TLI4801 PORTFOLIO (DETAILED ANSWERS) MAY JUNE 2024 - DISTINCTION GUARANTEED

TLI4801 PORTFOLIO (DETAILED ANSWERS) MAY JUNE 2024 - DISTINCTION GUARANTEED Answers, guidelines, workings and references .......... QUESTION 1: CIVIL PRACTICE [50] 1.1 Darren Smith is the director and shareholder of DSA Equipment (Pty) Ltd (“DSA”) and the company manufactures medica electronic equipment. Mr. Smith approached EBA (Pty) Ltd (“EBA”), the local supplier of the components needed for the manufacturing of the electronic equipment by DSA, and the parties entered into a written agreement for the supply and delivery of the components on 30-day credit terms. The goods are delivered by EBA to DSA’s premises and a copy of the invoice to the value of R1,5 million is handed to Mr. Smith who was present to receive them. Despite numerous calls followed by a formal letter of demand addressed to DSA for payment of the outstanding amount following the expiry of the 30-day period, EBA does not receive any formal response from DSA and/or Mr. Smith. EBA (Pty) Ltd now wants to institute legal proceedings to recover the outstanding amount. EBA’s director approaches you for legal advice or assistance regarding the proceedings that can be instituted for the recovery of the outstanding amount from DSA. 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 must be used to institute EBA’s claim. (4) (b) Assuming that DSA opposes EBA’s claim, 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 EBA in response to DSA’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) The written agreement between EBA and DSA also provides for an alternative dispute resolution mechanism that may be used to resolve disputes between the parties. EBA now requests your advice about a suitable ADR (alternative dispute resolution) mechanism that may be used to resolve the dispute with DSA expeditiously as opposed to instituting court proceedings. Discuss briefly whether arbitration or negotiation is the most suitable ADR mechanism having regard to the given facts and advise EBA 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] TLI4801/202/1/2024 7 QUESTION 2: CRIMINAL PRACTICE [50] 1. Your name is Audacious Funk Attorney. You are drafting a section 105 agreement for your client, Fraudy Jack, who is arrested on a charge of theft. 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 the requirements for a charge in terms of the Criminal Procedure Act 51 of 1977 and draft the above charge. (8) (b) What does section 105A of the Criminal Procedure Act 51 of 1977 address? Discuss. (5) (c) Name 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. (5) (23) 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. 2. Distinguish between memoranda and minutes written by the prosecutor and those written by legal practitioners. (6) 3. Critically discuss the procedure relating to the assembling of evidence in a criminal trial. (6) 4. Brainy Account is a Chartered Accountant (CA) and a registered Auditor with MCK Auditors. Brainy Account was recently arrested for having accepted kickbacks in the form of bribes to the value of R4 million (R4 000 000) in the form of cash and other benefits to falsify audit outcomes. The state also alleges that Brainy Account failed to report criminal conduct by HRC Bank, and this enabled the bank to hide the losses it has suffered in the amount of R650 million (R) due to theft and fraud. At a formal bail inquiry for the accused, the following information was produced in court: • There are several investigations taking place at the same time involving other accused with respect to the fraud and theft that has occurred in HRC bank, and it will take at least two years for these investigations to be completed or finalised; • The nature of the fraud is extensive – possibly amounting to more than R650 million (R). There are currently efforts to have the funds recovered by the Asset Forfeiture Unit (AFU) but there has not been any success yet in the recovery process; • The accused had already been subjected to an internal disciplinary inquiry by both his employer, MCK Auditors, and the regulatory body for Accountants. He has already been dismissed by his employer, and he has been suspended for a period of fifteen years from practising as an Auditor or using the designation of CA by the Accounting regulatory body. The above actions occurred 6 months prior to his arrest; TLI4801/202/1/2024 8 • The accused was also involved in divorce proceedings recently and this has resulted in his wife being awarded full custody of their minor children as well as their common home. The accused has since been staying with his mistress who decided to throw him out following the dismissal by his employer. He now stays intermittently with various friends. He recently visited his parents in Windhoek, Namibia for three weeks prior to his arrest, and it appeared during the bail hearing that he usually uses his Namibian passport to travel outside the country despite also having a South African passport; • The accused claims that he presently has no financial resources, although he owns shares in a company that owns a professional football team. The remaining shareholders have offered to purchase the accused’s shares. However, it is not known what the value of the shares is or how long it will take for the transaction to be completed for him to have access to cash resources or whether the cash or the shares themselves will also be subject to forfeiture by the AFU. Having regard to the above facts, advise the presiding judicial officer as to the relevant factors that he should consider when considering the accused’s request for release on bail and, if so, the conditions attached thereto. Also refer to relevant case law in your answer. (15) [50]