Skepsel.
8.

I encountered the deceased at the above address with my girlfriend, Poppy Floozy. The
deceased attacked me with a chair when I tried to make conversation with Poppy. In the end, I
subsequently relieved the deceased of the chair and continued to repeatedly hit him with it.

9.

I admit that my initial intention was merely to ward off the attack from the deceased. I further

concede, however, that I should have ceased with my attack just as soon as I hit him a few

times around the body. To this extent, I went beyond the ordinary call for private defence.

10.

I submit that my actions were unlawful and negligent, and that I have no valid defence in law for

my conduct.

11
 11.

I place myself at the mercy of the court in this regard.

Dated and signed at Pretoria on this 15th day October 2015

Signature of deponent Signature of legal representative

(25)

[50]

12
 TLI4801/202/1/2018

Tutorial Letter 202/1/2018

Techniques in trial and litigation

TLI4801

Semester 1

Department of Criminal and Procedural Law /

IMPORTANT INFORMATION:
This tutorial letter contains important information
about the April 2018 examination for your module.

Define tomorrow
 CONTENTS

1 INTRODUCTORY REMARKS

2 INSTRUCTIONS TO ANSWER THE MAY/ JUNE 2018 EXAMINATION (NON-

VENUE BASED EXAMINATION)

3 MAY/ JUNE 2018 EXAMINATION (NON-VENUE BASED EXAMINATION)

4 DECLARATION OF AUTHENTICITY

5 CO CONCLUDING REMARKS
SLO

1. INTRODUCTORY REMARKS

This examination represents the final summation assessment (non-venue based

assessment) in respect of this module. Therefore, do not contact any of the lecturers for
guidelines regarding the completion of this assessment.

2. INSTRUCTIONS TO ANSWER THE APRIL 2018 EXAMINATION (NON-VENUE

BASED EXAMINATION)

PLEASE COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN ANSWERING THE

EXAMINATION (NON-VENUE BASED EXAMINATION).

2.1
Due date for examination: 18 May 2018

Unique number: 785550

Submission period: 18 – 25 May 2018

The myUnisa system will open for submission of your answers on 18 May 2018 at
08:00, and it will close on 25 May 2018 at 24:00 (midnight). You may submit your
portfolio assessment answers at any time between these times, and you may only
submit during this period. At the expiry of this period, the system will close and you
will no longer be able to submit your answers. NO LATE SUBMISSIONS WILL BE
ACCEPTED since this assessment counts as your examination for this module.

You are advised to submit your examination answers as soon as possible. NO

EXTENSION FOR LATE SUBMISSION WILL BE GRANTED.

PLEASE NOTE: Tutorial Letter 202/1/2018 will only be available on myUnisa during
the period of submission, as it serves the same purpose as an examination paper.
Once the submission closes on the system, this tutorial letter is automatically
removed and will no longer be available and can no longer be accessed.

2
 CMP2601/202

2.2 You must submit your examination answers as a single document in PDF-format, and
may not be submitted with security restrictions under the “protect document”-option.
Security restrictions interfere with the electronic marking program used and prevent
the electronic marking of assignments. Portfolios e-mailed to lecturers WILL NOT BE
ACCEPTED as assignments must be registered and processed on the system by the
Assignment Department. If you submit your portfolio in an incorrect format, or if you
submit the portfolio with security restrictions under the “protect document”-option, the
portfolio will simply be cancelled and you could fail this assessment (which will result
in you having to register for this module again next semester).

As you may only submit one document, you must ensure that everything you want us
to assess is included in the ONE document that you submit. No additional files will be
accepted either on myUnisa or via e-mail. This includes the declaration of
authenticity! A second submission automatically replaces the first submission on the
system, and a submission comprising only a declaration of authenticity will thus result
in a zero-mark.

Ensure you keep a copy of the portfolio that you submit AND keep evidence of your
submission on the myUnisa platform. Also, FOLLOW ALL THE STEPS REQUIRED
FOR SUBMISSION. If you fail to do so, the system will show that you did not submit
the portfolio assignment, and your examination result will read “absent from
examination”.

All queries regarding problems with myUnisa must be addressed to the Assignment
Department or the ICT Department and not to the lecturers. We cannot provide any
technical assistance and also do not have access to the system.

2.3 The examination answers must contain your full names, student number, module
code, unique number and declaration of authenticity.

2.4 The examination counts 100 marks and consists of TWO (2) questions. Each answer
must commence on a separate page. Ensure that you give full reasons for each
answer. A mere "Yes" or "No" answer will not earn you any marks. Answer ALL the
questions.

2.5 Number your answers correctly and write your answers in your own words. Students
will lose marks if their answers indicate copying, plagiarism or collaboration with other
parties. Scripts may also be investigated for possible disciplinary proceedings in
these circumstances.

Your answers must be typed in Arial 12pt with 1.5 line spacing. Your answers must
appear on one side of the page. Leave a space between each answer.

2.6 Your answers must contain complete references to sections in legislation, principles
and relevant case law. Students will be penalised for incomplete or incorrect
references..

2.7 Please ensure that you complete and sign the DECLARATION OF AUTHENTICITY
at the end of this tutorial letter, and attach the signed declaration to your examination
answers. You may retype the declaration, or you may attach the signed declaration
to your answers in any other manner. EXAMINATION ANSWERS WITHOUT
SIGNED DECLARATIONS WILL NOT BE MARKED.

3
2.8 Please ensure that you submit the correct assignment – a wrong assignment will
result in the cancellation of your assignment. If the correct assignment is not
resubmitted before the due date, a zero-mark will be.

3. MAY/ JUNE 2018 EXAMINATION (NON-VENUE BASED ASSESSMENT)

QUESTION PAPER

Due date for examination: 18 May 2018

Unique number: 785550

Submission period: 18 – 25 May 2018

PORTFOLIO EXAM: MAY/ JUNE 2018

TECHNIQUES IN TRIAL AND LITIGATION (TLI480-1)

INTRODUCTORY REMARKS:

This type of assessment (non-venue based assessment) represents the final assessment
in this module. Therefore, do not contact any of the lecturers for guidelines regarding the
completion of this assessment as it is considered a formal examination, which must be
completed independently.

FORMAL REQUIREMENTS:

COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN WRITING THE

EXAMINATION (NON-VENUE BASED ASSESSMENT)

4
 CMP2601/202

PLEASE NOTE THE FOLLOWING RULES:

(1) THE PAPER CONSISTS OF TWO QUESTIONS, NAMELY 1 and 2. BOTH

QUESTIONS ARE COMPULSORY.

(2) THE ANSWERS IN THIS QUESTION PAPER ARE TO BE OBTAINED FROM YOUR
PRESCRIBED STUDY MATERIAL, NAMELY, THE PRESCRIBED TEXTBOOK, CG
Marnewick Litigation Skills for South African Lawyers, 3rd edition, (2012
LexisNexis) and tutorial letter 201.

(3) ANNEXURES A1, A2, A3 and B, CONTAIN THE MOST IMPORTANT

INFORMATION WHICH YOU REQUIRE TO COMPLETE THE PORTFOLIO.
PLEASE READ THESE ITEMS CAREFULLY BEFORE PROCEEDING.

(4) YOU ARE REQUIRED TO EXHIBIT OWN INITIATIVE WHEN ANSWERING

QUESTIONS, IN ORDER TO SHOW THAT YOU UNDERSTAND THE CONTENT.
IN OTHER WORDS, YOU MUST, AS FAR AS POSSIBLE USE YOUR OWN
WORDS WHEN WRITING YOUR ANSWERS. THE WORD-FOR-WORD
REGURGITATION OF ANSWERS FROM THE STUDY MATERIAL WILL NOT BE
REWARDED WITH FULL MARKS.

(5) THE QUESTIONS MUST BE WRITTEN OR TYPED. YOUR COMPLETED

ANSWERS MUST THEN BE CONVERTED INTO PDF FORMAT AND SUBMITTED
ONLINE IN THE SAME MANNER THAT YOU SUBMIT ALL OTHER
ASSIGNMENTS ONLINE.

5
 The questions hereunder are based on the statements below, which are marked as
Annexures A1, A2, A3 and B, below.

Question 1

Your name is Clever Attorney. You are approached and briefed by the client, Violent
Mashaya, to defend him on against the charges preferred by the State, represented by Cruel
Prosecutor.

The prosecutor has provided you further particulars, which include the copies of witness
statements marked Annexures A1, A2 and A3, and a copy of the charge sheet which the
state intends to use in the subsequent trial. The charges in the charge sheet read as follows:,

(1) The accused, Violent Mashaya is accused of the crime of Murder in that upon or about
12 March 2015 and at or near 20584 Mamelodi West in the regional division of North
Gauteng, the accused did unlawfully and intentionally kill Victim Skepsel, a human being,
assaulting him with a chair;

(2) The accused, Violent Mashaya is accused of the crime of Rape, in contravention of s 3
(1) (a) of the Sexual Offences Act 12 of 2009, in that upon or about 12 March 2015 and at
or near 724 Mamelodi East in the regional division of North Gauteng, the accused did
unlawfully and intentionally have sexual intercourse with Poppy Floozy without her consent;

(3) The accused, Violent Mashaya is accused of the crime of Kidnapping, in that upon or
about 12 March 2015 in the regional division of North Gauteng, the accused did unlawfully
and intentionally deprive Poppy Floozy of her freedom of movement by forcefully removing
her from the address, 20584 Mamelodi West, and holding her without her consent; and

(4) The accused, Violent Mashaya is accused of the crime of Assault, in that upon or about
12 March 2015 and at or near 20584 Mamelodi East in the regional division of North
Gauteng, the accused did unlawfully and intentionally assault Poppy Floozy slapping her
across the face with an open hand.

The accused denies all the charges and intimates that he will plead not guilty to all the
charges. Meanwhile, during the consultation, the accused, makes certain admissions to you,
which he agrees, may be duly recorded in the subsequent trial, in order to avoid a lengthy
trial.

6
 CMP2601/202

He makes the following admissions in respect of the charges:

(1) In respect of the charge of Murder, the accused admits that:

(a) he was at the scene of the offence;

(b) he was involved in a physical altercation with the deceased;

(c) he assaulted the deceased with a chair;

(d) the injuries inflicted by his actions caused the death of the deceased;

(e) the injuries set out in the medical report are consistent with the cause of death of the
deceased.

However, he denies that he acted unlawfully.

(2) In respect of the charge of Rape, the accused admits that:

(a) had sexual intercourse with the complainant, Poppy Floozy on the date in question;

(b) the DNA swabs drawn from the genitals of the complainant, Poppy Floozy, are consistent
with his own DNA.

His contention is, however, that the sexual intercourse between himself and the complainant
was consensual.

(3) In respect of the charge of Kidnapping, the accused admits that he drove away with the
complainant in his motor vehicle from the address, 20584 Mamelodi West.

However, he makes the following submissions, namely, that:

(a) he removed the complainant from the scene for her own safety because “the crowd was
getting restless and angry”, and some of party revelers were already accusing Poppy of
“causing the whole trouble”.

(b) he did not hold the complainant, Poppy Floozy, against her will. In fact, she “begged” him
to take her away because she was afraid of what the crowd at the party might do to her if
left on her own.

7
(4) In respect of the charge of Assault, the accused simply denies that he assaulted the
complainant, Poppy Floozy, in any manner.

Based on the statements below marked Annexures A1, A2 and A3, prepare a trial strategy
which is based on the so-called proof-making model. Your preparation should be based on
the sketch set out in your prescribed textbook, CG Marnewick Litigation Skills for South
African Lawyers, 3rd edition, (2012 LexisNexis) (p. 243 Table 14.2: See also Annexure
B below).

The following hints should be taken into account in the completion of your strategy:

(1) The information which is supplied above (i.e the case information and the admissions) is
an integral part of the strategy. You will need it in order to complete some of the queries
noted in Annexure B.

(2) Whilst some aspects discussed in Table 14.2 are easily determinable, some of the items
require a measure and creativity and ingenuity on your part. In other words, you are
expected to invent some of the facts which are provided by the accused during consultation,
and which may provide the best defensive strategy and tactics for the forthcoming trial.
(60)

Question 2

Based on the facts presented below (Annexures A1, A2 and A3), approach the prosecutor
and negotiate a guilty plea in terms of s 105A of the Criminal Procedure Act 51 of 1977.
PLEASE NOTE: YOU ARE NOT REQUIRED TO DRAW UP A PLEA AGREEMENT, SUCH
AS THE ONE IN ASSIGNMENT 02 SEMESTER 01. YOU MUST, INSTEAD DISCUSS THE
MANNER IN WHICH YOU ARE LIKELY TO GO ABOUT WHEN NEGOTIATING ONE.

In your answer, you are required to:

(1) Discuss the different methods of negotiation which are mentioned in your prescribed
textbook, CG Marnewick Litigation Skills for South African Lawyers, 3rd edition, (2012
LexisNexis).

NB: Your discussion should exclude a tabulation of the advantages and

disadvantages of each strategy, as explained in tutorial letter 201. These aspects may,
however, be mentioned in passing wherever they are relevant to argue the strategy
chosen.

8
 CMP2601/202

(2) Choose the most appropriate method of negotiation. Your discussion in this regard must
elaborate fully on,

(a) why the method chosen is the most appropriate, when weighed against factors such as,
for example, the strength of the case on either side, the type charges preferred against the
accused and the available evidence; and

(b) why the other methods are not appropriate.

(3) Set out your own proposal regarding the agreement which you envisage, regarding the
proposed charges and the sentences thereto. For example, after setting out the proposed
charges and sentences you might say, “I submit that a charge of culpable homicide instead
of murder is appropriate because …” and “… a suspended sentence in respect of the charge
of assault is more appropriate because …”

Please note that the agreement must be in respect of each charge. (NB: whilst you may
take a leaf from the sentence agreement which was arrived at in Assignment 02 (par.
5), you are advised to duly compose your own sentence agreement.

(40)

TOTAL: [100]

9
 Annexure: A 1

I, Matchmaker Makopansa, I.D. No. 864408 3247 008, declare hereunder in English as
follows: I reside at 4158 Mamelodi East.

1.

The deceased in this case, Victim Skepsel, was a friend of mine. On 12 March 2015, myself,
and the deceased Vitim Skepsel attended a party at 20584 Mamelodi West. During the party
we had a few drinks. As we were busy enjoying ourselves we were joined by a lady named
Poppy Floozy. Before this day, Poppy and Victim were unknown to each other. I introduced
them because I knew Poppy from way back in high school.

2.

At some point Victim and Poppy went onto the dance floor and danced with each other.
Thereafter they disappeared for about one hour before coming back to join us. They sat
about two metres from myself and a group of revelers. They proceeded to kiss and cuddle.
Just then, the accused Violent Mashaya appeared. He accused the deceased of having a
romantic relationship with his girlfriend, namely, Poppy. He thereupon ordered Poppy to
leave with him. When she refused, he approached her, grabbed her by the wrist and
proceeded to drag her away.

3.

Victim went over to both the accused and the deceased and tried to intervene. In the
process, he verbally tried to dissuade the accused from dragging Poppy away. Violent
became very angry and told the deceased not to interfere in his affairs. Victim thereupon
grabbed a plastic chair from the floor and threatened to hit Violent with it if he did not desist
from doing what he was doing. When Violent refused to accede to this demand, Victim then
proceeded to hit him with the chair. Victim was merely trying to stop the Violent from
assaulting Poppy.

4.

Violent managed to grab the same plastic chair from the deceased and began to hit him with
it all over the body. The chair broke in the process. In the course of the fracas I realized that
Violent was in possession of what appeared like an iron rod, and hitting the accused on the
head. By now a group of other people had gathered around the accused and the deceased
and some of the people were trying to separate them.

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 CMP2601/202

5.

After the accused was dragged away, I saw the deceased lying face down in a pool of blood.
I approached him in an attempt to offer help; and noticed that he was still alive, but was
bleeding from the nose and ears. I tried to talk to him but he could not speak. An ambulance
arrived on the scene after about two hours. One of the ambulance attendants confirmed a
few minutes after arrival that Victim had, in fact, died.

6.

The police were also called. However, upon arrival it was discovered that Violent and Poppy
were nowhere to be seen. The accused was allegedly arrested one week later at the house
of his grandparents in Ga-Mashashane, Limpopo.

7.

I am familiar with, and understand the contents of this declaration. I have no objection/have
objection to taking the prescribed oath. I consider the prescribed oath as binding to my
conscience.

8.

Place: …………………..………….. Date: ……………………….……… Time: …………………

Signature: ………………………………………

9.

I certify that the above statement was taken from me and that the deponent has
acknowledge that he/she knows and understands the contents of the statement. The
statement was sworn to/affirmed before me and deponents signature/mark/thumb print was
placed thereon in my presence.

At: …………………………on ………………………at ……………………….………………..

Commissioner of Oaths

(Details to be provided on physical and postal address e.g. stamp of police station)

……………………………………………

Force number/Rank/Name - print

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 Annexure: A 2
I Poppy Floozy I.D. No. 908967 2314 999 declare hereunder in English as follows:

1.

On 12 March 2015 I attended my friend, Sindy Marara’s birthday party at 20584 Mamelodi
West. I was there on my own. After some time I joined Victim and Piet. Piet is a friend of
mine, and I knew him for many years before this incident. A few hours later my ex-boyfriend,
Violent Mashaya, arrived at the party. He saw me sitting with Victim and demanded to speak
to me.

2.

When I refused, he grabbed me by the arm and forced me to go and talk to him aside. He
continued to drag me away and even slapped me across the face with an open hand. Victim
intervened and told Violent to leave us alone. Violent replied and said to Victim: “I will kill
you for taking my woman”. Victim replied that I was not Violent’s girlfriend, and as far as he
was aware, our relationship had been terminated a few months earlier.

3.

Violent threatened to assault Victim with the bottle of beer that he had in his possession. As
Violent said these words, he let go of my arm and moved towards Victim, who was then
about two metres away from myself and Violent. Victim quickly grabbed a chair from the
floor and held it in front of himself in a defensive posture. Violent was about to hit Victim with
the bottle when Victim moved forward and started to hit Joe with the chair. A fight ensued
during which Victim and Violent grabbed each other across the body and hit each other.

4.

Other people gathered around them and tried to intervene. I think I also noticed two of
Violent’s friends by the names of Skunky and Coward, who were assisting Violent to assault
Victim. In the end, the people managed to separate Victim and Violent, but Victim remained
lying on the ground. I tried to help him up, but Violent dragged me away to his car and forced
me to leave with him.

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5.

He took me to his home in Mamelodi East where he forced me to sleep with him. The
following day I learnt that Victim had died at the party due to the injuries that he had
sustained during the fight.

6.

I am familiar with, and understand the contents of this declaration. I have no objection/have
objection to taking the prescribed oath. I consider the prescribed oath as binding to my
conscience.

Place: ………………………..…….. Date: ………………………….. Time: ……………………

Signature: ………………………………………

7.

I certify that the above statement was taken from me and that the deponent has
acknowledge that he/she knows and understands the contents of the statement. The
statement was sworn to/affirmed before me and deponents signature/mark/thumb print was
placed thereon in my presence.

At: ……………………………on …………………………at ……………………………………..

Commissioner of Oaths

(Details to be provided on physical and postal address e.g. stamp of police station)

……………………………………………

Force number/Rank/Name - print

13
 Annexure: A 3

I Spy Ndabazabantu, I.D. No. 894567 3425 998 residing at 445 Section D Mamelodi East
declare as follows in English:

1.

On 12 March 2015 I attended a party in Mamelodi East with two of my friends, Speedy and
Gonzalez. We were seated on the eastern side of the house enjoying our beer when we
heard a commission on the western side of the premises. I requested Speedy and Gonzalez
to accompany me in order to see what was going on, but they refused, saying that whatever
it was, was none of their concern.

2.

I saw everything that happened that evening. A guy that I know from high school, named
Violent Mashaya was busy arguing with another person about a girlfriend. Joe had a sharp
object in his possession and kept threatening to stab the other guy (whose name I do not
know) with it, if he did not leave his girlfriend alone.

3.

The girlfriend in question told Violent that she did not love him any more, and that she had
“found a new flame” and “was very happy”. As far as she was concerned, she said, she and
Violent “were history”. Violent started to assault girl, whereupon the other guy tried to
intervene by physically coming between Violent and the girl. All three of them fell to the floor
and the other partygoers tried to stop the fight.

4.

I later learned that the other guy who had been fighting with Violent had died. I think it was
Violent who killed him. I saw it with my own eyes. He has a previous conviction of murder.
He also killed Unfortunate Manaka some years ago.

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 CMP2601/202

5.

I am familiar with, and understand the contents of this declaration. I have no objection/have
objection to taking the prescribed oath. I consider the prescribed oath as binding to my
conscience.

Place: ………………………………….. Date: ……………………….. Time: ………………

Signature: ………………………………………

6.

I certify that the above statement was taken from me and that the deponent has
acknowledge that he/she knows and understands the contents of the statement. The
statement was sworn to/affirmed before me and deponents signature/mark/thumb print was
placed thereon in my presence.

At: …………………………………on ………………………………at …………………………..

Commissioner of Oaths

(Details to be provided on physical and postal address e.g. stamp of police station)

……………………………………………

Force number/Rank/Name - print

15
 Annexure B

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 CMP2601/202

4. DECLARATION OF AUTHENTICITY / VERKLARING VAN

OORSPRONKLIKHEID

We enclose a sample declaration for completion. Please attach the signed declaration
to your examination answers. We will not mark your examination UNLESS you attach
the signed declaration to your examination answers.

DECLARATION OF AUTHENTICITY

I,………………………………………………………………(Full name/s and

surname)

Student number: …………………………………………………..

declare that I am the author of this examination in CMP3701 I further declare

that the entire examination is my own, original work and that where I used
other information and resources, I did so in a responsible manner. I did not
plagiarise in any way and I have referenced and acknowledged any
legal resources that I have consulted and used to complete this
examination. By signing this declaration I acknowledge that I am aware of
what plagiarism is, and the consequences thereof. Furthermore, I
acknowledge that I am aware of UNISA’s policy on plagiarism and
understand that if there is evidence of plagiarism within this document,
UNISA may take the necessary action.

Date: ……………………………………………………..

Place:………………………………………………………

Signature:…………………………………………………….
(provide an electronic signature or type or write your name or surname
again)

5. CONCLUDING REMARKS / SLOTOPMERKINGS

Your results will be released by the Department of Examination Administration (DEA)

during the May/June 2018 official release period of examination results. We as
lecturers are not authorised to release any results in any manner. We wish you
success with your future studies.

Regards

Dr M T Mokoena

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