TLI4801/202/2/2023

Tutorial Letter 202/2/2023

Techniques in trial and litigation

TLI4801

SEMESTER 2

Department of Criminal and Procedural Law

IMPORTANT INFORMATION:
This tutorial letter contains important information
about the October 2023 examination for your
module.
 TLI4801/202/2/2023

CONTENTS

1 INTRODUCTORY REMARKS

2 INSTRUCTIONS TO ANSWER THE OCT/NOV 2023 EXAMINATION (NON-

VENUE BASED EXAMINATION)

3 OCTOBER 2023 EXAMINATION QUESTION PAPER

4 DECLARATION OF AUTHENTICITY AND ACCURACY

5 CONCLUDING REMARKS

1. INTRODUCTORY REMARKS

This Tutorial letter contains the examination which represents the final summation
assessment (non-venue-based assessment) in respect of this module. Therefore, do not
contact any of the lecturers for guidelines regarding the completion of this assessment.

2. INSTRUCTIONS TO ANSWER THE OCTOBER 2023 EXAMINATION (NON-

VENUE BASED EXAMINATION)

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY

BEFORE ANSWERING THE OCT/NOV 2022 EXAMINATION
QUESTIONS.

Due date for examination: 18 October 2023

Unique number: 705316

Submission period: 12 October 2023 - 18 October 2023

1. The examination question paper counts 100 marks and comprises 8 pages. It consists of TWO (2)
questions, namely Question 1 on Civil Practice and Question 2 on Criminal Practice. Both
questions are compulsory. Answer ALL the questions.

2. The duration of the examination is 96 hours. The mymodules on the myUnisa system will open for
submission of your answers on 12th October 2023 at 08:00, and it will close on 16th October
2023 at 23:00. You may submit your portfolio assessment answers at any time between these times,
and you may only submit during this period. At the expiry of this period, the system will close and
you will no longer be able to submit your answers. NO LATE OR EMAILED SUBMISSIONS WILL
BE ACCEPTED since this assessment counts as your examination for this module.

You are advised to submit your examination answers as soon as possible. NO EXTENSION FOR
LATE SUBMISSION WILL BE GRANTED. STUDENTS WHO FAIL TO SUBMIT THEIR
EXAMINATION ANSWERS BY THE DUE DATE, SHOULD APPLY FOR AN AEGROTAT
EXAMINATION.

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3. The cover page to your exam portfolio must include your name, student number, the module code and the
declaration of authenticity and accuracy. Ensure you keep a copy of the portfolio that you submit AND
keep evidence of your submission on mymodules on the myUnisa platform. Also, FOLLOW ALL THE
STEPS REQUIRED FOR SUBMISSION. If you fail to do so, the system will show that you did not submit
the portfolio assignment, and your examination result will read “absent from examination”.

All queries regarding problems with myUnisa must be addressed to the Assignment
Department or the ICT Department and not to the lecturers. We cannot provide any technical
assistance and do not have access to the system.

4. It is preferred that your exam portfolio is typed, however, handwritten submissions will also be
accepted. If the portfolio exam is typed, the maximum length is 25 pages (which includes the cover
page and the bibliography). If the portfolio exam is handwritten, the maximum length is 30 pages
(which includes the cover page and the bibliography).

5. Whether your answers are typed or handwritten, your submission on mymodules on the myUnisa platform
must be made in the form of one PDF document. You must submit your examination answers as a single
document in PDF-format and may not be submitted with security restrictions under the “protect
document”-option. Security restrictions interfere with the electronic marking programme used and prevent
the electronic marking of assignments. Portfolios e-mailed to lecturers WILL NOT BE ACCEPTED as
assignments must be registered and processed on the system by the Assignment Department. If you
submit your portfolio in an incorrect format, or if you submit the portfolio with security restrictions under the
“protect document”-option, the portfolio will simply be cancelled and you could fail this assessment (which
will result in you having to register for this module again next semester). As you may only submit one
document, you must ensure that everything you want us to assess is included in the ONE document that
you submit. No additional files will be accepted either on myUnisa or via e-mail. This includes the
declaration of authenticity and accuracy! A second submission automatically replaces the first
submission on the system, and a submission comprising only a declaration of authenticity and
accuracy will thus result in a zero-mark.

6. If your answers are typed, ensure that the following requirements are adhered to. Items 6.1-6.7
applies to written assignments as well.

6.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph, and double
line spacing after the paragraph.

6.2 The text must be justified.

6.3 All of the pages must be numbered in the bottom right hand corner of the page.

6.4 All margins must be 2.5cm, but the left margin must be 3cm.

6.5. South African English and not American English should be used. For example, the correct spelling is
“Labour” and not “Labor”.

6.6 Also do not use abbreviations or SMS language.

6.7 All quotes that are two lines long (or less), must form part of the main text, be written in italics, and
be bracketed by quotation marks. Where a quotation is longer than two lines, it must be typed in a
separate paragraph in italics in size 11 font and must be indented by 1 cm. No quotation marks are
required when the quotations stand alone. Use quotations very sparingly. In this exam portfolio, a
maximum of 5% of the text may be quoted.

7. When answering the exam portfolio questions, remember that it is an open-book exam which is a test at a
higher level than the usual type of exam, where memory is tested as much as insight. In an open-book
exam, you need not memorise any information. You are expected to prove that you can use information,
rather than merely repeat it. In brief, what is being tested is factual knowledge, understanding and the
correct application thereof, not memory skills. For this reason, you do not earn marks by merely detailing
a list of all the information that you think might be relevant to a question. This gives no indication that you
know what statutory or other provisions are applicable in a specific context. You are expected to identify
precisely what information applies, and then explain why you think so. Also, because you have the
prescribed material available when answering questions, we do

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not give marks for direct quotations from the prescribed material. You are therefore assessed on
your level of understanding of the legal principles by looking at how well you applied the principles to
the questions. PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE PRESCRIBED
SOURCES (OR ANY OTHER SOURCE).

8. The arguments that you make must be logical, well-structured and substantiated by all of the
relevant legal principles. You are given 4 days or 96 hours to complete the portfolio exam. Use the
time given wisely.

8.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL of the
relevant authorities, e.g. sections from relevant legislation and/or court cases in the text or in your
footnotes. Your answers must contain complete references to sections in legislation, principles and
relevant case law. Students will be penalised for incomplete or incorrect references. Number your
answers correctly and write your answers in your own words. Students will lose marks if their
answers indicate copying, plagiarism or collaboration with other parties. Student scripts may
also be investigated for possible disciplinary proceedings in these circumstances.

8.2 You are required to have read and summarised the prescribed material or sources yourself. When
using case law to support your answer, please include complete references to the relevant cases in
your footnotes. This means that you must not only include the name of the case but also the exact
page and section and/or paragraph where the information can be found. The same applies to articles
and books used.

8.3 A number of students lose marks because they do not approach problem-type questions correctly.
When answering such questions, it is important to first clarify for yourself the area of work where the
answer must be sought. Once you have done this, set out the relevant legal principles. Deal only
with those principles that relate to the given facts. Next, apply these principles to the facts. This is
where most of the students lose marks - they set out the law in some detail, but then do not illustrate
how it applies to the factual situation they have been asked to solve. Finally, state your conclusion.

9 Please ensure that you complete and sign the DECLARATION OF AUTHENTICITY AND
ACCURACY at the end of this tutorial letter and attach the signed declaration to your examination
answers. You may retype the declaration, or you may attach the signed declaration to your answers
in any other manner. EXAMINATION ANSWERS WITHOUT SIGNED DECLARATIONS WILL NOT
BE MARKED.

10. Please ensure that you submit the correct assignment/assessment – a wrong
assignment/assessment will result in the cancellation of your assignment. If the correct assignment
is not resubmitted before the due date, a zero-mark will be awarded.

PLEASE NOTE:
If you experience technical problems of any kind on the day of the examination and your examination
answers are not submitted by the cut-off time, you will be marked as absent.

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3. OCTOBER 2023 EXAMINATION QUESTION PAPER

QUESTION 1: CIVIL PRACTICE

1. On the morning of 2 July 2023, a cyclist, Mr John Barnes who is a member of a local
bicycle club, “Easy Riders”, is riding on a public road in Lynnwood, Pretoria. Suddenly he
is struck from behind by a speeding taxi with registration number BN264GP driven by
Joe Speedy. The accident occurs on Lynnwood Road, Pretoria. Mr Barnes is injured as a
result of the accident and his bicycle is damaged. Mr Barnes sustains the following
injuries: a broken right leg, a broken pelvis, a deep cut below his right eye resulting in
permanent facial scarring, bruises and abrasions to the right-hand side of his body. His
doctors advise him that he will not be able to resume cycling as a sport as a result of his
injuries. His injuries and damages amount to R 950 000,00. Mr Barnes wants to institute
a claim against Joe Speedy. He approaches you for legal advice.

Answer the following questions, using proper references. Note: In your answers,
you are required to make up facts to supplement the given facts of the case in
so far as your own rendition does not detract from the core issues.
(a) Discuss whether Mr Barnes will use a provisional sentence summons or a
combined summons to institute his claim or action. (4)
(b) Discuss the pleading that will be annexed to the summons to support Mr Barnes’
claim or action. (4)

(c) Define the term “facta probanda”. (4)

(d) Draft that section of the pleading (referred to in 1 (b) above) that sets out Mr
Barnes’ facta probanda only. (10)

(e) It transpires that Mr Barnes’ pleading has not been signed by his legal
representative. Describe the procedure that can be used by Mr Joe Speedy’s legal
representative to address this oversight. (6)
[28]

2. Critically discuss how an inadequate pleading can be rectified. (4)

3. Discuss the use of vocational training in practice. (6)

4. Distinguish between a counterclaim and an interpleader claim by way of examples. (6)

5. Discuss how one can address the following mistakes in negotiation:

5.1 failing to plan a concession
5.2 no attention to detail
5.3 employing an inflexible approach to the case (6)
[22]

[50]

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QUESTION 2: CRIMINAL PRACTICE

1. Section 60(11) of the Criminal Procedure Act 51 of 1977 requires the accused to
“adduce evidence” in support of his or her bail application. Fully discuss the bail
application in respect of the above provision. (10)
2. Mr Amos Museka is a well-known criminal defence attorney. Mr Museka is
representing his client, C, in a rape trial. C has pleaded not guilty to the charge of
rape. An interpreter, T, is used during the trial. T was not briefed in advance about the
trial. During the cross-examination of a state witness, Mr Museka continuously
interrupts T (the interpreter), demands that T speaks up and blames T for inaccurate
and incorrect interpretation of the witness’ testimony. T soon breaks down in tears as
a result of the sustained attack. The state witness also shows impatience and
tiredness with the cross-examination process. The presiding officer consequently
calls for a short recess to give T and the state witness time to compose themselves.
Critically discuss the duty of trial lawyers towards witnesses and interpreters. In your
answer you should also indicate whether Mr Museka’s conduct conforms to general
standards of professional conduct expected of trial lawyers. (10)
3. Discuss the role of the prosecutor in the administration of justice. Refer to relevant case
law in your answer. (8)
4. You are doing pupilage and are ordered by your master, Advocate Einstein, to draft a
section 105 agreement for his client who was arrested on a charge of public violence
following the taxi strike in Cape Town.
Answer the questions that follow, using proper references. Note: In your answers,
you are required to make up facts to supplement the given facts of the case in
so far as your own rendition does not detract from the core issues.

(a) Discuss the requirements for a charge in terms of the Criminal Procedure Act 51
of 1977 and draft the above charge. (8)
(b) Briefly discuss what section 105A of the Criminal Procedure Act 51 of 1977
addresses. (5)
(c) List the parties who form part of the section 105A process. (5)
(d) Briefly discuss the sentencing agreement in terms of section 105A of the Criminal
Procedure Act 51 of 1977. (4)

[50]

TOTAL: [100]
©

Unisa 2023

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4. DECLARATION OF AUTHENTICITY AND ACCURACY

We enclose a sample declaration for completion. Please attach the signed declaration to
your examination answers. We will not mark your examination UNLESS you attach the
signed declaration to your examination answers.

DECLARATION OF AUTHENTICITY AND ACCURACY

I,………………………………………………………… (Full name/s and surname)

Student number: …………………………………………………..

declare that I am the author of this examination in TLI4801. I further declare that the
entire examination is my own, original, correct work and that where I used other
information and resources, I did so in a responsible manner. I did not plagiarise in
any way and I have referenced and acknowledged any legal resources that I
have consulted and used to complete this examination. By signing this declaration, I
acknowledge that I am aware of what plagiarism is, and the consequences
thereof. Furthermore, I acknowledge that I am aware of UNISA’s policy on plagiarism
and understand that if there is evidence of plagiarism within this document, UNISA
may take the necessary action.

Date: ……………………………………………………..

Place:………………………………………………………

Signature:…………………………………………………….
(provide an electronic signature or type or write your name or surname again)

5. CONCLUDING REMARKS

Your results will be released by the Directorate: Student Assessment Administration

(DSAA) during the October/November 2023 official release period of examination results.
We as lecturers are not authorised to release any results in any manner. We wish you
success with your future studies.

Regards

Prof J Le Roux-Bouwer
Mr B Mashabane
Unisa/kr