TLI4801/202/1/2024

Tutorial Letter 202/1/2024

Techniques in trial and litigation

TLI4801

SEMESTER 1

Department of Criminal and Procedural Law

IMPORTANT INFORMATION:
This tutorial letter contains important information
about the May/June 2024 examination for your
module.
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CONTENTS

1 INTRODUCTORY REMARKS

2 INSTRUCTIONS TO ANSWER THE MAY/JUNE 2024 EXAMINATION (NON-

VENUE- BASED EXAMINATION)

3 MAY/JUNE 2024 EXAMINATION (NON-VENUE BASED EXAMINATION)

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 MAY/JUNE 2024 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: 28 May 2024

Unique number: 790512

Submission period: 23 May– 28 May 2024

ATTENTION ALL STUDENTS:

The mymodules system will open for submission of your answers on 23 May 2024 at
08:00, and it will close on 28 of May 2024 at 23:00 (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.

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PLEASE NOTE: Tutorial Letter 202/1/2024 will only be available on mymodules

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
same may not be submitted with security restrictions under the “protect document”-
option due to the fact that the security restrictions interfere with the electronic marking
program used and also prevents 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 re-register for
this module 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 mymodules 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 mymodules 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.

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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. 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. MAY/JUNE 2024 EXAMINATION (NON-VENUE-BASED ASSESSMENT)

QUESTION PAPER

Due date for examination: 28 MAY 2024

Unique number: 790512

Submission period: 23 May – 28 May 2024

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PORTFOLIO EXAM: MAY/JUNE 2024

TECHNIQUES IN TRIAL AND LITIGATION (TLI4801)

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
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.

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THE QUESTION PAPER:

QUESTION 1: CIVIL PRACTICE [50]

1.1 Darren Smith is the director and shareholder of DSA Equipment (Pty) Ltd (“DSA”) and
the company manufactures medica electronic equipment. Mr. Smith approached EBA
(Pty) Ltd (“EBA”), the local supplier of the components needed for the manufacturing
of the electronic equipment by DSA, and the parties entered into a written agreement
for the supply and delivery of the components on 30-day credit terms. The goods are
delivered by EBA to DSA’s premises and a copy of the invoice to the value of R1,5
million is handed to Mr. Smith who was present to receive them. Despite numerous
calls followed by a formal letter of demand addressed to DSA for payment of the
outstanding amount following the expiry of the 30-day period, EBA does not receive
any formal response from DSA and/or Mr. Smith. EBA (Pty) Ltd now wants to institute
legal proceedings to recover the outstanding amount. EBA’s director approaches you
for legal advice or assistance regarding the proceedings that can be instituted for the
recovery of the outstanding amount from DSA.
Answer all the following questions, using proper references. Note: In your answers,
you are required to make up 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 court proceedings that must be used to institute EBA’s claim. (4)
(b) Assuming that DSA opposes EBA’s claim, discuss whether summary judgment may
be used in the above instance. (4)

(c) Assuming that there is no application for summary judgment, name and discuss the
pleading that must be drafted by EBA in response to DSA’s intention to defend the
matter. (4)

(d) Draft the pleading referred to in (c) above. It must include, inter alia, a heading, the
description of the parties, their locus standi (if applicable), the court’s jurisdiction,
material facts and the prayer. (20)

(e) The written agreement between EBA and DSA also provides for an alternative dispute
resolution mechanism that may be used to resolve disputes between the parties. EBA
now requests your advice about a suitable ADR (alternative dispute resolution)
mechanism that may be used to resolve the dispute with DSA expeditiously as
opposed to instituting court proceedings. Discuss briefly whether arbitration or
negotiation is the most suitable ADR mechanism having regard to the given facts and
advise EBA accordingly. (6)
(38)

1.2 Discuss the advantages of lawyers using digital resources instead of traditional
methods to undertake legal research. (6)

1.3 Critically discuss the role of the Legal Practice Council in regulating the professional
conduct of its members in practice. (6)
[50]

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QUESTION 2: CRIMINAL PRACTICE [50]

1. Your name is Audacious Funk Attorney. You are drafting a section 105 agreement for your
client, Fraudy Jack, who is arrested on a charge of theft.

Answer the following questions, using proper references. Note: In your answers, you are
required to make up 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 requirements for a charge in terms of the Criminal Procedure Act 51 of 1977
and draft the above charge. (8)

(b) What does section 105A of the Criminal Procedure Act 51 of 1977 address? Discuss. (5)

(c) Name the parties who form part of the section 105A process. (5)
(d) Briefly discuss the sentencing agreement in terms of section 105A of the Criminal
Procedure Act 51 of 1977. (5)
(23)

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

2. Distinguish between memoranda and minutes written by the prosecutor and those
written by legal practitioners. (6)
3. Critically discuss the procedure relating to the assembling of evidence in a criminal
trial. (6)

4. Brainy Account is a Chartered Accountant (CA) and a registered Auditor with MCK
Auditors. Brainy Account was recently arrested for having accepted kickbacks in the
form of bribes to the value of R4 million (R4 000 000) in the form of cash and other
benefits to falsify audit outcomes. The state also alleges that Brainy Account failed to
report criminal conduct by HRC Bank, and this enabled the bank to hide the losses it
has suffered in the amount of R650 million (R650 000 000) due to theft and fraud.

At a formal bail inquiry for the accused, the following information was produced in court:

• There are several investigations taking place at the same time involving other
accused with respect to the fraud and theft that has occurred in HRC bank, and it
will take at least two years for these investigations to be completed or finalised;

• The nature of the fraud is extensive – possibly amounting to more than R650
million (R650 000 000). There are currently efforts to have the funds recovered by
the Asset Forfeiture Unit (AFU) but there has not been any success yet in the
recovery process;

• The accused had already been subjected to an internal disciplinary inquiry by both
his employer, MCK Auditors, and the regulatory body for Accountants. He has
already been dismissed by his employer, and he has been suspended for a period
of fifteen years from practising as an Auditor or using the designation of CA by the
Accounting regulatory body. The above actions occurred 6 months prior to his
arrest;

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• The accused was also involved in divorce proceedings recently and this has
resulted in his wife being awarded full custody of their minor children as well as
their common home. The accused has since been staying with his mistress who
decided to throw him out following the dismissal by his employer. He now stays
intermittently with various friends. He recently visited his parents in Windhoek,
Namibia for three weeks prior to his arrest, and it appeared during the bail hearing
that he usually uses his Namibian passport to travel outside the country despite
also having a South African passport;

• The accused claims that he presently has no financial resources, although he owns
shares in a company that owns a professional football team. The remaining
shareholders have offered to purchase the accused’s shares. However, it is not
known what the value of the shares is or how long it will take for the transaction to
be completed for him to have access to cash resources or whether the cash or the
shares themselves will also be subject to forfeiture by the AFU.

Having regard to the above facts, advise the presiding judicial officer as to the relevant
factors that he should consider when considering the accused’s request for release
on bail and, if so, the conditions attached thereto. Also refer to relevant case law in
your answer. (15)
[50]

TOTAL: [100]

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)

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5. CONCLUDING REMARKS

Your results will be released by the Department of Examination Administration (DEA) during
the May/June 2024 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

Mr. B K Mashabane
Prof. J Le Roux-Bouwer
Unisa/kr