Class notes
LEV3701 EXAM PACK 2021
- Institution
- University Of South Africa (Unisa)
LEV3701 EXAM PACK 2021 covers oct/nov and may/june exam papers.
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Page 0 of 45LEV3701 EXAM PACK
JOSEPH
0784683517
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CONTENTS
OCT/NOV 2020 ANSWERS
MAY/JUNE 2019 ANSWERS
MAY/JUNE 2018 ANSWERS
OCT/NOV 2018 ANSWERS
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OCT/NOV 2020
Question 1
No, evidence compasses oral statements made in court under oath or affirmation or
warning (oral evidence) as well as documents (documentary evidence) and objects (real
evidence) produced and received in court.
Question 2
The question is based on a residuary section such as section 206 of the Criminal
Procedure Act provides: The law as to the competency, compellability, or privilege of
witnesses which was in force in respect of criminal proceedings on the thirtieth day of
May 1961, shall apply in any case not expressly provided for by this Act or any other law.
Residuary sections defined as a section in a South African statute which incorporates a
part of foreign law into our law, and thereby preserves something of the foreign law. There
is direct incorporation” of foreign law by, for instance, South African statutes using the
exact wording of foreign legislation, and “indirect incorporation” as in the case of residuary
clauses, which simply determine that foreign law has to be followed in respect of topics
for which no express local statutory law has been made.
In criminal cases the burden of proof is beyond a reasonable doubt which is on the state
during the whole trial as this onus of proof has already been fixed at the beginning of the
trial. It does not shift during the trial and it really only becomes important at the end of the
trial. It is also called the “risk of non-persuasion”, which implies that the court still has
some doubt about the true facts at the end of the trial. Its finding will go against the party
who bore the onus to persuade the court, but who failed to do so. This differs from the
evidentiary burden which may shift during the various phases of the trial. At the start, one
of the parties might bear it in the form of a “duty to adduce evidence”. This again places
a “duty to rebut” on the second party. This burden is important at the halfway stage, when
the first party has already closed its case and the second party argues that, owing to the
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failure of the first party to satisfy its evidentiary burden, no “duty to rebut” has actually
passed to the second party.
The burden of proof and the evidentiary burden in civil proceedings
In civil cases the basic rule as far as onus of proof is concerned is that he who alleges
must prove. This rule is derived from the decision in Pillay v Krishna. This decision
illustrates the fact that the true onus of proof is usually established by the pleadings.
Zeffertt et al distinguish between the “true” onus of proof and the so-called “evidentiary
burden”. According to them, the evidentiary burden encompass the duty cast upon a
litigant to begin adducing evidence and the duty to adduce evidence to combat a prima
facie case made by an opponent. It is based on the rationale that if there is still any doubt
at the end of a case, the decision will go against the person who bears the onus (plaintiff,
one who alleges). When legislation is involved, the actual wording of the statute might
give an indication of who should bear the onus. In civil cases different issues may
generate different onuses of proof. The general rule is that the true onus of proof never
shifts from the one party to the other. However,
Onus shifts in the sense that in civil cases there is the possibility that in one case different
parties may bear the onus of proof regarding different issues, one may get the impression
that the onus does indeed shift from the one party to the other. In Pillay v Krishna 1946
AD 946 it was explained that where there are several and distinct issues, for instance, a
claim and a special defence, then there are several and distinct burdens of proof, which
have nothing to do with each other, save of course that the second will not arise until the
first has been discharged.
Onus do not shift. In Klaasen v Benjamin it was held that the real onus never shifts. In
some cases the impression of shifting may be derived from the fact that there are different
issues in the pleadings. This problem may be compared with a situation where the
defendant admits the basic facts as pleaded by the complainant, but claims the existence
of an exceptional fact, such as a ground of justification, and the complainant alleges, in
turn, that the ground of justification has been exceeded. In such cases it may appear that
the burden of proof shifts from one party to another. But that is not so. The incidence of
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