Question 1
What must the court in a civil case do if a legal question about the cross-examination of a witness arises and there is no express provision in any South African legislation on the specific issue? Fully explain with reference to a definition. [5]
Question 2
Lucky is on trial for the m...
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, Question 1
What must the court in a civil case do if a legal question about the cross-
examination of a witness arises and there is no express provision in any South
African legislation on the specific issue? Fully explain with reference to a
definition. [5]
A residuary clause determines that foreign law has to be followed on topics for which no
express local statutory provision had been made (Indirect incorporation). These are those
sections in South African statutes which incorporate foreign law into South African law and
thereby preserve that part of foreign law. The general rule in a Civil Matter is that the
evidence is usually inadmissible – this rule is based on the relevancy principle. Generally:
only evidence of general reputation is relevant for the purposes of the law of evidence.
Question 2
Lucky is on trial for the murder of his wife. The prosecution claims that Lucky
committed the murder by poisoning his wife with arsenic. Lucky’s defence is that
his wife committed suicide. Innocent, an attorney, is called by the prosecution to
testify that the accused approached him in his professional capacity for legal
advice and, during their discussions, admitted to having killed his wife. Innocent
subsequently declined to represent Lucky. The prosecution states that this
evidence will be admissible because Lucky had told Innocent of a crime that had
already been completed. Do you agree? Fully discuss with reference to the
requirements for the admissibility of this type of evidence. [10]
I do not agree as the evidence will be inadmissible because the communication was
privileged.
Before legal professional privilege will apply, the following requirements must be met:
1. The legal adviser must act in a professional capacity
This is a question of fact and a strong indication would be the payment of a fee, although the
absence of such would not necessarily be conclusive evidence of the opposite. The grounds
for following the approach of the English courts were set out in Mohamed v President of the
Republic of South Africa 2001 2 SA 1145 (C) in that salaried legal advisers (e.g. those
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