Tutorial Letter 101/0/2024 Capita Selecta From The Law of Criminal Procedure and Evidence
Tutorial Letter 101/0/2024 Capita Selecta From The Law of Criminal Procedure and Evidence
IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail account and make sure
that you have regular access to the myUnisa module website,
MODULE CODE-24-Y, as well as your group website
Note: This is a fully online module. It is, therefore, only available on myUnisa.
BARCODE
CONTENTS
Page
1 INTRODUCTION 3
2 PURPOSE AND OUTCOMES 5
2.1 Purpose 5
2.2 Outcomes 5
3 CURRICULUM TRANSFORMATION 7
4 CONTACTING THE UNIVERSITY VIA EMAIL 7
4.1 Lecturer(s) 8
4.2 Department 8
4.3 College of Law Information Centre 8
4.4 University 8
5 RESOURCES 9
5.1 Prescribed book(s) 9
5.2 Recommended book(s) 9
5.3 Electronic reserves (e-reserves) 10
5.4 Library services and resources 17
6 STUDENT SUPPORT SERVICES 18
6.1 The Unisa First-Year Experience Programme 18
6.2 Companies falsely advertising Unisa services 19
7 STUDY PLAN 20
8 PRACTICAL WORK 20
9 ASSESSMENT 20
9.1 Assessment criteria 20
9.2 Assessment plan 20
9.3 Assessment due dates 20
9.4 Submission of assessments 20
9.4.1 Types of assignments and descriptions 21
9.5 The assessments 22
9.5.1 Assignment 01 (If relevant. If not, please delete) 22
9.6 Other assessment methods 22
9.7 The examination 23
9.7.1 Invigilation/proctoring 23
10 ACADEMIC DISHONESTY 23
10.1 Plagiarism 23
10.2 Cheating 24
10.3 Academic and administrative matters 24
10.3.1 Academic matters 24
10.3.2 Administrative matters 24
11 STUDENTS LIVING WITH DISABILITIES 24
12 FREQUENTLY ASKED QUESTIONS 24
13 IN CLOSING 25
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Dear Student
1 INTRODUCTION
Unisa is a comprehensive open distance e-learning (CODeL) higher education institution. The
comprehensiveness of our curricula encapsulates a range of offerings, from strictly vocational to
strictly academic certificates, diplomas and degrees. Unisa's "openness" and its distance
eLearning character result in many students registering at Unisa who may not have had an
opportunity to enrol in higher education. Our CODeL character implies that our programmes are
carefully planned and structured to ensure success for students ranging from the under-
prepared but with potential to the sufficiently prepared.
Teaching and learning in a CODeL context involves multiple modes of delivery ranging from
blended learning to fully online. As a default position, all post graduate programmes are offered
fully online with no printed study materials, while undergraduate programmes are offered in a
blended mode of delivery where printed study materials are augmented with online teaching
and learning via the learner management system – myUnisa. In some instances, undergraduate
programmes are offered fully online as well.
Furthermore, our programmes are aligned with the vision, mission and values of the University.
Unisa's commitment to serve humanity and shape futures combined with a clear appreciation of
our location on the African continent, Unisa's graduates have distinctive graduate qualities
which include
• independent, resilient, responsible and caring citizens who are able to fulfil and serve in
multiple roles in their immediate and future local, national and global communities
• having a critical understanding of their location on the African continent with its histories,
challenges and potential in relation to globally diverse contexts
• the ability to critically analyse and evaluate the credibility and usefulness of information
and data from multiple sources in a globalised world with its ever-increasing information
and data flows and competing worldviews
• an awareness of their own learning and developmental needs and future potential
Whether a module is offered either as blended (meaning that we use a combination of printed
and online material to engage with you) or online (all information is available via the internet),
we use myUnisa as our virtual campus. This is an online system that is used to administer,
document and deliver educational material to you and support engagement with you. Look out
for information from your lecturer as well as other Unisa platforms to determine how to access
the virtual myUnisa module site. Information on the tools that will be available to engage with
the lecturer and fellow students to support your learning will also be communicated via various
platforms.
You are encouraged to log into the module site on myUnisa regularly (that is, at least twice per
week).
The lecturers for CMP5901 extend a warm word of welcome to all of you currently registered for
this module. We also wish to congratulate you on your decision to further your studies in law
and contribute to the growing body of knowledge produced by LLM graduates in Africa and the
rest of the world. Postgraduate work is an exciting journey in which you will be required to think
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independently and creatively. You will find it differs greatly from your undergraduate studies and
provides a wider scope for practical application and analytical critique.
This is an online module and all the tutorial material is offered online. This means that all
information is available via the internet, and we use myUnisa as our virtual campus. This is an
online system that is used to administer, document and deliver educational material to you and
support engagement with you. Look out for information from your lecturer as well as other Unisa
platforms to determine how to access the virtual myUnisa module site. Information on the tools
that will be available to engage with the lecturer and fellow students to support your learning will
also be communicated via various platforms. You are encouraged to log into the module site for
CMP5901 on myUnisa regularly (that is, at least twice per week). The website for your module
is CMP5901-23-Y.
Owing to the nature of this module, you can read about the module and find your study material
online. Go to the website at https://my.unisa.ac.za and log in using your student number and
password. Click on "myModules" at the top of the web page and then on "Sites" in the top right
corner. In the new window, click on the grey Star icon next to the modules you want displayed
on your navigation bar. Close the window in the top right corner. Then select the option
"Reload to see your updated favourite sites". Now go to your navigation bar and click on the
module you want to open.
We hope that you will find the postgraduate study of selected aspects from the law of criminal
procedure and evidence both rewarding and enriching. Criminal procedure, as many of you are
aware from your previous studies and perhaps practice of criminal procedure, provides
substantive criminal law with adjective rules. Not surprisingly, this module (CMP5901) is
steeped in rules and mechanisms that are certain, but sometimes indirect in application. We
therefore advise you to take the same approach to your studies in the present module – think
laterally and apply the principles that you have learnt to the situation described.
Accomplishment is labour-driven, and we therefore suggest that you start studying early in order
to guarantee success in this module.
This tutorial letter contains valuable information and we advise you to keep it nearby when
working through the study material and addressing questions to the lecturers. Contained in this
tutorial letter you will find a discussion of each individual caput (topic) that will be addressed in
the module, as well as administrative advice on various issues. This tutorial letter further
provides the information you need with regard to the prescribed and recommended study
material and the acquisition thereof. Please study this information carefully and make sure that
you obtain the study material as soon as possible.
From the outset, we would like to point out that you must read all the tutorial letters you
receive during the year immediately, as they always contain important and, sometimes, urgent
information. Please be advised that myUnisa is a valuable source of information on which we
upload your study material and tutorial letters once they are available. Please consult this
electronic resource as often as possible. We would also like to remind you that this module is
supported by the myUnisa platform.
A word of caution: Please do not take this module lightly, as it requires in-depth learning and
concentration. Our approach to your learning in this module is interactive, theoretical and
practical. We hope you will enjoy this approach and wish you all the best with your studies.
Please do not hesitate to contact us if you experience any challenges with the module content.
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2.1 Purpose
Students who have completed this module successfully will be able to gain advanced
knowledge, research skills, and applied competence in selected topics from the law of criminal
procedure and evidence so as to encourage continued personal intellectual growth, gainful
economic activity, and valuable contributions to society. As previously indicated, criminal
procedure and evidence, as divisions of adjective (or formal) law, require that you understand
the rules and procedures prescribed to employ the common- and statutory law principles of
substantive law. In order to comply with the rule of law, procedural-law mechanisms are
prescribed which allow criminal-law principles to be applied. A secondary purpose of this
module is therefore to instil the theoretical knowledge and context required in order to
successfully employ substantive criminal law in a courtroom/criminal trial.
The module is designed to investigate and critically evaluate selected aspects of the law of
criminal procedure and the law of evidence. The module focuses on aspects relevant to South
African pre-trial, trial and post-trial proceedings against both adult accused and children in
conflict with the law. The module is designed to inculcate advanced themes, particular to both
criminal procedure and the law of evidence, in a comprehensive and systematic fashion. The
module content is intended to focus on multifunctional themes relevant to South African criminal
litigation therefore instilling the necessary research skills, theoretical knowledge and applied
competence which will enable a student to function within an advanced adjectival arena in
South Africa criminal procedure and law of evidence.
Throughout this module, you will find a range of assignments and activities that have been set
to develop your knowledge of selected aspects of the law of criminal procedure and evidence
with the above purpose in mind. We will ultimately expect you to display summative knowledge
of the study material in the examination.
2.2 Outcomes
• Specific outcome 1:
• Specific outcome 2:
Develop an advanced, clear understanding of the notions and guidelines with reference to the
implementation of the criminal procedure framework as an essential element of the rule of law.
To achieve this outcome, you should ensure that you incorporate the scope, functioning and
governing principles of the Criminal Procedure Act 51 of 1977 and Child Justice Act 75 of 2008
in your cognitive framework of understanding of the law as a related set of systems.
• Specific outcome 3:
Cultivate adequate knowledge, skills, values, attitudes and competencies, which enable you to
analyse, and to critically evaluate legal material (the Constitution, legislation, case law and
academic opinion), so that you can demonstrate practical understanding of criminal procedure
and the law of evidence in real-life situations. To achieve this outcome, you must be able to
command the theoretical principles and practical consequences of specific aspects of criminal
procedure and the law of evidence. The scope of this outcome also requires you to identify,
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analyse and solve complex and multidimensional legal problems and issues related to criminal
procedure and the law of evidence originally and creatively by drawing systematically and
creatively on the theory, research, case law and literature pertaining to specified subject fields in
both the law of criminal procedure and the law of evidence.
• Apply legal principles regarding child justice procedure to practical situations and solve
multidimensional legal problems associated with sentencing of child offenders.
• Rigorously critique and evaluate research, case law and scholarly debates regarding the
law of sentencing in order to provide unbiased and balanced perspectives on legal
problems within the contextual framework.
• Identify, analyze and solve complex multidimensional problems and issues relating to the
law of sentencing originally and creatively by drawing systematically and creatively on the
theory, research, case law and literature relating to the field of sentencing.
• Demonstrate advance legal scholarship relating to the law of sentencing in national and
global contexts.
• Rigorously critique and evaluate research, case law and scholarly debates regarding the
exclusion of unconstitutionally obtained evidence and the admissibility of computer-
generated evidence in order to provide unbiased and balanced perspectives on legal
problems within a contextual framework.
• Identify, analyze and solve complex multidimensional problems and issues relating to the
exclusion of unconstitutionally obtained evidence and the admissibility of computer-
generated evidence originally and creatively by drawing systematically and creatively on
the theory, research, case law and literature in this area.
Criminal procedure and the law of evidence are living areas of the law and are therefore
constantly developing. The courts implement, develop and expand the principles of criminal
procedure and its associated rules of evidence almost daily. For this reason, it is important that
you keep up to date with specific developments and demonstrate an advanced ability to
rigorously critique and evaluate research, case law and scholarly debates regarding criminal
procedure and evidence in order to provide unbiased and balanced perspectives on legal
problems within a contextual framework.
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Remember that this module is a postgraduate module, and we therefore expect a higher level of
legal knowledge and critical analysis than in your undergraduate studies. This module requires
commitment from you with regard to learning hours and learning outputs and should not be
taken lightly.
3 CURRICULUM TRANSFORMATION
Unisa has implemented a transformation charter, in terms of which the university has placed
curriculum transformation high on the teaching and learning agenda. Curriculum transformation
includes student-centred scholarship, the pedagogical renewal of teaching and assessment
practices, the scholarship of teaching and learning, and the infusion of African epistemologies
and philosophies. All of these will be phased in at both programme and module levels, and as a
result of this you will notice a marked change in the teaching and learning strategy implemented
by Unisa, together with the way in which the content is conceptualised in your modules. We
encourage you to embrace these changes during your studies at Unisa in a responsive way
within the framework of transformation.
To assist Unisa to safeguard your personal information, please ensure that you only use your
myLife e-mail account when communicating with the university. We will not be responding to
any emails sent from private email addresses.
By using your myLife e-mail account, the university has a reasonable assurance that we are
communicating with you, as your e-mail address contains your student number and you use
your login credentials to access the account.
Unisa may only communicate with a student using a private e-mail address under the following
circumstances:
• New applicants who are enquiring about information for the purpose of applying for
admission.
• New applicants who do not yet have a myLife e-mail account, because they have been
admitted but not yet registered.
• Where a student requires assistance in resolving myLife e-mail account access problems.
Please be aware that any personal information you publish on public platforms, such as social
media platforms and WhatsApp groups, is not covered by the provisions of Protection of
Personal Information Act 4 of 2013. Any personal information published in the public domain is
not considered private and can, therefore be accessed by external parties with access to such
platforms.
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4.1 Lecturer(s)
The lecturers for this module are from the Department of Criminal and Procedural Law. Dr
Mokoena is the primary lecturer/module leader in CMP5901.
4.2 Department
You can contact the Department of Criminal and Procedural Law as follows:
You are advised to contact the lecturers and not the secretaries regarding the module content of
this module.
Please send all e-mails from your myLife e-mail account. If you send an e-mail directly to a
Unisa e-mail address, include your student number in the subject line to ensure that your e-mail
is correctly routed for an advisor for processing.
4.4 University
To contact the university, please dial 080 000 1870. Remember to keep your student number at
hand when contacting the university. The Unisa Student Communication Service Centre will be
open weekdays from 08:00 – 16:00 (South African Standard Time).
Please send all e-mails from your myLife e-mail account. If you send an e-mail directly to a
Unisa e-mail address, include your student number in the subject line to ensure that your e-mail
is correctly routed for an advisor for processing. Please check the list carefully and send an
enquiry to one e-mail address only. This will ensure that there is no confusion as to who must
respond, thereby preventing unnecessary delays in the response or the email portrayed as
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spam. Students should only forward enquiries to the Registrar and Deputy Registrar in
instances where those enquiries could not be resolved at other levels.
Contact addresses of the various administrative departments appear on the Unisa website:
http://www.unisa.ac.za/sites/corporate/default/Contact-us/Student-enquiries.
5 RESOURCES
You must purchase these books yourself. These are indicated separately in the prescribed
reading list per capita in 5.4 below.
You may choose to purchase these books, if you wish to. Refer to 5.4 below Recommended
books can be requested online, via the Library catalogue.
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5.3 Electronic reserves (e-reserves)
Topics:
According to the syllabus for this course, you must study four (4) capita/topics for the
examination. The four (4) capita/topics from the overarching body of criminal procedure and
the law of evidence which we have selected for this module, are the following:
1. The nature, scope, adjectival content and practical implications of child justice in South
African criminal process.
2. The nature, scope, content and practical implications of South African sentencing practice.
3. The nature, scope, content and practical implications of the constitutional exclusionary
rule.
4. The nature, scope, content and practical implications of the admissibility of computer-
generated evidence.
All four (4) topics above concentrate on South African criminal procedure and evidence but you
will be expected to do comparative research on selected jurisdictions, as indicated later in this
document. In this tutorial letter we introduce the capita or topics mentioned above in individual
sections later in this document.
During the year, you will submit two (2) assignments based on the four (4) topics named above.
It is of the utmost importance that you realise from the outset, that this study of various sections
of criminal procedure and evidence is of an advanced nature. You must therefore study each
caput in depth. It will be to your advantage to do as much reading as possible on these topics
in order to gain proper insight into the subject matter. Because this module is more advanced
than the corresponding LLB courses, you should not regard mere factual knowledge of the
applicable legal rules as sufficient; you must demonstrate critical insight into the subject matter
of each caput.
We will sometimes draw your attention to conflicting opinions concerning certain aspects of the
law. You must be able to take an independent view of a debatable point, and to substantiate
that opinion properly. To give you a wider background, you will be expected to take cognisance
of the corresponding rules in certain foreign legal systems and their approach to specific
procedural issues. It is also important to study all of the prescribed material. Do not limit your
study to one or two South African textbooks on criminal procedure and evidence to the
exclusion of other prescribed sources. We may pose certain questions in the examination based
exclusively on the contents of certain prescribed sources. You will be expected to read the most
important South African decisions on the prescribed topics yourself, devoting particular attention
to more recent judgments. Should you experience any problems with your studies, you are
more than welcome to consult your lecturers.
There are extensive e-reserves/reading lists for this module. We would also like to remind
you that this module is being integrated strongly with the online myUnisa platform, and the
lecturers may post additional reading material or other such sources under the "Additional
Resources" link on the myUnisa portal for this module. We once again emphasise that if you
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do not access myUnisa, we will not take any responsibility for information you may miss and
that may be posed in an examination question(s).
As previously discussed, this module is based on four (4) capita/topics from the overall
structure of criminal procedure and the law of evidence. Capita 1 and 2 address the Law of
Criminal Procedure, whilst capita 3 and 4 address the Law of Evidence. Below we will discuss
each of these capita and include references to prescribed and recommended sources. We will
indicate which sources you must obtain independently and those that are available as e-
reserves.
5.3.1.1 Introduction
In this caput you will be required to make a thorough study of certain material. Such material is
indicated infra as basic study material. Please note that knowledge of the basic study material
will not necessarily ensure success in that part of the examination which will deal with this
caput. The purpose of the study material is to broaden your background knowledge and to
sharpen your critical evaluation skills. You must therefore work through the material so that you
are able to view the field of knowledge holistically and in an integrated fashion. The degree to
which you will assimilate the study material will be determined by the time (and energy) at your
disposal. Independent research leading to further sources and a more complete understanding
will of course eventually be reflected in your examination mark.
We assume your knowledge of the fundamental principles of criminal procedure underlying the
present caput. You may refresh your memory by consulting the relevant parts of any South
African textbook on criminal procedure.
The following material is prescribed for this caput and indication is made as to whether the
material is available as e-reserves or whether you are required to obtain the material
independently.
Karels MG, Swanepoel JP, Basdeo MV and Mokoena, TM Child offenders in South African
criminal justice: concepts and process 2015 (Juta and Company Cape Town). Note: You are
required to purchase this book.
Karels MG, Child offenders in the South African criminal justice system: a critical analysis of the
applicability of the ‘open justice’ principle 2015 (Unpublished LLD thesis University of South
Africa) chapter 1 and 3.
Note: the chapters are prescribed; they are available either on the e-reserves/additional
resources site on myUnisa.
Songca R, Sibanda OS, Basdeo MV, Luyt WFM, Hesselink AE, Dastile NP, Matetoa, JM, Mooki
MS, Karels MG, Vulnerable children in the South African justice system 2016 (Juta and
Company Cape Town). Note: You are required to purchase this book.
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b) Articles
The articles listed hereunder are available as e-reserves on the library website/additional
resources. They are all prescribed reading material for this caput.
Badenhorst C, ‘Diversion provisions in terms of the Child Justice Act 75 of 2008’ (2013) South
African Journal of Criminal Justice 302-315
Badenhorst C, ‘Diversion: the present positions and proposed future positions’ (2004) Acta
Criminologica: 115-130
Ballard C, ‘The situation of children in prison after the implementation of the Child Justice Act:
has anything changed’ (2011) Article 40 1-4
Barth E, ‘Blurring the lines: when the 'best interests of the child' fall by the wayside’ 79 (2011)
University of Cincinnati Law Review 323-348
Ferreira S, ‘The best interest of the child: from complete indeterminacy to guidance by the
Children's Act’ 73 (2010) Journal of Contemporary Roman-Dutch Law 1-13
Gabbay ZD, ‘Holding restorative justice accountable’ (2006-2007) Cardoza Journal of Conflict
Resolution 85-141
Karels MG, ‘The triumvirate role of legal counsel for child offenders: representative, intercessor
or agent?’ 26 (2013) South African Journal of Criminal Justice 276-301
Karels MG and L Pienaar, ‘Determination of criminal capacity of child offenders – interfacing the
procedural requirements of the Child Justice Act and Criminal Procedure Act’ (2015) Obiter 57-
78
Skelton A, ‘Proposals for the review of the minimum age of criminal responsibility’ (2013)
South African Journal of Criminal Justice 257-275
Sloth-Nielsen J and J Gallinetti ‘Just say sorry?' Ubuntu, Africanisation and the Child Justice
System in the Child Justice Act 75 of 2008’ 14(4) (2011) Potchefstroom Electronic Law Journal
63-90
Songca R, ‘Evaluation of children’s rights in South African law: the dawn of an emerging
approach to children’s rights?’ 3 (2011) Comparative and International Law Journal of Southern
Africa 340-359
Terblanche SS, ‘Sentencing a child who murders-DPP, KwaZulu-Natal v P 2006 (1) SACR 243
(SCA): comment’ (2007) South African Journal of Criminal Justice 243-255
Terblanche SS, ‘The Child Justice Act: A Detailed Consideration of Section 68 as a Point of
Departure with Respect to the Sentencing of Young Offenders’ (2012) Potchefstroom
Electronic Law Journal 436-475
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c) Additional material
Additional material is not loaded under the e-reserves section of the module. You are required
to source the following material independently:
d) Case law
The cases listed hereunder are available as e-reserves on the library website. They are all
prescribed reading material for this caput.
Centre for Child Law v Minister of Justice and Constitutional Development 2009 (6) SA 632
(CC)
De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2004 (1) SA 406 (CC)
J v National Director of Public Prosecution and Another [2014] ZACC 13
S v CKM and 2 Similar Cases (Centre for Child Law as Amicus Curiae) 2013 (2) SACR 303
(GNP) (North Gauteng High Court, 2013)
S v Danster [2013] JOL 30662 (ECP)
S v FM 2013 (1) SACR 57 (GNP)
S v Goliath 2014 (2) SACR 290 (ECG)
S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC)
5.3.2 CAPUT 2: The nature, scope and content of South African sentencing practice
5.3.2.1 Introduction
• have a thorough knowledge of the exact framework within which the different levels of
sentencing courts in South Africa can impose sentence
• understand that sentencing normally takes place through the exercise of discretion
• know why discretion is regarded essential in the field of sentencing
• be able to discuss the advantages and disadvantages of the sentence discretion
• be familiar with the reform initiatives with regard to the sentence discretion in South Africa
• be able to explain how a number of foreign countries dealt with similar problems, and how
those reforms were accepted
• be able to apply current mandatory and minimum sentences in situations where they are
applicable
• have a thorough knowledge of the principles by which a court in South Africa reaches its
decision regarding the sentence that should be imposed in any given case
• be able to explain fully the imposition of a certain sentence in any given case (relating to
adult accused and children in conflict with the law)
• be in a position to impose a specific sentence on a given set of facts, and to accurately
substantiate this sentence (relating to adult accused and children in conflict with the law).
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5.3.2.2 Prescribed reading material
All of the sources listed hereunder are available as e-reserves on the library website. They are
all prescribed reading material for this caput. Legislation should be sourced independently.
You will find a useful overview of many of the issues involved in this caput in the following
sources:
a) Books
Ashworth A, ‘Four techniques for reducing sentence disparity’ in Von Hirsch A & Ashworth A
(eds), Principled sentencing 2nd edition (1998) 227-239
Frankel in Von Hirsch A & Ashworth A (eds), Principled sentencing 2nd edition (1998) 212-219
Gottfredson MR & Gottfredson DM, Decision making in criminal justice 2nd edition (1988) 139-
169
Nicholas HC, ‘Consistency and discretion in sentencing in the courts’ in Midgley J et al, Crime
and punishment in South Africa (1975) 149-157
Harcourt AB Harcourt AB, ‘Issues of crime and punishment in South Africa’ in Midgley J et al,
Crime and punishment in South Africa (1975) 159-167. Note: The prescribed chapters are
available as an e-reserve.
Joubert JJ (ed), Criminal Procedure Handbook 13th edition (2019) chapter 19. Note: The
prescribed chapter is available as an e-reserve.
Munro C, ‘Judicial independence and judicial functions’ in Munro C & Wasik M (eds),
Sentencing, judicial discretion and training (1992) 13-32
Terblanche SS, Sentencing 2016 (LexisNexis Durban). Note: You are required to purchase this
book.
Terblanche SS, Sentencing in Joubert et al Criminal Procedure Handbook 13th edition (2019).
Note: The prescribed chapters are available as an e-reserve.
Terblanche SS, A guide to sentencing in South Africa 3rd edition (2016). Note: You are
required to source this book independently.
Von Hirsch A & Ashworth A (eds), Principled sentencing 2nd edition (1998) 213-214
The Constitution of the Republic of South Africa, 1996, also affects the basic options available
to the court. Therefore, you should know how sentencing will be influenced by the Constitution
by reading the following sources which are uploaded as e-reserves on the library website:
Van Zyl Smit D, ‘Sentencing and Punishment’ in Woolman S et al, Constitutional law of South
Africa 2 edition (2005) 49-1 to 49-38
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b) Legislation
c) Cases
LAW OF EVIDENCE
5.3.3 CAPUT 3: The nature, scope, content and practical implications of the constitutional
exclusionary rule
All of the sources listed hereunder are available as e-reserves on the library website. They are
all prescribed reading material for this caput.
You will find a useful overview of many of the issues involved in this caput in the following
sources:
a) Books
Schwikkard PJ & Van der Merwe SE,Principles of Evidence 4th edition (2016) Chapter 12 [90]
b) Articles
Mahoney R, ‘Problems with the current approach to s. 24(2) of the Charter: An inevitable
discovery’ (1999) Criminal Law Quarterly 443 [16]
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Penney S, ‘Taking deterrence seriously: excluding unconstitutionally obtained evidence under
section 24(2) of the Charter’ (2004) McGillLJ 105 [40]
Van der Merwe SE, ‘The ‘good faith’ of the police and the exclusion of unconstitutionally
obtained evidence’ (1998) SACJ 462 [7]
c) Cases
Levack v Regional Magistrate Wynberg 2003 (1) SACR 187 (SCA) [13]
5.3.4 CAPUT 4: The nature, scope, content and practical implications of the admissibility of
computer-generated evidence
All of the sources listed hereunder are available as e-reserves on the library website. They are
all prescribed reading material for this caput. Legislation should be sourced independently.
You will find a useful overview of many of the issues involved in this caput in the following
sources:
a) Books
Schwikkard PJ & Van der Merwe SE, Principles of Evidence 4th (2016) Ch 21 [12]
Van der Merwe DP et al, Information and Communications Technology Law (2008) Ch 5 [38]
b) Articles
De Villiers DS, ‘Old ‘documents’, ‘video tapes’ and new ‘data messages’ – a functional
approach to the law of evidence’ (part 1) (2010) 3 TSAR 558 [18]
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De Villiers DS, ‘Old ‘documents’, ‘video tapes’ and new ‘data messages’ – a functional
approach to the law of evidence’ (part 2) (2010) 4 TSAR 720 [16]
Steele JT, ‘Computer-produced print-out – reliable as evidence?’ (1983) SALJ 505 [6]
Van der Merwe DP, ‘The current legal position regarding digital evidence (and XML as a
possible solution)’ (2010) THRHR 81 [12]
c) Legislation
The Electronic Communications and Transactions Act 25 of 2002, Chapter III [20]
d) Cases
Barclays Western Bank Ltd v Creser 1982 (2) SA 104 (T) [4]
Narlis v South African Bank of Athens 1976 (2) SA 573 (A) [8]
Ndhlovu v Minister of Correctional Services [2006] 4 All SA 165 (W) [16]
S v Brown 2016 (1) SACR 206 (WCC) [12]
S v De Villiers 1993 (1) SACR 574 (Nm) [8]
S v Harper 1981 (1) SA 88 (D) [10]
Motata v Nair NO and Another 2009 (1) SACR 263 (T) [7]
S v Ndiki [2007] 2 All SA 185 (CK) [15]
The Unisa Library offers a range of information services and resources. The library has created
numerous library guides, available at http://libguides.unisa.ac.za
Recommended guides :
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• Support and Services for students with disabilities -
https://www.unisa.ac.za/sites/corporate/default/Library/Services-for-students-with-special-
needs
• Library Technology Support -https://libguides.unisa.ac.za/techsupport
• Finding and using library resources and tools -http://libguides.unisa.ac.za/Research_skills
• A–Z list of library databases – https://libguides.unisa.ac.za/az.php
This brochure contains important information and guidelines for successful studies through
Unisa. If you need assistance with regard to the myModules system, you are welcome to use
the following contact details:
You can access and view short videos on topics such as how to view your calendar, how to
access module content, how to view announcements for modules, how to submit assessment
and how to participate in forum activities via the following link:
https://dtls-qa.unisa.ac.za/course/view.php?id=32130
Registered Unisa students get a free myLife e-mail account. Important information, notices
and updates are sent exclusively to this account. Please note that it can take up to 24 hours
for your account to be activated after you have claimed it. Please do this immediately after
registering at Unisa, by following this link: [email protected]
Your myLife account is the only e-mail account recognised by Unisa for official
correspondence with the university and will remain the official primary e-mail address on
record at Unisa. You remain responsible for the management of this e-mail account.
Many students find the transition from school education to tertiary education stressful. This is
also true in the case of students enrolling at Unisa for the first time. Unisa is a dedicated open
distance and e-learning institution, and it is very different from face-to-face/contact institutions. It
is a mega university, and all our programmes are offered through either blended learning or fully
online learning. It is for this reason that we thought it necessary to offer first-time students
additional/extended support to help them seamlessly navigate the Unisa teaching and learning
journey with little difficulty and few barriers. We therefore offer a specialised student support
programme to students enrolling at Unisa for the first time – this is Unisa’s First-Year
Experience (FYE) Programme, designed to provide you with prompt and helpful information
about services that the institution offers and how you can access information. The following FYE
services are currently offered:
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FYE1500
Post
Registration myUnisa; Study
Orientation Skills; Academic &
Referrals to
Digital Literacies;
other support etc
services i.e.
Counselling;
Reading & Writing
workshops
To ensure that you do not miss out on important academic and support communication
from the SRU, please check your myLife inbox regularly.
Some companies and social media pages have been falsely advertising Unisa online
information and various services to assist Unisa students. In the process, companies either
solicit money fraudulently from students or make money through online advertising with no
benefit to students.
We request that students only use official Unisa sites and platforms as any other platforms will
provide you with incorrect information and/or act illegally which will be harmful to your studies.
Unisa will always use official communication channels (eg Unisa website, myUnisa, Unisa social
media platforms, myLife e-mail) to communicate with students.
Please use the following Unisa platforms for official Unisa information:
• www.unisa.ac.za
• https://my.unisa.ac.za
• https://www.facebook.com/UniversityOfSouthAfrica
• https://twitter.com/unisa
• https://www.linkedin.com/company/unisa
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7 STUDY PLAN
Please consult the publication Study@Unisa brochure for general time management and
planning skills.
8 PRACTICAL WORK
9 ASSESSMENT
The assignments for this module consist of two (2) written assignments, which count 100%
each. The two compulsory Assignments 01 and 02, however, contribute 40% towards your
final mark for this module (01=20%; 02=20%). The assignments will be posted on myUnisa.
Please read the instructions for each assignment carefully, as you may score 0% if you fail to
follow our instructions.
The examination paper consists of 100 marks, but it counts 60% towards your final mark for
the module. You will gain admission to the examination by submitting Assignments 01
and 02. In other words, both assignments are compulsory. Please note that should you
obtain less than 40% in the examination; your year mark will not be taken into account in
calculating your final mark.
• To complete this module, you will be required to submit two (2) assessments.
• All information about when and where to submit your assessments will be made available
to you via the myModules site for your module.
• Due dates for assessments, as well as the actual assessments are available on the
myModules site for this module.
• To gain admission to the examination, you will be required to submit two (2) assignment/s.
• To gain admission to the examination, you need to obtain a year mark average of 50% for
the assignments.
• The assignment weighting for the module is 40%.
• You will receive examination information via the myModules sites. Please watch out for
announcements on how examinations for the modules for which you are registered will be
conducted.
• The examination will count 60% towards the final module mark.
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• The myUnisa virtual campus will offer students access to the myModules site, where
learning material will be available online and where assessments should be completed.
This is an online system that is used to administer, document, and deliver educational
material to students and support engagement between academics and students.
• When you access your myModules site for the module/s you are registered for, you will
see a welcome message posted by your lecturer. Below the welcome message you will
see the assessment shells for the assessments that you need to complete. Some
assessments may be multiple choice, some tests, others written assessments, some
forum discussions, and so on. All assessments must be completed on the assessment
shells available on the respective module platforms.
• To complete quiz assessments, please log on to the module site where you need to
complete the assessment. Click on the relevant assessment shell (Assessment 1,
Assessment 2, etc.). There will be a date on which the assessment will open for you.
When the assessment is open, access the quiz online and complete it within the time
available to you. Quiz assessment questions are not included in this tutorial letter (Tutorial
Letter 101) and are only made available online. You must therefore access the quiz online
and complete it online where the quiz has been created.
• It is not advisable to use a cell phone to complete the quiz. Please use a desktop
computer, tablet or laptop when completing the quiz. Students who use a cell phone find it
difficult to navigate the Online Assessment tool on the small screen and often struggle to
navigate between questions and successfully complete the quizzes. In addition, cell
phones are more vulnerable to dropped internet connections than other devices. If at all
possible, please do not use a cell phone for this assessment type.
• For written assessments, please note the due date by which the assessment must be
submitted. Ensure that you follow the guidelines given by your lecturer to complete the
assessment. Click on the submission button on the relevant assessment shell on
myModules. You will then be able to upload your written assessment on the myModules
site of the modules that you are registered for. Before you finalise the upload, double
check that you have selected the correct file for upload. Remember, no marks can be
allocated for incorrectly submitted assessments.
• Elective assignments
- If not submitted, the student gets no mark for this item.
- The best of the required submissions will count.
• Mandatory assignments
- If not submitted, the student gets no mark for this item.
• Compulsory assignments
- If not submitted, the result on the student’s academic record will be absent.
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• Optional assignments – You are encouraged as a student to do optional assignment so
that it may benefit your learning.
I. Elective assignments
As indicated in section 9.2, you need to complete two (2) assessments for this module.
All information on when and where to submit your assignments will be made available to you via
the myUnisa site for your module.
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Examination information and details on the format of the examination will be made available to
you online via the myUnisa site. Look out for information that will be shared with you by your
lecturer and e-tutors (where relevant) and for communication from the university.
9.7.1 Invigilation/proctoring
Since 2020 Unisa conducts all its assessments online. Given stringent requirements from
professional bodies and increased solicitations of Unisa’s students by third parties to unlawfully
assist them with the completion of assignments and examinations, the University is obliged to
assure its assessment integrity through the utilisation of various proctoring tools: Turnitin,
Moodle Proctoring, the Invigilator App and IRIS. These tools will authenticate the student’s
identity and flag suspicious behaviour to assure credibility of students’ responses during
assessments. The description below is for your benefit as you may encounter any or all of these
in your registered modules:
Turnitin is a plagiarism software that facilitates checks for originality in students’ submissions
against internal and external sources. Turnitin assists in identifying academic fraud and ghost
writing. Students are expected to submit typed responses for utilisation of the Turnitin software.
The Moodle Proctoring tool is a facial recognition software that authenticates students’ identity
during their Quiz assessments. This tool requires access to a student’s mobile or laptop
camera. Students must ensure their camera is activated in their browser settings prior to their
assessments.
IRIS Invigilation software verifies the identity of a student during assessment and provides for
both manual and automated facial verification. It has the ability to record and review a student’s
assessment session. It flags suspicious behaviour by the students for review by an academic
administrator. IRIS software requires installation on students’ laptop devices that are enabled
with a webcam.
Students who are identified and flagged for suspicious dishonest behaviour arising from the
invigilation and proctoring reports are referred to the disciplinary office for formal proceeding.
Please note:
Students must refer to their module assessment information on their myModule sites to
determine which proctoring or invigilation tool will be utilised for their formative and summative
assessments.
10 ACADEMIC DISHONESTY
10.1 Plagiarism
Plagiarism is the act of taking the words, ideas and thoughts of others and presenting them as
your own. It is a form of theft. Plagiarism includes the following forms of academic dishonesty:
• Copying and pasting from any source without acknowledging the source.
• Not including references or deliberately inserting incorrect bibliographic information.
• Paraphrasing without acknowledging the original source of the information.
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10.2 Cheating
All module content-related enquiries must first be addressed to the relevant module lecturers.
As already indicated above, all such enquiries must be made from your [email protected]
email account. Where your module lecturer(s) is unable to assist, such enquiries can be
escalated to the Chair of the Department in which your module is located. The Chair of the
Department is the one with the power to resolve issues, is authorised to make such
interventions, and has the final say in matters relating to the administration of a module. Such
escalation must be done via the departmental administrative staff.
Contact information for all the departmental administrative staff in the department is captured
below.
The contact information for all administrative departments is included on par. 4.3 of this Tutorial
Letter. Please address any administrative issues (for example, registration issues, finance-
related issues, graduation issues, auditing of a qualification, etc) with the relevant support
department and not the college.
The Advocacy and Resource Centre for Students with Disabilities (ARCSWiD) provides an
opportunity for staff to interact with first-time and returning students with disabilities.
If you are a student with a disability and would like additional support or need additional time for
assessments, you are invited to contact (Dr MT Mokoena at [email protected]) to discuss
the assistance that you need.
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13 IN CLOSING
Do not hesitate to contact us by e-mail if you are experiencing problems with the content of this
tutorial letter or with any academic aspect of the module.
We wish you a fascinating and satisfying journey through the learning material, and trust that
you will complete the module successfully.
Lecturers
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