NYARARAI GOMBA

68184743

TLI 4801

Assignment 2
Question 1

a)

The rules of etiquette in the relationships between defense attorneys, prosecutors, and
investigating officers in the context of criminal law are significantly important in order to
maintain the integrity of the legal system, ensure fair and just proceedings and
professionalism. These rules govern the professional conduct and interactions among
these parties. The conduct of attorneys is regulated by certain protocols. Defense
attorneys should maintain open lines of communication with prosecutors and
investigating officers while refraining from making misleading or false statements. They
should not engage in any inappropriate or unethical behavior that could compromise the
fairness of the legal process. It is crucial for defense attorneys to act in the best interest
of their clients while upholding the rules of professional conduct.

Confidentiality, the attorney-client privilege is a fundamental aspect of the legal system

that promotes open communication and trust between clients and their attorneys. It
allows clients to feel comfortable sharing sensitive information with their lawyer without
fear that it will be used against them in court. the attorneys are required to act in the
best interests of a client keep their client's information confidential in any matter and not
discuss such information amongst prosecutors or investigating officers without the
client's consent.

Professionalism, professional behavior, mutual respect, and inclusivity are essential

values that all parties should uphold during conferences or interactions with each other
to ensure a productive and positive experience for everyone involved. Conferences
between defense attorneys, prosecutors, and, if necessary, investigating officers must
be handled in a professional environment of the prosecutors' offices. This setting
highlights the formality and the seriousness of the discussions about the case at hand. It
also places the prosecutors within their working environment, thus reinforcing their role
and status in the proceedings.

Disclosure the duty of disclosure is significant in criminal cases, where the stakes are
high and the consequences of a wrongful conviction can be devastating. It is therefore
crucial for both prosecutors and defence attorneys to be transparent and forthcoming
with all relevant evidence to ensure a fair trial.

Communication and Cooperation, communicating in a professional and polite

manner is expected of defense lawyers, prosecutors, and investigative police. This
involves attending to inquiries quickly, disseminating pertinent data, and preventing
pointless delays. Cooperation is promoted and the criminal justice system is ensured to
run smoothly through effective communication. Treating the investigating officer with
courtesy upholds the professional respect expected among legal and law enforcement
professionals. The investigating officer must be treated with courtesy and respect for the
office he holds.

Impartiality: Investigating officers should conduct their investigations impartially,

without showing favor to the prosecution or the defence. They should collect evidence
objectively and present it truthfully. It is important for all parties involved to uphold these
rules of etiquette to maintain the integrity of the criminal justice system.

Advocacy, the role of a defence attorney is to ensure that their client is given the best
possible legal representation and a fair trial by ensuring that their clients' constitutional
rights are protected, including the right to remain silent, and the right to be legally
represented. When engaging in such discussions, defense attorneys must be careful to
ensure that the statements they make are genuinely geared towards exploring
settlement options and not inadvertently waiving any rights or inadvertently admitting
guilt on behalf of their clients. Once certain information is divulged, it may not be
forgotten or ignored. A misplaced statement may lead to a new line of investigation or
defense. It is therefore important for the attorney to choose their words wisely.

In Mr. Z's scenario, the absence of the investigating officer during the conference with
the prosecutor could be viewed as a departure from the rules of etiquette, particularly if
the officer had information that would be relevant to the discussions taking place.
Moreover, the defense attorney's misleading disclosures marked "without prejudice"
should be approached with caution since some statements cannot be protected under
this privilege and might later impact the integrity of the defense or negotiations.

b)

The legal practitioner must always advice the client to do the right thing. If the clients
accept responsibility we can either go to trial or we can follow the procedure in terms of
section 105 of the Criminal Procedure Act 51 of 1977(hereinafter CPA) which provides
for a sentence agreement that is entered into by the accused and the state.

A lawyer has a duty not to mislead the court. Advocates and attorneys may not mislead
the court, whether directly or indirectly, for example by making misrepresentations or
false statements. They may not mislead the court, whether directly or indirectly, for
example by making misrepresentations or false statements. Lawyers may not conceal
anything that the court requires for the administration of justice. Lucky Stanza should
consider the client's wishes and respect Mr Z’s decision, however, he must explain to
him the possible sentences she may face, including fines and imprisonment, and ensure
that she is aware of her legal rights and the potential risks involved. Lucky Stanza must
inform Mr. Z that, as his attorney, he cannot engage in or support any conduct that is
dishonest or that undermines the integrity of the judicial process. It is important for Mr. Z
to understand the potential consequences of allowing someone else to take
responsibility for the incident, especially if it involves misleading the court or providing
false information.

Lucky Stanza must emphasize the significance of honesty and integrity in the legal
process, and the potential repercussions of attempting to manipulate the truth in a
criminal case. He should also discuss the potential legal implications for both Mr. Z and
John S if false information is presented to the court. Lucky Stanza must advise his client
that they should explore alternative defense strategies and legal avenues that may be
available to him. This could involve conducting an in-depth review of the evidence,
identifying potential witnesses, and developing a comprehensive legal defense that is
grounded in truth and legal integrity. This may involve exploring alternatives to
imprisonment, such as fines, community service, or rehabilitation programs.

He must also make sure that any plea agreement reached is in her best interest and
meets her goals and needs. Ultimately, Lucky Stanza should act as a trusted advisor to
Mr Z and ensure that she is fully informed and comfortable with his decision.

c)

When drafting Mr. Z's plea explanation, Lucky Stanza, the defense attorney, plea
explanation should reveal the minimum information about the defense that is necessary
to disclose to the court and to explain the circumstances in which the defense arose.

There are several types of information that Lucky Stanza should avoid when preparing
Mr. Z's plea explanation to uphold the integrity of the legal process and protect his
client's legal rights. Stanza must avoid Providing a detailed version of the accused’s
version of events, he must not include argument in the plea explanation whether that
argument is one based on the facts or a description of the treatment the accused has
suffered at the hands of the police or the law and he must not address any factual
matter contradicting the version given by or on behalf of the accused during bail
proceedings or during questioning by the police; the accused may be cross-examined
later on any of the discrepancies.

Specific details that may hurt Mr Z’s case may include:

Stanza must ensure that all statements and arguments made in the plea explanation
are factual and truthful. Any false or misleading statements could harm the credibility of
the plea and could potentially result in further charges. It is also important for Lucky to
be respectful and professional throughout the explanation, as this will reflect well on
both himself and his client. Ultimately, the goal of the plea explanation should be to
secure the best possible outcome for Mr Z, while also upholding the integrity of the
legal process.
Irrelevant personal details: It is important for Lucky to remember that the purpose of a
plea explanation is to persuade the court to reduce or dismiss a charge against Mr Z
and including irrelevant personal details may distract the court and weaken the strength
of the defence.

Unsubstantiated claims: Satanza should refrain from making assumptions or claims

that cannot be supported by facts. The justification for the plea should be supported by
reliable and verifiable facts.

d)

The process regarding the assembling of evidence in a criminal trial includes both the
legal practitioner and the investigating officer.in the adversarial system the parities are
tasked with producing the evidence on which the court will make its findings of fact law.

Initial Investigation: The process of assembling evidence begins with the initial
investigation conducted by law enforcement authorities. Investigating officers are
responsible for gathering relevant evidence, conducting interviews, collecting physical
evidence, and documenting the details of the alleged offense. Once necessary
statements have been issued from witnesses steps to ensure their attendance must be
taken and these include issuing and serving a subpoena.

Arrest: After collecting sufficient evidence, law enforcement agencies can arrest the
suspect and take them to custody.

Charging: Once an arrest is made, the prosecutor reviews the evidence and decides
whether to charge the suspect.
Arraignment: A formal charge is brought before the court, and the accused appears in
court. They are read the charges against them and asked to plead guilty or not guilty.

Indications: A crucial step is to inspect the scene where the scene features in the case
and prepare demonstrative exhibits – plans, photographs, models – if that may help
witnesses to give their evidence. Precognise or help the witnesses concerned to
familiarize with the evidence so that they are not presented with these exhibits for the
first time when they are already in the witness box (and when you will not be allowed to
interview them until they have completed their evidence).

Pre-trial hearings: The prosecution and defence present their arguments to the court,
and the presiding judge makes rulings on the admissibility of evidence and other legal
matters. This process involves the preparation a provisional bundle of documents for
discussion with the other side with the aim of reaching agreement before the final
production of the documents.

Trial: The trial begins, and both sides present their evidence and arguments to the jury.
The judge presides over the trial and instructs the jury on the law.

Deliberation and verdict: The judge deliberates the evidence and reaches a verdict.

Sentencing: If the defendant is found guilty, the judge decides the punishment based
on the law.

Appeals: The defendant or the prosecution has the right to appeal against the verdict if
they are dissatisfied with the decision.
e)

In Pineiro 1992 (1) SACR 577 (Nm) the court held that in the exercise of its discretion to
grant or refuse bail, the court does in principle address only one all-embracing issue:
Will the interests of justice be prejudiced if the accused is granted bail? And in this
context it must be borne in mind that if an accused is refused bail in circumstances
where he will stand his trial, the interests of justice are also prejudiced. The accused is
presumed innocent until proven guilty and bail may only be refused after a proper
assessment of the facts. In R v. O'Neal (2006), the court held that the primary
consideration for bail is to ensure the accused's attendance at trial. The court should
also consider the protection of the public and the administration of justice.In R v. Hall
(2012), it was emphasized that bail conditions should be tailored to the individual
circumstances of the accused and should not be unduly restrictive.

Section 60(4) of the CPA provides that the refusal to grant bail and the detention of an
accused in custody shall be in the interests of justice where one or more of the following
grounds are established:

Endangerment 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; Mr Z, as a hypothetical case, would pose a potential danger to the public if
released on bail if she is being charged with a serious offense, such as a violent crime
or a crime involving a weapon. If Mr Z has a previous criminal record of similar offenses,
this would also increase the potential danger he poses.

•Flight Risk where there is the likelihood that the accused, if released on bail, will
attempt to evade his or her trial; Mr Z’s financial resources and ties to the community
are two critical factors that may impact his decision to flee the jurisdiction. He is a
successful business man and has significant financial resources, it may be easier for
him to flee and establish a new life elsewhere. On the other hand if he has strong ties to
the community, such as family, friends, or employment, she may be less likely to leave.
• Intimidation 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; The
likelihood that Mr Z will interfere with witnesses or tamper with evidence if released on
bail. The judicial officer would take this into consideration when deciding whether to
grant bail or not, it is important to ensure the safety and fairness of the legal process,
and preventing witness interference and evidence tampering is crucial in achieving this.

• Where there is the likelihood that the accused, if released on bail, will undermine or
jeopardize the objectives or the proper functioning of the criminal justice system,
including the bail system. Mr Z may use his financial prowess to undermine the justice
system by paying off judicial officers.

Previous compliance with court orders: Mr Z’s history of compliance with court orders,
including previous bail conditions or probationary periods. This can indicate his
willingness to abide by the conditions of release.

• Where in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security.

Community ties and support: Mr. Z’s ties to the community, include family, employment,
and community support. This can demonstrate his stability and willingness to comply
with bail conditions.

It has repeatedly been held that in assessing the risk of flight, courts may properly take
into account not only the strength of the case for the prosecution and the probability of a
conviction in Lulane 1976 (2) SA 204 (N) at 213C-F but also the seriousness of the
offence charged and the concomitant likelihood of a severe sentence according to
Nichas 1977 (1) SA 257 (C) at 263.

In Petersen 2008 (2) SACR 355 (C) a full bench noted that the existence of the
extradition arrangements between South Africa and Namibia provided no guarantee that
extradition would indeed take place if the appellant were to ‘relocate for the purpose of
evading justice’. This reality rendered meaningless the undertaking of the appellant’s
Namibian family that they would not have permitted her to become a fugitive from
justice.
 BIBLIOGRAPHY

Textbooks

Maharaj A, A confident Criminal Litigation (LexisNexis 2010).

Marnewick C.G, Litigation Skills for South African Lawyers (LexisNexis 2019).

Case law

Letaoana 1997 (11) BCLR 1581 (W)

Lulane 1976 (2) SA 204 (N) at 213C-F

Petersen 2008 (2) SACR 355 (C)

Legislation

Criminal Procedure Act 51 of 1977.

Constitution of the Republic of South Africa, 1996

Legal Practice Act 28 of 2014.

Road Accident Fund Act 56 of 1996

DECLARATION OF AUTHENTICITY AND ACCURACY

I, (NYARARAI GOMBA) Student number: 68184743

declare that I am the author of this examination in TLI4801. I further declare that the
entire examination is my own, original, correct work and that where I used other
information and resources, I did so in a responsible manner. I did not plagiarize 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: 22 April 2022…………………………………………………….

Place:…Kwekwe………………………………………………….

Signature: N.GOMBA……………………………………………….

(provide an electronic signature or type or write your name or surname again)