LAW OF EVIDENCE
LEV3701
ASSIGNMENT 1
YEAR 2021
, QUESTION 1
The privilege against self-incrimination is manifested in various rights which are
contained in the Bill of Rights, including the rights of an arrested person to remain
silent (s 35(1)(a)), or not to be compelled to make any confession or admission
that could be used in evidence against that person (section 35(1)(c)), and the right
of an accused person to be presumed innocent, and not to testify at trial (section
35(3)(h)). The court in stated that not only did the record of the bail proceedings
form part of the subsequent trial record, but any evidence which the accused
elected to give at the bail hearing was admissible against him or her at the trial,
provided that the court which heard the bail application had warned the accused
of the risk of making such statements. The court accepted that the testimony at
the bail application may cause prejudice to the accused later on, if it were
incriminating for the purposes of the trial. That it may be a hard choice does not
affect the question, as long as the choice remained that of the accused, and that it
was made with a proper appreciation of what it entailed. An uninformed choice is
no choice. While the statement in the question is stated in the negative, the court
in Dlamini1 came to the same conclusion, but stated the decision in positive
terms, namely that (self-incriminating) evidence will be admissible if the accused
was “properly advised” or warned by the judicial officer of the consequences of
testifying (namely that such testimony could be used against the witness).
If Mr Shakes was properly advised of the consequences of testifying, such
evidence will be admissible in the main trial
QUESTION 2
Before legal professional privilege will apply, the following requirements must be
met:
The legal adviser must act in a professional capacity
This is a question of fact and a strong indication would be the payment of a fee,
although the absence of such would not necessarily be conclusive evidence of the
opposite. The grounds for following the approach of the English courts were set
out in Mohamed v President of the Republic of South Africa 2001 2 SA 1145 (C) in
LEV3701
ASSIGNMENT 1
YEAR 2021
, QUESTION 1
The privilege against self-incrimination is manifested in various rights which are
contained in the Bill of Rights, including the rights of an arrested person to remain
silent (s 35(1)(a)), or not to be compelled to make any confession or admission
that could be used in evidence against that person (section 35(1)(c)), and the right
of an accused person to be presumed innocent, and not to testify at trial (section
35(3)(h)). The court in stated that not only did the record of the bail proceedings
form part of the subsequent trial record, but any evidence which the accused
elected to give at the bail hearing was admissible against him or her at the trial,
provided that the court which heard the bail application had warned the accused
of the risk of making such statements. The court accepted that the testimony at
the bail application may cause prejudice to the accused later on, if it were
incriminating for the purposes of the trial. That it may be a hard choice does not
affect the question, as long as the choice remained that of the accused, and that it
was made with a proper appreciation of what it entailed. An uninformed choice is
no choice. While the statement in the question is stated in the negative, the court
in Dlamini1 came to the same conclusion, but stated the decision in positive
terms, namely that (self-incriminating) evidence will be admissible if the accused
was “properly advised” or warned by the judicial officer of the consequences of
testifying (namely that such testimony could be used against the witness).
If Mr Shakes was properly advised of the consequences of testifying, such
evidence will be admissible in the main trial
QUESTION 2
Before legal professional privilege will apply, the following requirements must be
met:
The legal adviser must act in a professional capacity
This is a question of fact and a strong indication would be the payment of a fee,
although the absence of such would not necessarily be conclusive evidence of the
opposite. The grounds for following the approach of the English courts were set
out in Mohamed v President of the Republic of South Africa 2001 2 SA 1145 (C) in
