TLI4801 Portfolio EXAM 2023

QUESTION 1: CIVIL PRACTICE [50] 1.1 Ms. Sue Zim, a businesswoman, has purchased goods on credit to the value of R 500,000 from WoodPeckers (Pty) Ltd. The goods are delivered by WoodPeckers (Pty) Ltd to Ms. Zim, and a copy of the invoice is handed to Ms Zim. Despite requests by WoodPeckers (Pty) Ltd, Ms Zim does not pay or settle the amount. WoodPeckers (Pty) Ltd wants to sue Ms. Zim for the outstanding amount. The company’s director approaches you for legal advice or assistance regarding the proceedings to be instituted against Ms. Zim. 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 will be used to institute WoodPeckers (Pty) Ltd’s claim. (4) (b) 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 the plaintiff in response to the defendant’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) WoodPeckers (Pty) Ltd requests your advice about a suitable ADR (alternative dispute resolution) mechanism that may be used to resolve the dispute with Ms. Zim expeditiously. Discuss briefly whether arbitration or negotiation is the most suitable ADR mechanism having regard to the given facts and advise WoodPeckers (Pty) Ltd 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. QUESTION 2: CRIMINAL PRACTICE [50] You are a successful lawyer specializing in criminal litigation. While enjoying your morning coffee in your office you read an article in the newspaper about the local library that was destroyed in a fire the previous night. No lives were lost in the fire, but the beautiful historical building and irreplaceable documents were destroyed. The State has therefore suffered extensive pecuniary loss as a result of the fire. The incident occurred on 29 May 2023 near Durbanville Hills, Durbanville in the Regional Division of the Western Cape. The next minute there is a knock on your door. A potential client, Mr Brutal Burndown, enters your office and consults you in a very distressed state. Mr Burndown conveys to you that he is charged with arson but that he is not guilty. The evidence against Mr Burndown, however, is that he was seen by two witnesses loitering near the library before it caught alight. Mr Burndown vehemently denies that he committed the act of arson or that he acted unlawfully and intentionally. He instructs you to tender a plea of not guilty on his behalf. Answer all the following questions. 1.1 Discuss whether you, as an attorney, can fabricate a defence for Mr. Burndown. (4) 1.2 Critically discuss the discretionary role of the court to grant a section 174 discharge. Motivate your answer by reference to relevant case law. (10) 1.3 Discuss the different techniques that trial lawyers may use in order to improve the retention of key information presented at the trial. (12) 1.4 Discuss the implications of not preparing/drafting a not guilty plea/statement in terms of the Criminal Procedure Act 51 of 1977 as instructed by Mr Burndown. (4) 1.5 Draft Mr Burndown’s plea of not guilty in terms of the Criminal Procedure Act 51 of 1977. (10) 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. (40) 2. Three suspects, A, B and C, are arrested and charged with human trafficking, kidnapping, abduction and rape after the police have uncovered a sex trafficking syndicate in Johannesburg. You represent B at the trial. B informs you that he was initially approached by one of his co-accused, C, with an elaborate plan to kidnap young children and prostitute them for money. All the accused engaged in this conduct well-knowing that their actions were unlawful and constituted the crimes of human trafficking, kidnapping, abduction and rape. B acknowledges that, even though he committed some of these acts, he was merely acting on the instructions of C. B is prepared to provide testimony on behalf of the State against A and C. B requires a legal opinion from you on whether he can proceed with providing evidence on behalf of the State in terms of section 204 of the Criminal Procedure Act 51 of 1977 and the implications of doing so. Provide a legal opinion to B in which you explain to him whether he can proceed with providing evidence on behalf of the State in terms of section 204, the implications of doing so as well as the purpose of section 204. You must refer to relevant case law and academic literature in your answer. (10) [50] TOTAL: [100]