All questions are covered, civil and criminal practice.

Number of pages 15 excluding the bibliography.

ECP 2021

TLI4801

ECP 2021

TLI4801 FINAL ASSIGNMENT(3) ECP 2021

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QUESTION 1

1. a) The purpose of the interview will be to elicit the relevant facts. Clarify the client's

objectives. Explain the law and procedure to the client. Advise the client on the available

options. Counsel the client and to take instructions on the future conduct of the matter.

b) The aim of exchanging pleasantries with the client is to make the client relax and feel

comfortable. It is important that the client is able to relate to you and see you as more

than just a legal practitioner.

2. a) Combined summons will be employed in the sense that the nature of the plaintiff’s

claim (damages) is unliquidated. An unliquidated claim would therefore refer to any claim

in respect of which the quantum thereof must be determined. These summons are used

when the plaintiff’s claim is not founded on a debt or liquidated demand. The pleading

which is going to be annexed to the summons to support Mr Adams action is the

particulars of claim. An unliquidated claim is made by way of "particulars of claim", which

is a separate document and is attached to a "combined summons.

In the given set of facts, Mr Adams will use combined summons it is clear from the

foregoing that the amount of R750 000.00 which Mr Adams intends to claim as damages.

b)

North Gauteng High Court

Case no 888 [2021]

Between

Ralph Adams PLAINTIFF

And

Road Accident Fund (RAF) FIRST DEFENDANT

Dave Mhkize SECOND DEFENDANT

The defendants will be cited as Road Accident Fund (RAF) as the first defendant and

Dave Mhkize as the second defenadant.

c) Facta probanda the facts which must be proved in order to constitute a valid cause of

action. The facts which have to be pleaded, the 'material facts' The material facts are

therefore the essential legal elements of the particular cause of action, charge or defence,

but stated in such a way that they incorporate the specific facts of the case concerned.

d)

PARTICULARS OF CLAIM

1.

On or about 02nd July 2021 the plaintiff was cycling, a bicycle along Long Street,

Johannesburg, the plaintiff was going to Red cross competition line up, cycling in clear

conditions.

2.

As he approached the intersection, the plaintiff was cycling at a lower speed with the other

members of the group known as Fit Riders. He saw traffic lights turn green in their favour.

He intended to go through the intersection into the freeway.

3.

Entering the intersection of Long street, the plaintiff noticed a car (taxi) coming at high

speed into the intersection from her right. The traffic lights must have been red for the

car. The car struck the plaintiff’s bicycle from behind as it was travelling at a high speed.

Mr Adams was in a lot of pain and lost consciousness and came to Hospital in

Johannesburg.

4.

The aforesaid collision was caused solely by the negligent driving of Mr Dave Mhkize who

was negligent in one or more of the following respect:

4.1. He failed to keep proper look-out;

4.2. He failed to avoid the collision when by the exercise of reasonable care and skill he

could and should have done so;

4.3. He failed to take into consideration the safety of other road users, the group of cyclist

in particular.

4.4. He drove the insured Motor Vehicle at an excessive speed under those

circumstances; alternatively, he drove insured Motor Vehicle with defective brakes in the

circumstance;

4.5. He failed to observe the traffic rules, thereby causing an accident;

5.

The bicycle belonged to the plaintiff and the brand name is Pinarello. He imported the

bicycle in 2020 from Germary. The value of the bicycle is R65 000.00.

6.

The plaintiff suffered the following: a broken right leg; a broken pelvis; a deep cut below

his right eye resulting in permanent facial scarring (3 cm long scar running down left side

of the cheekbone) and bruises and abrasions on the right side of my body. The plaintiff

will have a permanent shortening of her leg by about 2cm which will cause her to walk

with a limp and will require raises for her left shoe. The cost would be about R2500 per

pair of shoes for the rest of her lifetime. The plaintiff buys shoes twice a year.

7.

The plaintiff is already struggling to meet household and medical expenses as he is

currently not working due to the injuries.

8.

As a direct consequence of the motor vehicle collision the plaintiff has suffered damage

in the sum of R 750 000, 00 in his personal capacity, arrived at as follows:

8.1 Hospital expenses R 70 000

8.2 Ambulance transport R10 500

8.3 Dr Van Wyk R 25 500

8.4General damage, as calculated in Report B, annexed here to R594 000.00

9.

As the result of the collision and Mr Joe Soap negligence, the plaintiff’s bicycle was

damaged and the plaintiff has suffered damages in the sum of 10 000.

19.1 Value of the plaintiff’s bicycle before the collision R60 000

19.2 Value of the plaintiff’s bicycle after the collision R10 000

19.2 SUBTOTAL R50 000

10.

In the premises, the defendant is liable to pay the sum of R50 000.00 to the plaintiff.

Dated at Pretoria on this 10th day of July 2021.

Plaintiff’s attorney

Mashaba Inc

(“Who has been duly enrolled and vested with the rights of an attorney in terms of the

provisions of Act No. 62 of 1995 under Certificate No. 1068/1996”)

167 Madiba Street

Fourways

Johannesburg

(Ref: XX/P186/0001)

e) Mediation is defined as a private, voluntary, and consensual process whereby parties

attempt to resolve their differences. The dispute resolved through the intervention of a

third party known as a mediator considered to be impartial and accepted by both parties.

The Magistrates’ Courts Rules (“MCR”) have been amended by the insertion of new rules

to regulate this procedure where rule 73 defines mediation as the process by which a

mediator assists the parties in actual or potential litigation to resolve the dispute between

them by facilitating discussion between the parties, assisting them in identifying issues,

clarifying priorities, exploring areas of compromise, and generating options in order to

resolve the dispute.

The mediation can be used in claims of damages and motor car accidents. Mr Adams

can make use of this process as it saves time and costs than litigation.

3. Advocacy can be defined as oral support for an argument or cause and an 'advocate'

is someone who speaks in support of a cause or argument. In the narrow sense, however,

advocacy is regarded as 'the skill of advancing your client's case in the most persuasive

way before the tribunal before whom you appear as an advocate', and an advocate in this

sense is 'a professional pleader for another'. Advocacy may then be seen as 'the act of

persuasion'. The term 'persuasive advocacy' contains a tautology because advocacy, by

its nature, has to be persuasive. That may be so, but the term persuasive advocacy is

used here because that allows the true function of advocacy, namely to persuade or to

convince, to be emphasised. An opinion differs from advocacy. When conducting a trial

or any other form of litigation, the advocate makes submissions subjectively, meaning

that the submissions which may advance the client's case are put before the court

whether the advocate believes in them or not. The judge then makes the decision. When

giving an opinion, the advocate follows an objective approach, telling the client what he

or she (counsel) really thinks of the facts and the law. What the client receives in litigation

is advocacy. What the client receives in an opinion is objective advice. Opinions:

• are advisory in character, answering some legal or factual question.

• are not academic even though they may contain an apparently academic

discussion of a point of law.

• deal with real cases, which means that the opinion is case specific and is shaped

by the facts of the case.

• require a consideration of the legal principles which are applicable to the facts of

the case.

• are objective to the point of being dispassionate.

• are not designed for the process of counselling the client, although the conclusions

reached may well be essential considerations in that process.

4. The LPA Code of Conduct appears to give its blessing to an attorney acting for both

parties in drafting a settlement agreement. Legal practitioner may act for two or more

adversaries in drawing a settlement agreement to capture their agreement, but must

advise the parties of their rights to independent legal advice. Moreover, in any matter

involving a settlement of a matrimonial dispute or a matter involving the regulation of care

and residence of children, the legal practitioner shall take active steps to ensure that all

aspects of any contemplated settlement is equitable to all parties and in the best interests

of the children.

Therefore, it is ethical for Wise Attorney to draft the settlement agreement.

QUESTION 2

1. There is differences between memoranda and minutes written by prosecutors and

those written. Firstly, the difference relates to the filing system. There are literally

thousands of different topics with which public officials have to deal. A four digit reference

system is used to distinguish between various departments, offices and subjects to

ensure that all official documents are filed in a logical place and can, when required, be

found again. For instance the file number for correspondence dealing with statutory

offences is 1/4/3/1 and the file for common law offences is 1/4/3/2.) Every minute must

therefore have a reference number. The general reference number of the file is not

enough. There may be hundreds or even thousands of items under the particular file

number and a means must be used to facilitate the identification of a particular case. This

can be achieved by including the following details, or as many of the details as is feasible:

The name of the accused, the name of the police station, the RCI (register of criminal

investigations) or other appropriate number, the case number, and the charge against the

accused. Thus, whether the advice is given in a memorandum or a minute, it must include

all the necessary details for filing and archiving purposes.

The second difference is that memoranda and minutes are working documents. They are

usually part of a dynamic process. This requires that copies must be at hand when

required, for example in police dockets, case records and the like.

The third difference is that there may be local, provincial or national directives or

guidelines with regard to the style and content of a prosecutor's memoranda and minutes.

Where there are, they must be applied with great care for professional and personal

reasons. (Prosecutors are subject to merit checks and the trail left behind in the form of

memoranda and minutes may well be useful to justify a good score and even promotion

out of turn. Where the circumstances allow it, copies of documents may be kept for

submission to the merit committee.)

2. a)

b)

IN THE REGIONAL DIVISION OF NORTH GAUTENG PRETORIA

Case no 097/2020

In the matter between

THE STATE

And

JON TATE ACCUSED

STATEMENT IN TERMS OF SECTION 115 OF THE CRIMINALPROCEDURE ACT

51 OF 1977

1.

The accused provides the following explanation for his plea as follows:

On the 12 December 2020 was at his residence, 45 Thabo Street in Mamelodi West I

around 9:00am I got a call from my girlfriend Betty Meyer who requested to visit. At around

2:00pm my girlfriend, Betty arrived at my residence and we cooked food. After eating we

engaged into consensual sexual intercourse. Before Betty left she went through my phone

and realized that I was also dating another girl who had who was having sleepovers at

my residence. Betty got angry and broke the TV and other items, she then left and said I

am not done with you.

2.

The accused makes the following admissions, which may be recorded as such in terms

of section 220 of Act 51 of 1977:

One: He was at his residence on the day of the incident

Two: He know Betty Meyer and the two have been in a relationship

Three: He had a sexual encounter with Bettey

(Mashaya)

Attorney for the accused

Rorbet

Accused

3. A lawyer has a duty not to mislead the court. Advocates and attorneys may not mislead

the court, whether directly or indirectly, for example by making misrepresentations or false

statements. Attorneys and advocates are officials of the court and should always give the

courts their due respect. They should not only conduct themselves in a dignified fashion,

but maintain and promote the dignity of the court. They may not mislead the court,

whether directly or indirectly, for example by making misrepresentations or false

statements. Lawyers may not conceal anything that the court requires for the

administration of justice. The court should be able at all times to rely on their honesty and

on the veracity of their statements. There can be no effective administration of justice

without legal practitioners being scrupulously truthful in their dealings with one another

and the courts. If material facts are withheld from the court, this may lead to a decision

that the attorney or advocate involved is not a fit and proper person to practise law. An

attorney can be removed from the roll because he misled the court in a matter, which

meant that the court would never be able to trust him again.

This duty entails that he must assist the court in the administration of justice. What is

engraved at the heart of this duty is that the trial lawyer must only employ proper and

lawful ways to promote and protect the interests of their clients. The trial lawyer must not

deceive or knowingly or recklessly mislead the court. Trial lawyers must not knowingly

put forward or let their client put forward false information with the intention to mislead the

court. Also the defence lawyers must not show their agreement with information that the

prosecution puts forward which they know to be false. Trial lawyers have a duty to uphold

the interests of their clients without regard to any unpleasant consequences to

themselves or any other persons.

The legal practitioner can advice the client to do the right thing. If the clients accepts not

to cover up for the child, we can either go to trial or we can follow the procedure in terms

of section 105 of the Criminal Procedure Act 51 of 1977(hereinafter CPA) which provides

for a sentence agreement that is entered into by the accused and the state. The trial

lawyer will approach the representative of the state with the proposal that a sentence

agreement be entered into, and a suggestion as to what a just and proper sentence would

be having regard to all the relevant facts. He can suggest that the state representative

consider diversion accordance to Child Justice Act 75 of 2008(hereinafter CJA). If

diversion is not successful the CJA provides for child offenders to the tried and sentenced

in Child Justice Courts.

4. Conferences with prosecutors take place at their offices, not at the legal practitioners

office. Some disclosures simply cannot be made 'without prejudice'. Certain kinds of

knowledge just cannot be ignored or forgotten. Even an otherwise innocent statement

could lead to a whole new line of investigation or defence. A legal practitioner has to put

a guard in front of his or her mouth in these meetings. In such a conference the

investigating officer may have to be present to fulfil a role similar to that of the instructing

attorney. Three important rules follow from this namely treat the investigating officer with

the degree of courtesy and respect due to his or her office. A legal practitioner has to

remember that the investigating officer may be a witness in the trial and ensure that what

you say in his or her presence may be used against the accused. The legal practitioner

has to ensure that the discussion is 'off the record', without prejudice.

5. Section 165(2) of the Constitution provides that the courts are independent and subject

only to the Constitution and the law, which they must apply without fear, favour or

prejudice. The Judicial conduct for judges was adopted in terms of section 12 of the

Judicial Service Commission Act 9 of 1994. The Judicial Service Commission Act, 1994

(Act No 9 of 1994) (the Act), seeks to maintain and promote the independence of the

office of judge and judiciary as a whole, while at the same time acknowledging that it is

necessary to create an appropriate and effective balance between protecting the

independence and dignity of the judiciary when considering complaints about, and the

possible removal from office of, judges as defined in section 7(1)(g) of the Act, and the

overriding principles of openness, transparency and accountability that permeates the

Constitution and that are equally applicable to judicial institutions and officers.

A judge acts fearlessly and according to his or her conscience because a judge is only

accountable to the law. Judges do not pay any heed to political parties or pressure groups;

and perform all professional duties free from outside influence. Judges do not appear at

public hearings before, or otherwise consult with, an executive or legislative body or

official except on matters concerning the law, the legal system or the administration of

justice.Judicial independence is not a private right or a principle for the benefit of judges

as individuals. It denotes freedom of conscience for judges and non-interference in the

performance of their decision-making. It does not justify judicial misbehavior and does not

provide an excuse for failing to perform judicial functions with due diligence or for

otherwise acting contrary to these rules. A judge behaves in his or her professional and

private life in manner that enhances with public trust in or respect for the judiciary and the

judicial system. A judge avoids impropriety and the appearance of impropriety in all the

judge’s activities. A judge does not engage in conduct that is prejudicial to the effective

and expeditious administration of the business of the court.

Therefore, the judge comments in the set of facts violates the above code and it

undermines judicial independence as a judge behaves in his or her professional and

private life in manner that enhances with public trust.

6. The initial investigation is conducted by the police. They do so upon their own initiative

or as a result of a complaint received from the public. Or they may do so in consequence

of instructions received from the prosecuting authorities. The police prepare a docket

(file, dossier) for submission to the public prosecutor who takes the decision whether to

prosecute or not. The prosecutor, in the exercise of his discretion to prosecute, examines

the witnesses’ statements and documentary evidence contained in the docket, together

with such real evidence as might be available, for example, weapons, fingerprints and

clothing. At this stage the prosecutor may also direct and control the investigation by

giving specific instructions to the investigating officer, that is, the police official charged

with the investigation of the crime. The prosecutor may, for example, call for further

statements from potential State witnesses, or he may direct that certain scientific analyses

be done.

Assembling of the evidence in a criminal case will be done for the prosecutor by the

investigating officer, acting under the guidance of the prosecutor. Unlike civil cases,

criminal cases usually involve a number of court appearances. At each appearance the

prosecutor must have access to the docket in order to determine whether the investigation

has been completed to his or her satisfaction and whether the case is ready for trial. When

that stage has been reached the prosecutor must have a short meeting with the

investigating officer before fixing the trial date. There are some processes that are unique

to a criminal case and the guidance provided to the investigating officer during the

litigation phase which for a prosecutor starts at the first appearance must include:

• the need for and conduct of an identity parade (section 37(1) of the CPA);

• the need for taking the fingerprints, palmprints or footprints of the accused (section

37(1));

• the need to have blood or tissue samples taken (section 37(2));

• advice on any bail application, including suitable conditions for bail;

• the need for steps to be taken for the protection of any witness (under the Witness

Protection Act 112 of 1998);

• the need to ask that the hearing or part of it should be conducted in camera,

whether in terms of the Child Justice Act 75 of 2008 or any other Act (section 153

of the CPA);

• the need for evidence to be given through an intermediary (section 170A);

• the need for a prohibition against publication of certain information relating to the

proceedings (section 154); the need for a prohibition against publication of the

identity of persons towards or in connection with whom certain offences have been

committed (section 335A).

7. In Pineiro 1992 (1) SACR 577 (Nm) the court held that in the exercise of its discretion

to grant or refuse bail, the court does in principle address only one all-embracing issue:

Will the interests of justice be prejudiced if the accused is granted bail? And in this context

it must be borne in mind that if an accused is refused bail in circumstances where he will

stand his trial, the interests of justice are also prejudiced. Four subsidiary questions arise.

If released on bail, will the accused stand his trial? Will he interfere with State witnesses

or the police investigation? Will he commit further crimes Will his release be prejudicial to

the maintenance of law and order and the security of the state? At the same time the

court should determine whether any objection to release on bail cannot suitably be met

by appropriate conditions pertaining to release on bail. Section 60(4) of the CPA provides

that the refusal to grant bail and the detention of an accused in custody shall be in the

interests of justice where one or more of the following grounds are established:

• where there is the likelihood that the accused, if released on bail, will endanger the

safety of the public or any particular person or will commit a Schedule 1 offence;

or

• where there is the likelihood that the accused, if released on bail, will attempt to

evade his or her trial; or

• where there is the likelihood that the accused, if released on bail, will attempt to

influence or intimidate witnesses or to conceal or destroy evidence; or

• where there is the likelihood that the accused, if released on bail, will undermine

or jeopardise the objectives or the proper functioning of the criminal justice system,

including the bail system; or

• where in exceptional circumstances there is the likelihood that the release of the

accused will disturb the public order or undermine the public peace or security.

In the set of facts, the presiding officer has to consider whether the accused will stand

trial. In Letaoana 1997 (11) BCLR 1581 (W) the court held that in considering the

likelihood of the accused attempting to evade his trial if released on bail the court may,

where applicable, take into account the following factors:

• the emotional, family, community or occupational ties of the accused to the place

at which he is to be tried in terms of section 60(6)(a) of the CPA. In set of facts, the

presiding office has to take note that the accused is divorce and is not currently

living with his family and does not have custody to the children.

• the assets held by the accused and where such assets are situated—s 60(6)(b);

the means, and travel documents held by the accused, which may enable him or

her to leave the country in term of section 60(6)(c) of the CPA. In the set of facts,

the presiding office must consider that the accused has two passports and is the

South African and Namibian passport and he recently traveled to Namibia. The

accused claims that he presently has no financial resources,

• the extent, if any, to which the accused can afford to forfeit the amount of bail

which may be set—s 60(6)(d);

• the question whether the extradition of the accused could readily be effected

should he or she flee across the borders of the Republic in an attempt to evade his

or her trial—s 60(6)(e);

• the nature and the gravity of the charge on which the accused is to be tried—s

60(6) (f);

It has repeatedly been held that in assessing the risk of flight, courts may properly take

into account not only the strength of the case for the prosecution and the probability of a

conviction in Lulane 1976 (2) SA 204 (N) at 213C-F but also the seriousness of the

offence charged and the concomitant likelihood of a severe sentence according to Nichas

1977 (1) SA 257 (C) at 263. In Petersen 2008 (2) SACR 355 (C) a full bench noted that

the existence of the extradition arrangements between South Africa and Namibia

provided no guarantee that extradition would indeed take place if the appellant were to

‘relocate for the purpose of evading justice’. This reality rendered meaningless the

undertaking of the appellant’s Namibian family that they would not have permitted her to

become a fugitive from justice.

Conditions

The court may make the release of an accused on bail subject to conditions which, in the

court’s opinion, are in the interests of justice in terms section 60(12). In the set of facts,

the following bail condition has to be considered that is the accused must report to a

specified police station once or twice a day, or that he must hand his two passport over

to the police, or that he may not leave a specified magisterial district without informing the

police official charged with the investigation of the case.

Bibliography

Books

Marnewick CG Litigation Skills of South African Lawyers 3rd ed (Lexis Nexis 2012)

Stephen P et al Civil Procedure: A Practical Guide (Oxford University Press Southern

Africa Cape Town 2013).

Case Law

Letaoana 1997 (11) BCLR 1581 (W)

Lulane 1976 (2) SA 204 (N) at 213C-F

Petersen 2008 (2) SACR 355 (C)

Legislation

Criminal Procedure Act No. 51 of 1977

Legal Practice Act, No 28 of 2014

Judicial Service Commission Act, 1994