TLI4801/202/1/2023

Tutorial Letter 202/1/2023

Techniques in trial and litigation

TLI4801

SEMESTER 1

Department of Criminal and Procedural Law

IMPORTANT INFORMATION:
This tutorial letter contains important information
about the May 2023 examination for your module.
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CONTENTS

1 INTRODUCTORY REMARKS

2 INSTRUCTIONS TO ANSWER THE MAY/JUNE 2023 EXAMINATION (NON-

VENUE BASED EXAMINATION)

3 MAY/JUNE 2023 EXAMINATION QUESTION PAPER (NON-VENUE BASED

EXAMINATION)

4 DECLARATION OF AUTHENTICITY

5 CONCLUDING REMARKS

1. INTRODUCTORY REMARKS

This examination 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 MAY/JUNE 2023 EXAMINATION (NON-

VENUE BASED EXAMINATION)

PLEASE COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN ANSWERING THE

EXAMINATION (NON-VENUE- BASED EXAMINATION).

2.1
Due date for examination: 30 May 2023

Unique number: 635026

Submission period: 26th May– 30th May 2023

ATTENTION SUPPLEMENTARY STUDENTS ONLY: You must submit your

answers on the online portal for Semester 2, 2022 (semester you were originally
registered in) and you must use the unique number for that semester: 883472

ATTENTION ALL STUDENTS:

The mymodules system will open for submission of your answers on 26 May 2023 at
08:00, and it will close on 30th of May 2023 at 23:000 (midnight). 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 SUBMISSIONS WILL
BE ACCEPTED since this assessment counts as your examination for this module.
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You are advised to submit your examination answers as soon as possible. NO

EXTENSION FOR LATE SUBMISSION WILL BE GRANTED.

PLEASE NOTE: Tutorial Letter 202/1/2023 will only be available on mymodules

during the period of submission, as it serves the same purpose as an examination
paper.

Once the submission closes on the system, this tutorial letter is automatically removed
and will no longer be available and can no longer be accessed.

2.2 You must submit your examination answers as a single document in PDF-format, and
same may not be submitted with security restrictions under the “protect document”-
option due to the fact that the security restrictions interfere with the electronic marking
program used and also prevents 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 re-register for this module
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 mymodules or via e-mail. This includes the declaration of
authenticity! A second submission automatically replaces the first submission on
the system, and a submission comprising only a declaration of authenticity will
thus result in a zero-mark.

Ensure you keep a copy of the portfolio that you submit AND keep evidence of your
submission on the mymodules 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, Bugmaster or the ICT Department and not to the
lecturers. We cannot provide any technical assistance and do not have access
to the system. DO NOT EMAIL YOUR PORTFOLIO ANSWERS TO THE
LECTURERS!

2.3 The examination answers must contain your full names, student number, module code,
unique number and declaration of authenticity.

2.4 The examination counts 100 marks and consists of TWO (2) questions. Each answer
must commence on a separate page. Ensure that you give full reasons for each
answer. A mere "Yes" or "No" answer will not earn you any marks. Answer ALL the
questions.

2.5 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. Scripts may also be investigated for possible
disciplinary proceedings in these circumstances.

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Your answers must be typed in Arial 12pt with 1.5 line spacing. Your answers must
appear on one side of the page. Leave a space between each answer. Your entire
portfolio assignment must not exceed 25 pages.

2.6 Your answers must contain complete references to sections in legislation, principles
and relevant case law. Students will be penalised for incomplete or incorrect
references.

2.7 Please ensure that you complete and sign the DECLARATION OF AUTHENTICITY
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.

2.8 Please ensure that you submit the correct assignment – a wrong assignment 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.

3. MAY/JUNE 2023 EXAMINATION (NON-VENUE-BASED ASSESSMENT)

QUESTION PAPER

Due date for examination: 30 MAY 2023

Unique number: 635026

Submission period: 26 May – 30 May 2023

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PORTFOLIO EXAM: MAY/JUNE 2023

TECHNIQUES IN TRIAL AND LITIGATION (TLI4801)

INTRODUCTORY REMARKS:

This type of assessment (non-venue- based assessment) represents the final assessment
in this module. Therefore, do not contact any of the lecturers for guidelines regarding the
completion of this assessment as it is considered a formal examination, which must be
completed independently.

FORMAL REQUIREMENTS:

PLEASE COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN WRITING THE

EXAMINATION (NON-VENUE-BASED ASSESSMENT) AND TAKE NOTE OF THE
FOLLOWING RULES:

(1) THE PAPER CONSISTS OF TWO QUESTIONS, NAMELY QUESTION 1 ON CIVIL

PRACTICE, and QUESTION 2 ON CRIMINAL PRACTICE. BOTH QUESTIONS
ARE COMPULSORY.

(2) THE ANSWERS IN THIS QUESTION PAPER ARE TO BE OBTAINED FROM

YOUR PRESCRIBED STUDY MATERIAL, namely, the prescribed textbook, CG
Marnewick Litigation Skills for South African Lawyers, 4th edition, (2019
LexisNexis), additional resources material and tutorial letter 201. You may
consult other sources provided that they are properly referenced.

(3) YOU ARE REQUIRED TO EXHIBIT YOUR OWN INITIATIVE WHEN ANSWERING
QUESTIONS, IN ORDER TO SHOW THAT YOU UNDERSTAND THE CONTENT.
IN OTHER WORDS, YOU MUST, AS FAR AS POSSIBLE USE YOUR OWN
WORDS WHEN WRITING YOUR ANSWERS. THE WORD-FOR-WORD
REGURGITATION OF ANSWERS FROM THE STUDY MATERIAL WILL NOT BE
REWARDED WITH FULL MARKS.

(4) THE ANSWERS MUST BE WRITTEN OR TYPED. YOUR COMPLETED

ANSWERS MUST THEN BE CONVERTED INTO PDF FORMAT AND
SUBMITTED ONLINE IN THE SAME MANNER THAT YOU SUBMIT ALL OTHER
ASSIGNMENTS ONLINE.

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THE QUESTION PAPER:

QUESTION 1: CIVIL PRACTICE [50]

1.1 Ms. Sue Zim, a businesswoman, has purchased goods on credit to the value of R
500,000 from WoodPeckers (Pty) Ltd. The goods are delivered by WoodPeckers (Pty)
Ltd to Ms. Zim, and a copy of the invoice is handed to Ms Zim. Despite requests by
WoodPeckers (Pty) Ltd, Ms Zim does not pay or settle the amount. WoodPeckers (Pty)
Ltd wants to sue Ms. Zim for the outstanding amount. The company’s director
approaches you for legal advice or assistance regarding the proceedings to be
instituted against Ms. Zim.

Answer all 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 the type of court proceedings that will be used to institute WoodPeckers
(Pty) Ltd’s claim. (4)

(b) Discuss whether summary judgment may be used in the above instance.
(4)

(c) Assuming that there is no application for summary judgment, name and discuss
the pleading that must be drafted by the plaintiff in response to the defendant’s
intention to defend the matter. (4)

(d) Draft the pleading referred to in (c) above. It must include inter alia, a heading,
the description of the parties, their locus standi (if applicable), the court’s
jurisdiction, material facts and the prayer. (20)

(e) WoodPeckers (Pty) Ltd requests your advice about a suitable ADR (alternative
dispute resolution) mechanism that may be used to resolve the dispute with Ms.
Zim expeditiously. Discuss briefly whether arbitration or negotiation is the most
suitable ADR mechanism having regard to the given facts and advise
WoodPeckers (Pty) Ltd accordingly. (6)
(38)

1.2 Discuss the advantages of lawyers using digital resources instead of traditional
methods to undertake legal research. (6)

1.3 Critically discuss the role of the Legal Practice Council in regulating the professional
conduct of its members in practice. (6)
[50]

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QUESTION 2: CRIMINAL PRACTICE [50]

You are a successful lawyer specializing in criminal litigation. While enjoying your morning
coffee in your office you read an article in the newspaper about the local library that was
destroyed in a fire the previous night. No lives were lost in the fire, but the beautiful historical
building and irreplaceable documents were destroyed. The State has therefore suffered
extensive pecuniary loss as a result of the fire. The incident occurred on 29 May 2023 near
Durbanville Hills, Durbanville in the Regional Division of the Western Cape.

The next minute there is a knock on your door. A potential client, Mr Brutal Burndown, enters
your office and consults you in a very distressed state. Mr Burndown conveys to you that he
is charged with arson but that he is not guilty. The evidence against Mr Burndown, however,
is that he was seen by two witnesses loitering near the library before it caught alight. Mr
Burndown vehemently denies that he committed the act of arson or that he acted unlawfully
and intentionally. He instructs you to tender a plea of not guilty on his behalf.

Answer all the following questions.

1.1 Discuss whether you, as an attorney, can fabricate a defence for Mr. Burndown. (4)

1.2 Critically discuss the discretionary role of the court to grant a section 174 discharge.
Motivate your answer by reference to relevant case law. (10)

1.3 Discuss the different techniques that trial lawyers may use in order to improve the
retention of key information presented at the trial. (12)

1.4 Discuss the implications of not preparing/drafting a not guilty plea/statement in terms
of the Criminal Procedure Act 51 of 1977 as instructed by Mr Burndown. (4)

1.5 Draft Mr Burndown’s plea of not guilty in terms of the Criminal Procedure Act 51 of
1977. (10)

Note: In your answer, 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.
(40)

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2. Three suspects, A, B and C, are arrested and charged with human trafficking,
kidnapping, abduction and rape after the police have uncovered a sex trafficking
syndicate in Johannesburg. You represent B at the trial. B informs you that he was
initially approached by one of his co-accused, C, with an elaborate plan to kidnap
young children and prostitute them for money.

All the accused engaged in this conduct well-knowing that their actions were unlawful
and constituted the crimes of human trafficking, kidnapping, abduction and rape. B
acknowledges that, even though he committed some of these acts, he was merely
acting on the instructions of C. B is prepared to provide testimony on behalf of the State
against A and C.

B requires a legal opinion from you on whether he can proceed with providing
evidence on behalf of the State in terms of section 204 of the Criminal Procedure Act
51 of 1977 and the implications of doing so. Provide a legal opinion to B in which you
explain to him whether he can proceed with providing evidence on behalf of the State
in terms of section 204, the implications of doing so as well as the purpose of section
204. You must refer to relevant case law and academic literature in your answer.
(10)
[50]

TOTAL: [100]

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4. DECLARATION OF AUTHENTICITY

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

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 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 Department of Examination Administration (DEA) during
the May/June 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

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