TLI4801 PORTFOLIO ECP STUDENTS 2021 SUPER SEMESTER

QUESTION 1: CIVIL PRACTICE 1. A client arrives at your office. You notice that she is using crutches and her right leg is in a cast. She informs you that she has been involved in a motor collision. Her leg was broken and she sustained bruises on her face and body as a result of the accident. Her car has also been damaged. There is a problem with her insurance. She has no income. Answer the following questions: (a) Critically discuss the purpose of your interview with the potential client. (6) (b) What is the aim or purpose of exchanging pleasantries with a potential client? (4) (10) 2. On the morning of 2nd July 2021, Mr Ralph Adams, an athlete, is walking on a public road in Johannesburg, when he is struck from behind by a speeding taxi driven by Dave Mhkize, with registration number TN565GP. The accident takes place on Smal Street, Johannesburg. Mr Adams is injured as a result of the accident. Mr Adams sustains the following injuries: a broken right leg, a broken pelvis, a deep cut below his right eye resulting in permanent facial scarring, bruises and abrasions to the right-hand side of his body. His doctors advise him that he will not be able to resume his athletic training as a result of his injuries. His injuries amount to R 750 000,00. Mr Adams wants to institute a claim against Dave Mhkize. He approaches you for legal advice. 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 type of summons Mr Adams will use to institute his claim or action. (4) (b) Draft how the defendant/s will be cited in the pleading attached to the summons. (4) (c) Defineanddiscusstheterm“factaprobanda”. (3) (d) Draft that section of the pleading (referred to in 1 (b) above) that sets out Mr Adams’s “facta probanda” only. (8) (e) Critically discuss whether mediation can be used as an appropriate ADR strategy by Mr Adams? (5) (24) TLI4801/202/1/2021 5 3. Distinguish between the terms “advocacy” and “opinion”. (6) 4. Critically discuss the different categories of “legal practitioners” in practice. (6) 5. Wise Attorney is representing the plaintiff in a divorce matter. Wise Attorney has been requested by the couple (plaintiff and defendant) to settle their divorce action and draft a settlement action for both parties. Discuss whether it is ethical for the plaintiff’s attorney, Wise Attorney to draft the settlement agreement for both parties. (4) [50] QUESTION 2: CRIMINAL PRACTICE 1. Distinguish between memoranda and minutes written by the prosecutor and those written by legal practitioners. (6) 2. Your client, Jon Tate, who is arrested on a charge of rape, advises you that he is not guilty. The evidence against your client is that he sexually assaulted the victim, Betty Mayer. The incident took place on 12 December 2020 in Mamelodi West, Pretoria in the Regional Division of North Gauteng. The complainant/victim was emotionally traumatized as a result of the incident. However, your client denies that he committed the rape. He informs you that the sexual encounter was consensual. Therefore, he instructs you, his attorney, to tender a plea of not guilty on his behalf. (a) Critically discuss the type of information a defence attorney should avoid when drafting his client’s plea explanation? (3) (b) Draft that aspect of your client’s plea in terms of the Criminal Procedure Act 51 of 1977, that only sets out your client’s plea explanation and his section 220 admissions? (5) [8] Note: You may make up your own facts to supplement the afore-mentioned given facts without detracting from the core issues. 3. A client informs his legal practitioner that his teenage son is responsible for driving the family car into the neighbour’s wall and damaging it, whilst intoxicated. However, the client is adamant that he will accept responsibility for his son’s actions because he does not want his teenage son to have a criminal record. Discuss the advice the legal practitioner will furnish or give to his client. (5) 4. Able Johnson, a defence attorney arrives at the prosecutor’s office to attend a conference. His client, X, a prominent politician has been charged with rape. The investigating officer is not invited to the conference by the parties. Able Johnson makes disclosures “without prejudice” and misleading statements at the conference. Discuss the rules of etiquette regarding the relationships involving defence attorneys, prosecutors, and investigating officers. (7) TLI4801/202/1/2021 6 5. A judicial officer makes some comments in the public domain which are seen to be political, espousing religious views, indicating bias and contradicting the government’s political stance or views. Critically discuss whether the judicial officer’s comments or conduct violates the Judicial Code of Conduct and undermines the judicial independence of courts. (8) 6. Critically discuss the procedure relating to the assembling of evidence in a criminal trial. (6) 7. Account Mensa is a Chartered Accountant (CA) and a registered Auditor with PKM Auditors. Account Mensa was recently arrested for having accepted kickbacks in the form of bribes to the value of R35 million Rands (R) in the form of cash and other benefits to falsify audit outcomes. The state also alleges that Account Mensa failed to report criminal conduct by GBV Bank, and this enabled the bank to hide the losses it has suffered in the amount of R450 million Rands (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 GBV 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 the R450 million Rands (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, PKM 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; • 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 entertaining the accused’s request for release on bail and, if so, the conditions attached thereto. Also refer to relevant case law in your answer. (10) [50]