LEV3701
LAW OF EVIDENCE
PORTFOLIO
MEMO/GUIDELINE
OCTOBER/
NOVEMBER
UNISA
OCTOBER 2022
,Question 1
What must the court in a civil case do if a legal question about the cross-
examination of a witness arises and there is no express provision in any South
African legislation on the specific issue? Fully explain with reference to a
definition. [5]
Cross-examination
▫ After witness gave evidence-in-chief he may be cross-examined by his opponent ▫
When persons tried jointly – Practice is for defence witness to be cross-examined 1st
by co-accuser’s legal representative & then by prosecution.
▫ Purpose of cross examination is… Elicit evidence supporting the cross examiners
case Cast doubt upon the credibility of the opposing party’s witness.
▫ Leading questions may also be asked but previous convictions and character are
beyond scope.
▫ Witness may be asked leading q’s during cross-exam.
▫ Q’s asked during CE must be relevant either to issue / credibility of the witness.
Question 2
Lucky is on trial for the murder of his wife. The prosecution claims that Lucky
committed the murder by poisoning his wife with arsenic. Lucky’s defence is that
his wife committed suicide. Innocent, an attorney, is called by the prosecution to
testify that the accused approached him in his professional capacity for legal
advice and, during their discussions, admitted to having killed his wife. Innocent
subsequently declined to represent Lucky. The prosecution states that this
evidence will be admissible because Lucky had told Innocent of a crime that had
already been completed. Do you agree? Fully discuss with reference to the
requirements for the admissibility of this type of evidence. [10]
, This could amount to Professional privilege At common law all communications
between legal advisor and his client are protected from disclosure by this privilege,
subject to certain requirements. The privilege applies to both criminal and civil matters.
The privilege belongs to the client and involves 2 things: 1. The client can refuse to
answer any question which requires him to disclose any of the information he has
shared with his legal advisor and 2. The client can prevent the legal advisor from
disclosing any such information. S201: restricts the scope of privilege to a greater
extent than common law does, but doesn’t replace the common law. The act repeats
that without consent of the accused, a legal advisor can’t give evidence on what is
discussed between them in connection with the case. It’s to improve the effectiveness
of legal representation. Legal advisors can only properly fulfil their function if their
clients can discuss every aspect of their case in confidence and without fear that their
advisors may be compelled to disclose what was said in evidence against them.
Requirements: 1. The legal advisor must act in a professional capacity – privilege
doesn’t apply if he was just giving advice to a friend 2. The communication must be
made in confidence – 3. The communication must be aimed at getting legal advice –
lawyer hears a confession from client during consultation = privileged – lawyer hears
confession during an interview with a witness = not privileged 4. The communication
mustn’t have been made with the intention of furthering a crime.
Question 3
B and D belong to rival gangs. One night a fight breaks out between the gangs
and a passing motorist, C, is shot and injured. C lays a charge of attempted
murder, and during the investigation, C gives a description of his assailants to
the police. An identification parade is held, and B and D are picked from the line-
up. B and D are thereafter charged. Answer the following questions with
reference to the trial:
3.1 Two bullets are extracted from C at the hospital and, when B and D are
arrested, the investigating officer finds a weapon in the possession of both B and
LAW OF EVIDENCE
PORTFOLIO
MEMO/GUIDELINE
OCTOBER/
NOVEMBER
UNISA
OCTOBER 2022
,Question 1
What must the court in a civil case do if a legal question about the cross-
examination of a witness arises and there is no express provision in any South
African legislation on the specific issue? Fully explain with reference to a
definition. [5]
Cross-examination
▫ After witness gave evidence-in-chief he may be cross-examined by his opponent ▫
When persons tried jointly – Practice is for defence witness to be cross-examined 1st
by co-accuser’s legal representative & then by prosecution.
▫ Purpose of cross examination is… Elicit evidence supporting the cross examiners
case Cast doubt upon the credibility of the opposing party’s witness.
▫ Leading questions may also be asked but previous convictions and character are
beyond scope.
▫ Witness may be asked leading q’s during cross-exam.
▫ Q’s asked during CE must be relevant either to issue / credibility of the witness.
Question 2
Lucky is on trial for the murder of his wife. The prosecution claims that Lucky
committed the murder by poisoning his wife with arsenic. Lucky’s defence is that
his wife committed suicide. Innocent, an attorney, is called by the prosecution to
testify that the accused approached him in his professional capacity for legal
advice and, during their discussions, admitted to having killed his wife. Innocent
subsequently declined to represent Lucky. The prosecution states that this
evidence will be admissible because Lucky had told Innocent of a crime that had
already been completed. Do you agree? Fully discuss with reference to the
requirements for the admissibility of this type of evidence. [10]
, This could amount to Professional privilege At common law all communications
between legal advisor and his client are protected from disclosure by this privilege,
subject to certain requirements. The privilege applies to both criminal and civil matters.
The privilege belongs to the client and involves 2 things: 1. The client can refuse to
answer any question which requires him to disclose any of the information he has
shared with his legal advisor and 2. The client can prevent the legal advisor from
disclosing any such information. S201: restricts the scope of privilege to a greater
extent than common law does, but doesn’t replace the common law. The act repeats
that without consent of the accused, a legal advisor can’t give evidence on what is
discussed between them in connection with the case. It’s to improve the effectiveness
of legal representation. Legal advisors can only properly fulfil their function if their
clients can discuss every aspect of their case in confidence and without fear that their
advisors may be compelled to disclose what was said in evidence against them.
Requirements: 1. The legal advisor must act in a professional capacity – privilege
doesn’t apply if he was just giving advice to a friend 2. The communication must be
made in confidence – 3. The communication must be aimed at getting legal advice –
lawyer hears a confession from client during consultation = privileged – lawyer hears
confession during an interview with a witness = not privileged 4. The communication
mustn’t have been made with the intention of furthering a crime.
Question 3
B and D belong to rival gangs. One night a fight breaks out between the gangs
and a passing motorist, C, is shot and injured. C lays a charge of attempted
murder, and during the investigation, C gives a description of his assailants to
the police. An identification parade is held, and B and D are picked from the line-
up. B and D are thereafter charged. Answer the following questions with
reference to the trial:
3.1 Two bullets are extracted from C at the hospital and, when B and D are
arrested, the investigating officer finds a weapon in the possession of both B and
