LEVD 3705

TEST PREP 3
1st SEMESTER TEST:

13 MAY 2023
16:30

If you are online, please type out any question you may
have about the test
MY CONSULTATION HOURS
TODAY:

12PM TO 2PM
 SCOPE OF TEST

UNIT 1: Study all chapters, except Ch 3 & 4

UNIT 2: Study
UNIT 3: Study all chapter, except Ch 21
Unit 4: Study all chapters done during semester
(Ch 6 to 9 – You can leave private privilege)

Including cases!

FeedbackFruits!
 TEST rules
o No telegram style answers!
o NOT open book
o 1 hour, 40 marks
o Do NOT be late at the venue

o Missing the test…not an option…

 APPLYING LAW IN TESTS
WHAT AM I BUSY WITH?

APPLY LAW /
PRINCIPLES TO

LAW /
FACTS FINDING
PRINCIPLES The facts The /
ANSWER
facts The facts
APPLICABLE The facts The
facts The facts
The facts The
facts The facts
The facts The
facts The facts
 THE WITNESS TESTIFIES… IS THE
EVIDENCE ADMISSIBLE
WHAT AM I BUSY WITH?

APPLY LAW /
PRINCIPLES TO

LAW /
FACTS FINDING
PRINCIPLES The facts The /
ANSWER
facts The facts
APPLICABLE The facts The
Relevance
facts The facts
No exclusion The facts The
facts The facts
Oath The facts The
facts The facts
 UNIT 1: CHAPTER 1
INTRO

o NO QUESTIONS ON…
o Wrongful convictions
o History of law of evidence
 UNIT 1: CHAPTER 2
CONCEPTS & DEFINITIONS

o NB!

o OTHER TERMS…

o Acquittal → Verdict / finding of ‘not guilty’

o Conviction → Verdict of ‘guilty’
o Objection → Action of noting with court disapproval
of opponent’s procedural step
 UNIT 1: CHAPTER 31
BoP in CRIM TRIALS

TERMS…

UNIT 1: CHAPTER 32
BoP in CIVIL TRIALS
 UNIT 2: CHAPTER 5
ADMISSIBILITY

NB!

UNIT 3: CHAPTERS 18, 19, 20

ORAL, REAL & DOCUMENTARY EVIDENCE

UNIT 4: CHAPTERS 6, 7, 8, 9
CHARACTER EVIDENCE
SIMILAR FACT EVIDENCE
OPINION EVIDENCE
PCS
 Possible assessment question:

IF FINDINGS ON RELEVANCE & ADMISSIBILITY IS

INTERLOCUTORY (PROVISIONAL) AND
REVERSIBLE LATER IN THE TRIAL, IS IT NOT
MORE IN LINE WITH THE CONCEPT OF LEGAL
CERTAINTY TO WAIT UNTIL ALL EVIDENCE HAS
BEEN ADDUCED BY BOTH PARTIES BEFORE
PRONOUNCING ON ITS RELEVANCE AND
ADMISSIBILITY?
 Possible assessment question:

IF FINDINGS ON RELEVANCE & ADMISSIBILITY IS INTERLOCUTORY (PROVISIONAL)

AND REVERSIBLE LATER IN THE TRIAL, IS IT NOT MORE IN LINE WITH THE CONCEPT
OF LEGAL CERTAINTY TO WAIT UNTIL ALL EVIDENCE HAS BEEN ADDUCED BY BOTH
PARTIES BEFORE PRONOUNCING ON ITS RELEVANCE AND ADMISSIBILITY?

ADMISSIBILITY

LAW / APPLY LAW /

FINDING /
PRINCIPLES PRINCIPLES TO
FACTS ANSWER
APPLICABLE
Yes, courts
S v Van der Walt
should wait…

No, courts should

not wait…
IF A PROSECUTOR ESTABLISHED A
PRIMA FACIE CASE AGAINST AN
ACCUSED AND THE ACCUSED
ELECTS TO EXERCISE HIS RIGHT TO
REMAIN SILENT, CAN THE ACCUSED
THEN REMAIN QUIET THROUGHOUT
THE TRIAL? WHAT EFFECT WILL
REMAINING SILENT HAVE ON THE
PROSECUTION’S STANDARD OF
PROOF?
IF A PROSECUTOR ESTABLISHED A PRIMA FACIE CASE AGAINST AN ACCUSED AND
THE ACCUSED ELECTS TO EXERCISE HIS RIGHT TO REMAIN SILENT, CAN THE
ACCUSED THEN REMAIN QUIET THROUGHOUT THE TRIAL? WHAT EFFECT WILL
REMAINING SILENT HAVE ON THE PROSECUTION’S STANDARD OF PROOF?

Sec 35(3) CON

BoP & ev burden Standard of proof

Say nothing → risks - No probabilities
conviction - Accused’s version?

Duty to put defence?

 AN EYEWITNESS TESTIFIES IN A
TRIAL.
DURING HER TESTIMONY, THE
WITNESS CONSTANTLY LOOKS DOWN,
CHANGES HER STORY 3 TIMES, AND
BECOMES INCREASINGLY MORE
HOSTILE TOWARDS THE EXAMINERS.

WILL THE COURT EXCLUDE HER

EVIDENCE AS INADMISSIBLE?
Your client is accused of a crime, and
when it comes time for your client to
testify in the case for the defence, your
client informs you that she prepared a
written document to read to the court,
which includes the full description of the
accused’s version of events.

Will the court allow your client to read

the document into the record without
testifying?
The prosecutor in a criminal case adduces
prima facie evidence during the state’s
case, establishing a convincing case
against the accused.

Is it still necessary for the

prosecutor to cross-examine the
accused if the accused elects to
testify in the presentation of the
defence case?
 AS DEFENCE COUNSEL, YOU CROSS-
EXAMINE A STATE WITNESS. BEFORE
THE CROSS-EXAMINATION COULD BE
PROPERLY CONCLUDED, THE WITNESS
DIES FROM A HEART ATTACK.

WILL THIS AFFECT YOUR CLOSING

ARGUMENTS IN THE CASE ABOUT THE
PROBATIVE VALUE OF THE WITNESS’S
TESTIMONY?
Doctor Ndlovu is charged with violation of abortion
law with respect to X (his girlfriend at the time), by
using certain medical instruments.

His defence: Doctor had examined X, performed

medical procedure unrelated to abortion & abortion
then occurred accidentally; no intent.

State: Wants to lead SFE that Doctor had

previously performed illegal abortions on Y and Z
(his girlfriends at the time) by using medical
processes.

Admissible?
You are the judge in a murder trial in which the accused is
charged with the fatal strangulation of his wife.

The state adduces the expert opinion evidence of a forensic

pathologist who testifies that the marks on the victim’s
neck is consistent with death by strangulation.

The defence calls a private forensic pathologist who

testifies that the marks on the victim’s neck was caused by
post-mortem changes & that the inside of her trachea
showed signs of oedema & scarring from choking, and
concludes that her death was accidental.

As the judge in the matter, how do you deal with

circumstances like this, where two credible expert
witnesses provide you with conflicting expert opinion?
Tessa Ndlovu identifies Cassius from an
identification parade as the man who robbed her
in Sebokeng. Her identification was immediate
and convincing.

Later, in court, she again identifies Cassius (the

accused) as her robber.

Will the court consider this identification as proof

of identity?
The complainant in a criminal case points to the
accused in court and explains that he was the
person who attacked her. No identity parade or
photographic identification was done, despite the
complainant and the accused being strangers.

Will the complainant’s identification in court carry

much weight?