Exam (elaborations) TLI4801 PORTFOLIO MEMO (DETAILED MEMO) OCTOBER 2021 DETAILED ANSWERS- UNISA 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) What is the aim of exchanging pleasantries with a potential client? (4) (b) Discuss the purpose of maintaining a chronological account of facts when interviewing a client. (6) [10] 2. On 2nd April 2021, Mrs A Smith was driving her car, a Honda with registration number TN565GP along Long Street, Johannesburg. Her husband Mr Smith was seated in the passenger seat and her two children were seated in the back seats. They all had their seat belts. As Mrs Smith approached the intersection of Green Street, the lights turned green in her favour, and she drove through the intersection. A car driven by Mr Joe Soap approached from the right and collided with Mrs Smith’s vehicle. Mrs Smith and her family have all sustained personal injuries and her car was also damaged as a result of the collision. Mrs Smith approaches you for legal advice. Answer the following questions, using proper references. (a) Briefly discuss what the case is about in an introductory paragraph. (3) (b) Who bears the onus of proof in civil cases and what is the standard of proof? (3) (c) What is the cause of action in Mrs Smith’s case? Substantiate your answer. (3) (d) Draft how the parties will be cited in the pleading which is attached to the summons. (4) (e) Mr Soap blames Mrs Smith for the collision and he denies any liability. He instructs his attorney to institute an action against Mrs Smith to recover damages to his car and personal injuries sustained by him in the accident. Draft the pleading that Mr Soap will use to recover his damages and injuries. (10) [23] 3. Critically discuss whether “doing nothing” is an effective ADR strategy. (5) 4. Discuss the role of the Legal Practice Council in the legal profession. (6) 5. Discuss the advantages and disadvantages of advising a “lay” client by letter. (3) 6. Explain what you understand by the term “double-dating” in practice. (3) [50] QUESTION 2: CRIMINAL PRACTICE 1. A judicial officer decides to befriend an attorney on Facebook. Discuss the impact of the judicial officer’s decision. You must also refer to relevant case law in your answer. (10) 2. Critically discuss this statement: “A party is not permitted to cross-examine their own witness unless the witness is declared as uncooperative”. You must also refer to relevant case law in your answer. (10) 3. The accused instructs you as his Attorney that he “is guilty of killing the deceased”. Discuss your approach in drafting a plea in terms of: (a) section 112(2) of the Criminal Procedure Act 51 of 1977 (7) (b) sections 115 and 220 of the Criminal Procedure Act 51 of 1977 (8) (15) 4. Three Suspects Ace Mbiza, Chance Cloete and Franky Knoetze, who are former executives of BDSM Mutual Bank, are arrested and brought to court to face charges for fraud, theft and bribery. This follows the disappearance of an amount of R 500 million Rands from the BDSM accounts. The amount represents the deposits made by BDSM clients. You represent Mr Franky Knoetze, the former Chief Financial Officer of the Bank. Your client informs you that he was initially approached by one of the co-accused Mr Ace Mbiza, the former CEO of BDSM Bank to move clients’ deposits from BDSM accounts and use it to pay third parties employed by various government departments. This was done in exchange for cash payments to the third parties to encourage these entities to deposit money with BDSM Mutual Bank. All the accused including Ace Mbiza and Franky Knoetze undertook these actions well- knowing that their actions were unlawful and that their actions constituted criminal conducts of fraud, theft and bribery. Mr Knoetze acknowledges that even though some of the funds were deposited into his own personal account, he was merely acting on the instructions of Mr Mbiza. However, Mr Knoetze is prepared to provide testimony on behalf of the state against the accused Ace Mbiza and Chance Cloete. Mr Knoetze consults with you for legal advice. As Mr Knoetze’s attorney, advise him whether he can provide evidence on behalf of the state in terms of section 204 of the Criminal Procedure Act, 1977 and the implications of doing so. In your answer, you must also refer to relevant case law and academic literature. (10) 5. 4. Mr Professional, a legal practitioner, is using an interpreter during an interview with a witness in a criminal matter. Discuss the protocols that Mr Professional must observe in relation to the interpreter during the interview process with the witness. (5) [50]