TLI4801 SUPPLEMENTARY PORTFOLIO MEMO 2022 JANUARY/FEBRUARY

PORTFOLIO MEMO WITH DETAILED FOOTNOTES AND BIBLIOGRAPHY. THE JANUARY/FEBRUARY 2022 QUESTION PAPER: QUESTION 1: CIVIL PRACTICE 1. On the morning of 2nd January 2022, a cyclist, Mrs Alanna Smit, who is a member of a local hiking club “Easy Walkers”, is walking on a public road in Johannesburg. Suddenly, she is struck from behind by a speeding taxi driven by Joe Soap, with registration number TN565GP. The accident takes place on Long Street, Johannesburg. Mrs Smit is injured as a result of the accident and her bicycle is damaged. Mrs Smit sustains the following injuries: a broken right leg, a broken pelvis, a deep cut below her right eye resulting in permanent facial scarring, bruises and abrasions to the right-hand side of her body. Her doctors advise her that she will not be able to resume cycling as a sport as a result of her injuries. Her injuries and damages amount to R 750 000,00. Mrs Smit wants to institute a claim against Joe Soap. She 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 whether Mrs Smit should use a provisional sentence summons or a combined summons to institute her claim or action. (4) (b) Discuss the pleading that will be annexed to the summons to support Mrs Smit’s claim or action. (4) (c) Define the term “facta probanda”. (4) (d) Draft that section of the pleading (referred to in 1 (b) above) that sets out Mrs Smit’s facta probanda only. (10) (e) It transpires that Mrs Smit’s pleading has not been signed by her legal representative. Describe the procedure that can be used by Mr Joe Soap’s legal representative to address this oversight. (6) (28) 2. Critically discuss how an inadequate pleading can be rectified. (4) 3. Discuss the use of vocational training in practice. (6) 4. Distinguish between a counterclaim and an interpleader claim by way of examples. (6) 5. Discuss how one can address the following mistakes in negotiation: 5.1 failing to plan a concession 5.2 no attention to detail 5.3 employing an inflexible approach to the case (6) (22) [50] QUESTION 2: CRIMINAL PRACTICE 1. Your name is Cleverson Attorney. You are drafting a section 105 agreement for your client, Violent Michaels, who is arrested on a charge of assault with the intention to do grievous bodily harm (GBH). 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 of1977 address? Discuss. (5) (c) Which parties form part of the section 105A process? Name them. (5) (d) Briefly discuss the sentencing agreement in terms of section 105A of the Criminal Procedure Act, 51 of 1977. (4) (22) 2. Discuss the role of the prosecutor in the administration of justice. Refer to relevant case law in your answer. (8) 3. Johnny “Bulldog” is an attorney representing his client X in a rape trial. X has pleaded not guilty. An interpreter, Z is used during the trial. The interpreter is not briefed in advance about the trial. During the course of the cross-examination of a state witness Y, Johnny continuously interrupts the interpreter, demands that he speak up, and blames the interpreter for inaccurate and incorrect interpretation by the witness. The interpreter Z breaks down in tears as a result of the sustained attack and the witness also shows impatience and tiredness with the cross-examination process. The presiding officer calls for a short recess to give the witness and interpreter time to compose themselves. Critically discuss the duty of trial lawyers towards witnesses and interpreters, and whether Johnny’s conduct conforms to general standards of professional conduct expected of trial lawyers. (10) 4. In terms of section 60(11) of the Criminal Procedure Act 51 of 1977, the accused is required to “adduce evidence” in support of his or her bail application. Discuss the bail application in respect of the above provision. (10) (28) [50] TOTAL:[100]