lev3701
Assignment
Solutions
2017-2022
Lecture Feedback
Questions & Answers
,lev3701
Assignment
Solutions
2017-2022
Lecture Feedback
Questions & Answers
,LEV3701: First Semester, Assignment 01
Do not delay in completing this assignment. The onus to ensure that it is submitted
on time rests on you. This assignment consists of a problem-type question.
Consult the booklet Study @ Unisa regarding requirements for submitting the
assignment. Substantiate your answers and refer to decided cases where relevant.
In determining the length of your answers, you should be guided by the marks
allocated to each subdivision.
Problem-type questions should always be answered with the following guidelines
in mind:
■ Identify and state the central issue of a question. This should be done with reference
to the facts of the question and a definition. Always consider that more than one
issue could be involved.
■ Always give a definition of the particular concept or type of evidence you have
identified.
■ State the general rule regarding admissibility or the type of evidence and mention
all the exceptions.
■ Discuss the relevant exception or give a general discussion of the law applicable to
the specific issue involved. The marks allocated to a specific question will be the
best indication of the amount of information you should give. Never forget to discuss
cases and legislation.
■ Give a motivated conclusion with reference to the facts of the question.
Mr Greedy Baloyi is the president of Africa Holdings, a company listed on the Stock
Exchange. Mr Sure McDonald is his vice-president. They are charged with fraud
amounting to R10 million in respect of the company’s funds, relating to insider trading of
the company’s shares, as well as incorrect accounting practices relating to the non-
payment of tax in respect of the company. The company’s accountant, Mr Numbers
Mabema, is charged as an accomplice.
1.1 Both accused have talked to their wives on numerous occasions regarding their
insider trading and tax evasion activities in respect of the company shares and funds
respectively. Discuss the competence and compellability of their wives as witnesses
for the prosecution and for the defence. (10)
1.2 Discuss the competence and compellability of either Mr Baloyi or Mr McDonald as
a witness for the prosecution and defence. (6)
1.3 The prosecution convinces Mr Mabema to become a state witness. Explain fully how
the court should approach his evidence. (8)
1.4 The shareholders of African Holdings wish to sue Mr Baloyi and Mr McDonald for
damages in respect of their actions and wish to develop a solid case against them.
They do not want to risk critical documents being destroyed before the civil trial and
they do not want to be surprised in court with documents that they have not seen
before. Explain the procedure whereby it is determined which documents will be
relevant for proposed litigation. (6)
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, LEV3701/201/1/2022
CONTENTS
1. FEEDBACK ON ASSIGNMENT 01/2022
2. FEEDBACK ON ASSIGNMENT 02/2022
3. PREPARATION FOR THE EXAMINATION
4. BEST WISHES
Dear Student
Please note that this tutorial letter contains feedback on the assignments for the first
semester. It also contains important information about the examination in May/June 2022.
1. FEEDBACK ON ASSIGNMENT 01/2022
Question 1.1
This question required a full discussion of sections 195 and 196 of the Criminal Procedure
Act 51 of 1977 – see Learning Unit 5 in the study guide. Note that section 195 of the
Criminal Procedure Act 51 of 1977 has to some extent been amended by section 68 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. In terms
of section 196 of the CPA, the spouse of an accused is a competent as well as
compellable witness in defence of that accused. However, if the accused is jointly charged
with someone else, the spouse of such accused will be competent to give evidence on
behalf of that co-accused but cannot be compelled to do so.
It was also necessary to fully discuss marital privilege with reference to the facts of the
question. Marital privilege entitles a spouse to refuse to disclose communications from the
other spouse made during the marriage – see Learning Unit 15 in the study guide. Please
note that this question required a discussion with reference to both the prosecution and the
defence.
Question 1.2
Please note that this question required a discussion with reference to both the prosecution
and the defence – see Learning Unit 5 in the study guide.
Witness for the prosecution
A co-accused is not a competent witness for the state, whether to prove the case against
himself or against the accused, because he is also an accused. There may, however, be
circumstances where the state may call someone, who had previously been a co-accused,
to testify. This happens when this person is no longer a co-accused in that case. It can
happen in one of the following four ways:
• By withdrawing the charge against the co-accused.
• By finding the co-accused not guilty.
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, LEV3701/201/1/2022
• By the co-accused entering a plea of guilty.
• If the trials of the accused and his co-accused are separated for some other valid
reason.
Note that section 157(2) of the Criminal Procedure Act 51 of 1977 provides that at any
point during a trial, the court may order a separation of trials so that the one accused is no
longer a co-accused in the trial of the other. Upon such a separation, the co-accused may
then give evidence against one another, but it is advisable that the accused which the
state intends calling on to give evidence should first be sentenced.
Witness for the defence
One co-accused may testify in defence of another co-accused and vice versa. One co-
accused may, however, not compel another co-accused to testify in his defence, since the
other co-accused is also an accused.
Question 1.3
This question required a discussion of the cautionary rule in respect of accomplices – see
Learning unit 18 in the study guide. It was necessary to refer to the principles pointed out
by the court in S v Masuku 1969 (2) SA 375 (N).
Question 1.4
It was necessary to discuss the process of discovery, inspection and production of
documents – see Learning Unit 7 in the study guide. Discovery, inspection, and production
of documents are all relevant stages in possible civil litigation. “Discovery” simply means
that it may be expected (in terms of Supreme Court Rule 35 and Magistrates’ Court Rule
23) from one of the litigants to discover all possibly relevant documents in his or her
possession, in the sense of making them available to the opposing party. This is done by
means of an affidavit listing all possibly relevant documents in the possession of the
declarant party or his or her lawyer, except for those which they may lawfully refuse to
discover, or which are no longer in their possession. If a party fails to discover possibly
relevant documents such documents may not be used in subsequent litigation without the
express permission of the court. Once the discovery affidavit has been analysed by the
opposing side, the rules also provide for the inspection of selected documents by such
opposing party, although this may be complicated if the documents are voluminous or in
electronic format. The same technical constraints may also apply to the production of
aforesaid electronic documents by the declarant party to the opposing party. If a relevant
document is in the hands of a third party (not involved in the litigation) such party may be
ordered to come to court and bring the document with. This happens in terms of a
subpoena duces tecum (literally “a summons to bring it with\you”) from the court.
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