Exam (elaborations)
LEV3701 EXAM PACK 2023
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- University Of South Africa (Unisa)
LEV3701 EXAM PACK 2023
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LEV3701 EXAMPACK 2023
QUESTIONS
AND ANSWERS
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LEV3701 EXAM NOV 2015
SECTION 2
2.1 Briefly explain the content of the first leg of the test for the exclusion of
unconstitutionally obtained evidence (5)
The first leg is entrenched in section 35(5) of the Constitution, specifically refers to
the fairness of a trial as a criterion in the test for the exclusion of unconstitutionally
obtained evidence. In this regard the court must consider factors such as
1. Privilege against self-incrimination: in S35 (3) - includes right to remain silent,
be presumed innocent and not testify.
2. Real evidence emanating from the suspect: unconstitutionally obtained bodily
samples, does not affect the privilege against self-incrimination since it not only
pre-existed the Bill of Rights violation but also existed irrespective of the violation
but the blood sample taken from the suspect in violation of his constitutional right
could be excluded as evidence based on the right to a fair trial.
3. Fairness of a trial and derivative evidence: Although unconstitutionally
obtained testimonial communication would be inadmissible, it is submitted that
this should not lead to the automatic exclusion of the derivative real evidence
such as the knife which, quite independently of the inadmissible communication,
connects the accused to the crime. Such evidence should not therefore be
treated as self-incriminatory. The court must view this evidence separately and
exercise its discretion in terms of section 35(5).
2.2 List five examples of instances where a court may allow for the evidence of
a lay person. (5)
the approximate age of a person.
the state of sobriety of a person.
the general condition of something.
the approximate speed at which a vehicle was travelling.
a summary of factual data as perceived by him, for example, a witness may be
permitted to say that the complainant was “angry”.
the identity of handwriting.
2.3 List the requirements for the admissibility of an otherwise inadmissible
confession.
The requirements for the admission of an otherwise inadmissible confession are:
Evidence is adduced by the accused,
which, in the opinion of the judicial officer, is favourable to the accused,
of a statement made by him,
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as part of, or
in connection with, such an inadmissible confession.
2.4 Briefly explain the main principles relating to the police docket privilege
which are evident from Shabalala and others v Attorney-General of the
Transvaal 1996 (1) SA 725 (CC). (5)
The main limitation to police docket privilege is the constitutional right of an accused
to a fair trial, as framed in section 25(3) of the interim Constitution – section 35(3) of
the final Constitution. The police docket privilege which applied in terms of R v Steyn
1954 (1) SA 324 (A) cannot be reconciled with this. Normally, this right would ensure
access by the accused to exculpatory documents (documents which tend to show
that the accused is not guilty) in the docket, as well as to witness’s statements which
he may need in order to exercise his right to a fair trial. The State may oppose such
requests on the ground that such access is unnecessary in order to exercise that
right; that it may lead to the identification of a police informant; that it may lead to
intimidation of witnesses or in some other fashion subvert the ends of justice. The
court has to exercise a judicial discretion in determining whether access should be
allowed.
SECTION 3
3.1 Write a note on the requirements for the operation of legal professional
privilege between a client and his legal advisor. (10)
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.
2. The communication must be made in confidence. This is a question of fact and
such confidentiality will be assumed if the legal adviser was consulted in a
professional capacity for the purpose of obtaining legal advice.
3. The communication must be aimed at obtaining legal advice. This is a
question of fact and communications made in privilege, but not with the intent of
obtaining legal advice, will not be protected by professional privilege.
4. Legal professional privilege will not be upheld if legal advice is obtained for the
purposes of furthering criminal activities.
5. The client must claim the privilege. Such privilege attaches to the client and, if
he doesn’t claim it, the court will not uphold it. A legal representative will be bound
by a client’s waiver of such privilege.
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