UNIVERSITY EXAMINATIONS

Jan/Feb 2023

LEV3701

Law of Evidence

100 Marks
Duration: 4 Hours

First examiner: Prof BC Naudé

This paper consists of 7 pages.

INSTRUCTIONS FOR A TAKE-HOME EXAM ON MYEXAMS

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

EXAMINATION QUESTIONS.

1. The examination question paper counts 100 marks.

2. It consists of 8 (eight) questions. Answer ALL the questions.

3. The duration of the examination is 4 hours (08:00 – 12:00 on 13 February 2023). Your answers
must be submitted via the myExams platform on 13 February 2023 on or before 12h30 (South
African Standard Time). Scripts that are not submitted on the myExams platform will not be
marked.

4. This is an open-book examination. While the examination is in progress, you are not allowed to
consult another person or any source to assist you to answer any of the questions contained in
this question paper. While the examination is in progress, you may not assist, either directly or
indirectly, another student in answering any of the questions contained in this question paper. You
may also not seek answers, either directly or indirectly, from any other person, whether they are,
themselves involved in writing the same examinations.

5. This examination is proctored via The Invigilator app. See instruction and QR code on next page.

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6. SUBMISSION OF YOUR EXAMINATION ANSWER FILE

Your answer to this portfolio or take-home examination must be submitted online on the myExams
platform on Moodle. Scripts that are not submitted on the myExams platform will not be marked.

6.1 You are advised to preview your submission (answer script) to ensure legibility and that the
correct answer script file has been uploaded.

6.2 Once the official examination time per the examination timetable has expired, you are provided
30 minutes to submit your answer script. Submissions made after the submission period has
lapsed will be rejected per the examination regulations and will not be marked.

7. The cover page for your take-home exam must include your name, student number and the
module code.

8. It is preferred that your portfolio or take-home exam is typed. However, handwritten

submissions will also be accepted.

9. Whether your answers are typed or handwritten, your submission on the myExams platform
must be made in the form of one PDF document.

9.1 The exam answer file that you submit must not be password protected or uploaded as a “read
only” file.

9.2 Your examination answer file will not be marked if:

9.2.1 you send your examination answer file via email.

9.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
9.2.3 you submit your exam answer file on an unofficial examination platform (including the
invigilator cellphone application).
9.2.4 you submit your examination answer file in the incorrect file format.
9.2.5 you submit a password-protected document.
9.2.6 you submit your examination answer file late
9.2.7 you submit your answer file from a registered student account that is not your own.

9.3 Incorrect answer scripts and/or submissions made on unofficial examinations platforms
(including the invigilator cellphone application) will not be marked and no opportunity will be
granted for resubmission.

9.4 The mark awarded for an illegible examination answer file submission will be your final mark.
You will not be allowed to resubmit after the scheduled closing date and time of the exam.

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10. When answering the take-home exam questions, remember that an open-book exam is a test
at a higher level than the usual type of exam, where memory is tested as much as insight. In
an open-book exam, you need not memorise any information. You are expected to prove that
you can use information, rather than merely repeat it. In brief, what is being tested is factual
knowledge, understanding and the correct application thereof, not memory skills. For this
reason, you do not earn marks by merely detailing a list of all the information that you think
might be relevant to a particular question. This gives no indication that you know what statutory
or other provisions are applicable in a specific context. You are expected to identify precisely
what information applies, and then explain why you think so.

10.1 Also, because you have the guide available when answering questions, we do not give marks
for direct quotations from the guide. You are therefore assessed on your level of understanding
of the legal principles by looking at how well you applied the principles to the questions.

10.2 PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY
OTHER SOURCE).

11. The arguments that you make must be logical, well-structured, and substantiated by all relevant
legal principles. You are given 4 hours to complete the take-home exam. Use the time given
wisely.

11.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL
the relevant authorities, e.g. sections from relevant legislation and/or court cases.

11.2 Some students lose marks because they do not approach problem-type questions correctly.
When answering such questions, it is important to first clarify for yourself the area of work where
the answer must be sought. Once you have done this, set out the relevant legal principles. Deal
only with those principles that relate to the given facts. Next, apply these principles to the facts.
This is where most of the students lose marks - they set out the law in some detail, but then do
not illustrate how it applies to the factual situation they have been asked to solve. Finally, state
your conclusion.

12. You must complete the online declaration of own work when submitting.

12.1 By ticking the Honesty Declaration, you confirm that you have read (i) the University’s Policy
on Copyright Infringement and Plagiarism and the Student Disciplinary Code, which are both
available on myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to student
values and plagiarism that is found at https://www.unisa.ac.za/sites/myunisa/default/Study-@-
Unisa/Student-values-and-rules.

12.2 Students suspected of dishonest conduct during the examinations will be subjected to
disciplinary processes. Students may not communicate with other students, or request
assistance from other students during examinations. Plagiarism is a violation of academic
integrity, and students who do plagiarise or copy verbatim from published work will be in
violation of the Policy on Academic Integrity and the Student Disciplinary Code and may be
referred to disciplinary hearing. Unisa has a zero tolerance for plagiarism and/or any other
forms of academic dishonesty.

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12.3 Unless a student is exempted because of disability or incarceration, students who have not
utilised invigilation or proctoring tools will be deemed to have transgressed Unisa’s examination
rules and will have their marks withheld.

PLEASE NOTE:

If you experience challenges with the Invigilator app, please WhatsApp the technical helpdesk on 073
505 8273. Do not contact the lecturers.

For all other exam-related challenges, you may contact the SCSC on 080 000 1870 or e-mail
Examenquiries@unisa.ac.za or refer to Get-Help for the list of additional contact numbers.

IMPORTANT NOTICE

All the questions in this paper are compulsory and must be completed on one
examination script.

Question 1

Has the general rule regarding the competence and compellability of a spouse changed
significantly from the common law position? Explain with reference to authority. [10]

Question 2

Assume that a murder has taken place and that a firearm is found in the possession of a
suspect. Explain the importance of real- and circumstantial evidence with reference to a
possible trial. [10]

Question 3

Explain the difference between, and the working of, the real onus of proof and the evidentiary
burden in criminal cases. [10]

Question 4

It often happens that evidence upon which the court must base its finding is suspect for some
reason. The evidential value of such evidence can then be raised with corroborative evidence.
Not any evidence can, however, be used for corroboration. Fully explain the last statement.
[10]

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Question 5

Is there a cautionary rule in respect of cases of a sexual nature? Briefly explain. [5]

Question 6

The accused, a doctor, is charged with two counts of indecent assault on two female patients
that allegedly took place while they were under hypnosis. The first count alleges that he
indecently assaulted a woman called “Mary” during a consultation on 12 August 2021. The
second count alleges that he indecently assaulted a woman called “Jane” on 20 September
2021. For reasons unrelated to the alleged indecent assault, Mary committed suicide before
the start of the trial. Several months before her death she had, however, made a statement to
the police about the alleged assault. She had also told two friends, Ken and Alan, that the
accused had indecently assaulted her. The prosecution also obtains statements from three
other witnesses who allege that the accused had made improper suggestions to them while
under hypnosis. From the start of the investigation, the accused’s version is that both women
are lying about the events in question. Fully discuss, with reference to decided cases, the
admissibility of the following possible evidence:

6.1 The admissibility of the statements Mary made to Ken, Alan and to the police. (10)

6.2 The admissibility of evidence given by witnesses who tell the court that Jane also made
statements to them about the alleged indecent assaults. (10)
[20]
Question 7

A, B and C partake in a cash-in-transit-heist on the N1-highway and manage to get away. After
illegally monitoring A’s private conversations, the police raid his house. Upon entering his
house, the police inform A that, if he gives his co-operation, they will use him as a state witness
and that he will therefore not be prosecuted. A consequently makes a statement that implicates
him in the crime and that leads the police to some of the stolen money in the ceiling of A’s
house. Later the police also arrest B and C. They make statements to the police that implicate
each other and A in the robbery. Notwithstanding their previous undertaking not to have A
prosecuted, A is charged along with B and C with the crime of robbery.

7.1 During the trial A alleges that his statement and pointing-out to the police is inadmissible
evidence. Fully discuss whether you agree with A. (10)

7.2 Accept that A’s statement to the police is inadmissible evidence. Can the prosecutor in
this situation now submit evidence about the fact that some of the missing money was
found in A’s house? (5)
[15]

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Question 8

A well-known businessman, Mr Shakes, is arrested, and accused of committing massive fraud

and corruption relating to government tenders. It is alleged that he inter alia bribed a high-
ranking government official to obtain many of these tenders. While he is detained, the police
search his house and place of business and the offices of his attorney. Amongst other
incriminating documentation, they seize a fax that is important proof of the generally corrupt
relationship between Mr Shakes and the high-ranking government official. During his bail
application, Mr Shakes is faced with a hard choice: if he testifies to ensure his release on bail,
he will also give evidence that will incriminate him on the main charge.

8.1 Is evidence given by an accused during his bail application admissible against him in the
trial? Fully discuss. (10)

8.2 During the trial, Mr Shakes’ legal advisor objects to the admissibility of some of the
documents seized at his legal offices on the ground that they constitute privileged
information. Do you agree? Fully discuss. (10)
[20]

Total: [100]

Unisa 2022

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