TLI4801 October November Portfolio (COMPLETE ANSWERS) Semester 2 2025 - DUE 28 October 2025

QUESTION 1: CIVIL PRACTICE [50] Question 1.1 Mrs. N Slipper and her family decide to drive to Durban for the weekend to celebrate her 60th birthday. On 22 August 2025 they arrive at the Slip and Shiny Hotel (Pty) Ltd, situated on the Durban beachfront with stunning views of the Indian Ocean and with direct access to the beach from the main lobby of the hotel. The lobby floor is polished in a natural blue limestone, known for its beauty and slickness when wet. On the morning of 23 August 2025 at 08h00am the family, comprising of Mrs. Slipper, her husband and their 2 grandchildren, decide to have breakfast at the hotel lobby and to immediately head to the beach for an early swim after breakfast. After breakfast, the family head to the beach. As Mrs. Slipper walked from the main entrance towards the exit door leading to the beach, her feet slipped out from under her, and she fell hard onto her right side. She immediately felt a sharp pain in her right hip and was unable to get up. The cause of her slip was a clear, odourless liquid that was on the floor where she fell. The liquid was identified as spilled bottled water. One of the guests who checked-in approximately 20 minutes earlier had a water bottle on top of his luggage that was not tightly closed. Some of the water spilled onto the floor. The spill was not identified by the staff despite the hotel’s clear policy requiring cleaning staff to “continuously patrol” the lobby area to identify hazards on the floor. As a result of the fall, Mrs. Slipper suffered a fractured right hip and required emergency surgery. She was hospitalised for five days and then transferred to a rehabilitation facility for three weeks. Now she is home but requires a walker. Her recovery is progressing more slowly than expected due to her age and pre-existing arthritis. Her orthopaedic surgeon states she will likely have permanent reduced mobility and will develop post-traumatic arthritis in the joint. Her medical expenses to date amount to R350 000,00 (surgery, hospital stay, and rehabilitation) and her future medical expenses (physical therapy and potential future surgery) are estimated at R75 000,00. Mrs. Slipper blames the hotel’s negligent conduct for her fall, her resulting injuries and the pain and suffering she has endured. She now approaches you for advice on instituting legal action against the hotel. 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 that Jock Builders will use to recover the outstanding amount. (4) (b) Draft the summons chosen in 1(a) above. (10) (c) The owner of Jock Builders requests your advice regards a suitable ADR (alternative dispute resolution) mechanism to resolve the dispute with Mr Peters expeditiously. Discuss briefly whether arbitration or negotiation is the most suitable ADR mechanism having regard to the given facts and advise Jock Builders accordingly. (10) (24) 2. Answer the following questions: 2.1 Discuss what you understand by the term “heads of argument”. (3) 2.2 Critically discuss how an attorney/advocate may deal with the issue of submitting heads of argument late in court. (5) [8] 3. Ms Novice Stevens, a defence attorney, commences her first trial in court A at the Randburg magistrate’s court. During the course of the trial, she continuously uses statements like “Please bear with me, your worship” and “please overlook my mistakes, I am new at this!” when addressing the presiding officer. Critically discuss the impact TLI4801/202/2/2025 7 of the above statements on the defendant’s attorney’s performance and confidence in court. (5) 4. It is common practice nowadays for attorneys to use emails and text messages to advise their clients. Discuss the use of such emails and text messages by attorneys in practice. (3) 5. Critically discuss the role and liability of the Legal Practitioner’s Fidelity Fund in addressing pecuniary loss suffered by clients as a result of the actions of their legal practitioners. You must refer to relevant legislation in your answer. (10) [50] 8 QUESTION 2: CRIMINAL PRACTICE 1. Discuss whether an attorney can fabricate a defence for his/her client. (4) 2. Your client, Violent Mashaya, who is arrested on a charge of arson, advises you that he is not guilty. The evidence against your client is that he was seen loitering near the Essen Warehouse property before it caught alight. The incident took place on the 12 May 2020 near Mamelodi West, Pretoria in the Regional Division of North Gauteng. Although no one was injured in the fire, the owner of Essen Warehouse has suffered extensive pecuniary loss/damage as result of the fire to his property. Your client denies that he committed the act of arson or that he acted unlawfully and intentionally. Therefore, he instructs you, his attorney, to tender a plea of not guilty on his behalf. Answer the following questions: 2.1 Discuss the implications of not preparing/drafting a not guilty plea/statement in terms of the Criminal Procedure Act 51 of 1977. (4) 2.2 Draft your client’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/create facts to supplement the given facts of the case in so far as your own rendition does not detract from the core issues. [14] 3. Critically discuss the discretionary role of the court to grant a section 174 discharge. Motivate your answer by reference to relevant case law. (10) 4. Three Suspects Ace Mbiza, Chance Cloete and Finance Knoetze, former executives of BDSM Mutual Bank are arrested and brought to court to face charges for fraud, theft and bribery following the disappearance of an amount of R 600 million Rands from the BDSM accounts. The amount represents the deposits made by BDSM clients. You represent Mr. Finance Knoetze, the former Chief Financial Officer of the Bank. He informs you that he was initially approached by one of the co-accused Mr Ace Mbiza , the former CEO of BDSM Bank with this elaborate plan to move clients’ deposits from BDSM accounts and use it to pay third parties employed by various government agencies. 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 Finance 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 TLI4801/202/2/2025 9 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 instructs you as his attorney to advise him on whether he can proceed with providing evidence on behalf of the state in terms of section 204 of the Criminal Procedure Act, 1977 and the implications of doing so. Having regard to the above facts, discuss the purpose of section 204 of the Criminal Procedure Act, 1977 and advise Mr Knoetze about the implications of him providing/tendering evidence on behalf of the state. In your answer, you must refer to relevant case law and academic literature. (10) 5. Discuss the different techniques that trial lawyers may use in order to improve the retention of key information presented at the trial. PLEASE COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN ANSWERING THE EXAMINATION (NON-VENUE- BASED EXAMINATION). 2.1 Due date for examination: 28 October 2025 Unique number: 642794 Submission period: 23 October – 28 October 2025 ATTENTION ALL STUDENTS: The myModules system will open for submission of your answers on 23 October 2025 at 08:00 am (in the morning), and it will close on 28 October 2025 at 23:00 (in the evening). You may submit your portfolio assessment answers at any time between these times, and you may only submit during this period. AT THE EXPIRY OF THIS PERIOD, THE SYSTEM WILL CLOSE, AND YOU WILL NO LONGER BE ABLE TO SUBMIT YOUR ANSWERS. NO LATE SUBMISSIONS WILL BE ACCEPTED since this assessment counts as your examination for this module. You are advised to submit your examination answers as soon as possible. NO EXTENSION FOR LATE SUBMISSION WILL BE GRANTED. TLI4801/202/2/2025 3 PLEASE NOTE: Tutorial Letter 202/2/2025 will only be available on myModules during the period of submission, as it serves the same purpose as an examination paper. Once the submission closes on the system, this tutorial letter is automatically removed and will no longer be available and can no longer be accessed. 2.2 You must submit your examination answers as a single document in PDF-format, and same may not be submitted with security restrictions under the “protect document”- option because the security restrictions interfere with the electronic marking programme used and prevents the electronic marking of assignments. PORTFOLIOS E-MAILED TO LECTURERS WILL NOT BE ACCEPTED AS ASSIGNMENTS MUST BE REGISTERED AND PROCESSED ON THE SYSTEM BY THE ASSIGNMENT DEPARTMENT. If you submit your portfolio in an incorrect format, or if you submit the portfolio with security restrictions under the “protect document”-option, the portfolio will simply be cancelled, and you could fail this assessment (which will result in you having to re-register for this module next semester). As you may only submit one document, you must ensure that everything you want us to assess is included in the ONE document that you submit. No additional files will be accepted either on myModules or via e-mail. This includes the declaration of authenticity! A second submission automatically replaces the first submission on the system, and a submission comprising only a declaration of authenticity will thus result in a zero-mark. Ensure you keep a copy of the portfolio that you submit AND keep evidence of your submission on the myModules platform. Also, FOLLOW ALL THE STEPS REQUIRED FOR SUBMISSION. If you fail to do so, the system will show that you did not submit the portfolio assignment, and your examination result will read “absent from examination.” All queries regarding problems with myUnisa must be addressed to the Assignment Department, Bugmaster or the ICT Department and not to the lecturers. WE CANNOT PROVIDE ANY TECHNICAL ASSISTANCE AND ALSO DO NOT HAVE ACCESS TO THE SYSTEM. PLEASE DO NOT EMAIL YOUR PORTFOLIO ANSWERS TO THE LECTURERS! 2.3 The examination answers must contain your full names, student number, module code, unique number, and declaration of authenticity. 2.4 The examination counts 100 marks and consists of TWO (2) questions. Each answer must commence on a separate page. Ensure that you give full reasons for each answer. A mere "Yes" or "No" answer will not earn you any marks. Please answer ALL the questions. 2.5 Number your answers correctly and write your answers in your own words. Students will lose marks if their answers indicate copying, plagiarism, or collaboration with other parties. SCRIPTS MAY ALSO BE INVESTIGATED FOR POSSIBLE DISCIPLINARY PROCEEDINGS IN THESE CIRCUMSTANCES. Your answers must be typed in Arial 12pt with 1.5 line spacing. Your answers must appear on one side of the page. Leave a space between each answer. Your entire portfolio assignment must not exceed 25 pages. TLI4801/202/2/2025 4 2.6 Your answers must contain complete references to sections in legislation, principles, and relevant case law. Students will be penalised for incomplete or incorrect references. 2.7 Please ensure that you complete and sign the DECLARATION OF AUTHENTICITY at the end of this tutorial letter and attach the signed declaration to your examination answers. You may retype the declaration, or you may attach the signed declaration to your answers in any other manner. EXAMINATION ANSWERS WITHOUT SIGNED DECLARATIONS WILL NOT BE MARKED. 2.8 Please ensure that you submit the correct assignment – a wrong assignment will result in the cancellation of your assignment. If the correct assignment is not resubmitted before the due date, a zero-mark will be awarded. 3. OCT/NOV 2025 EXAMINATION (NON-VENUE-BASED ASSESSMENT) QUESTION PAPER Due date for examination: 28 October 2025 at 23:00 pm (in the evening) Unique number: 642794 Submission period: 23 October 2025 – 28 October 2025 TLI4801/202/2/2025 5 PORTFOLIO EXAM: OCT/NOV 2025 TECHNIQUES IN TRIAL AND LITIGATION (TLI4801) INTRODUCTORY REMARKS: This type of assessment (non-venue- based assessment) represents the final assessment in this module. THEREFORE, KINDLY DO NOT CONTACT ANY OF THE LECTURERS FOR GUIDELINES REGARDING THE COMPLETION OF THIS ASSESSMENT AS IT IS CONSIDERED A FORMAL EXAMINATION, WHICH MUST BE COMPLETED INDEPENDENTLY. FORMAL REQUIREMENTS: PLEASE COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN WRITING THE EXAMINATION (NON-VENUE-BASED ASSESSMENT) AND TAKE NOTE OF THE FOLLOWING RULES: (1) THE PAPER CONSISTS OF TWO QUESTIONS, NAMELY QUESTION 1 ON CIVIL PRACTICE, and QUESTION 2 ON CRIMINAL PRACTICE. BOTH QUESTIONS ARE COMPULSORY. (2) THE ANSWERS IN THIS QUESTION PAPER ARE TO BE OBTAINED FROM YOUR PRESCRIBED STUDY MATERIAL, namely, the prescribed textbook, CG Marnewick Litigation Skills for South African Lawyers, 4th/5TH edition, (2019/2024 LexisNexis) and the additional resources material. You may consult other sources to see if they are properly referenced. (3) YOU ARE REQUIRED TO EXHIBIT YOUR OWN INITIATIVE WHEN ANSWERING QUESTIONS, IN ORDER TO SHOW THAT YOU UNDERSTAND THE CONTENT. IN OTHER WORDS, YOU MUST, AS FAR AS POSSIBLE, USE YOUR OWN WORDS WHEN WRITING YOUR ANSWERS. THE WORD-FOR-WORD REGURGITATION OF ANSWERS FROM THE STUDY MATERIAL WILL NOT BE REWARDED WITH FULL MARKS. (4) THE ANSWERS MUST BE WRITTEN OR TYPED. YOUR COMPLETED ANSWERS MUST THEN BE CONVERTED INTO PDF FORMAT AND SUBMITTED ONLINE IN THE SAME MANNER THAT YOU SUBMIT ALL OTHER ASSIGNMENTS ONLINE. TLI4801/202/2/2025 6 THE QUESTION PAPER: QUESTION 1: CIVIL PRACTICE [50] Question 1.1 Mrs. N Slipper and her family decide to drive to Durban for the weekend to celebrate her 60th birthday. On 22 August 2025 they arrive at the Slip and Shiny Hotel (Pty) Ltd, situated on the Durban beachfront with stunning views of the Indian Ocean and with direct access to the beach from the main lobby of the hotel. The lobby floor is polished in a natural blue limestone, known for its beauty and slickness when wet. On the morning of 23 August 2025 at 08h00am the family, comprising of Mrs. Slipper, her husband and their 2 grandchildren, decide to have breakfast at the hotel lobby and to immediately head to the beach for an early swim after breakfast. After breakfast, the family head to the beach. As Mrs. Slipper walked from the main entrance towards the exit door leading to the beach, her feet slipped out from under her, and she fell hard onto her right side. She immediately felt a sharp pain in her right hip and was unable to get up. The cause of her slip was a clear, odourless liquid that was on the floor where she fell. The liquid was identified as spilled bottled water. One of the guests who checked-in approximately 20 minutes earlier had a water bottle on top of his luggage that was not tightly closed. Some of the water spilled onto the floor. The spill was not identified by the staff despite the hotel’s clear policy requiring cleaning staff to “continuously patrol” the lobby area to identify hazards on the floor. As a result of the fall, Mrs. Slipper suffered a fractured right hip and required emergency surgery. She was hospitalised for five days and then transferred to a rehabilitation facility for three weeks. Now she is home but requires a walker. Her recovery is progressing more slowly than expected due to her age and pre-existing arthritis. Her orthopaedic surgeon states she will likely have permanent reduced mobility and will develop post-traumatic arthritis in the joint. Her medical expenses to date amount to R350 000,00 (surgery, hospital stay, and rehabilitation) and her future medical expenses (physical therapy and potential future surgery) are estimated at R75 000,00. Mrs. Slipper blames the hotel’s negligent conduct for her fall, her resulting injuries and the pain and suffering she has endured. She now approaches you for advice on instituting legal action against the hotel. 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 that Jock Builders will use to recover the outstanding amount. (4) (b) Draft the summons chosen in 1(a) above. (10) (c) The owner of Jock Builders requests your advice regards a suitable ADR (alternative dispute resolution) mechanism to resolve the dispute with Mr Peters expeditiously. Discuss briefly whether arbitration or negotiation is the most suitable ADR mechanism having regard to the given facts and advise Jock Builders accordingly. (10) (24) 2. Answer the following questions: 2.1 Discuss what you understand by the term “heads of argument”. (3) 2.2 Critically discuss how an attorney/advocate may deal with the issue of submitting heads of argument late in court. (5) [8] 3. Ms Novice Stevens, a defence attorney, commences her first trial in court A at the Randburg magistrate’s court. During the course of the trial, she continuously uses statements like “Please bear with me, your worship” and “please overlook my mistakes, I am new at this!” when addressing the presiding officer. Critically discuss the impact TLI4801/202/2/2025 7 of the above statements on the defendant’s attorney’s performance and confidence in court. (5) 4. It is common practice nowadays for attorneys to use emails and text messages to advise their clients. Discuss the use of such emails and text messages by attorneys in practice. (3) 5. Critically discuss the role and liability of the Legal Practitioner’s Fidelity Fund in addressing pecuniary loss suffered by clients as a result of the actions of their legal practitioners. You must refer to relevant legislation in your answer. (10) [50] 8 QUESTION 2: CRIMINAL PRACTICE 1. Discuss whether an attorney can fabricate a defence for his/her client. (4) 2. Your client, Violent Mashaya, who is arrested on a charge of arson, advises you that he is not guilty. The evidence against your client is that he was seen loitering near the Essen Warehouse property before it caught alight. The incident took place on the 12 May 2020 near Mamelodi West, Pretoria in the Regional Division of North Gauteng. Although no one was injured in the fire, the owner of Essen Warehouse has suffered extensive pecuniary loss/damage as result of the fire to his property. Your client denies that he committed the act of arson or that he acted unlawfully and intentionally. Therefore, he instructs you, his attorney, to tender a plea of not guilty on his behalf. Answer the following questions: 2.1 Discuss the implications of not preparing/drafting a not guilty plea/statement in terms of the Criminal Procedure Act 51 of 1977. (4) 2.2 Draft your client’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/create facts to supplement the given facts of the case in so far as your own rendition does not detract from the core issues. [14] 3. Critically discuss the discretionary role of the court to grant a section 174 discharge. Motivate your answer by reference to relevant case law. (10) 4. Three Suspects Ace Mbiza, Chance Cloete and Finance Knoetze, former executives of BDSM Mutual Bank are arrested and brought to court to face charges for fraud, theft and bribery following the disappearance of an amount of R 600 million Rands from the BDSM accounts. The amount represents the deposits made by BDSM clients. You represent Mr. Finance Knoetze, the former Chief Financial Officer of the Bank. He informs you that he was initially approached by one of the co-accused Mr Ace Mbiza , the former CEO of BDSM Bank with this elaborate plan to move clients’ deposits from BDSM accounts and use it to pay third parties employed by various government agencies. 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 Finance 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 TLI4801/202/2/2025 9 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 instructs you as his attorney to advise him on whether he can proceed with providing evidence on behalf of the state in terms of section 204 of the Criminal Procedure Act, 1977 and the implications of doing so. Having regard to the above facts, discuss the purpose of section 204 of the Criminal Procedure Act, 1977 and advise Mr Knoetze about the implications of him providing/tendering evidence on behalf of the state. In your answer, you must refer to relevant case law and academic literature. (10) 5. Discuss the different techniques that trial lawyers may use in order to improve the retention of key information presented at the trial.(a) Will it be advisable to commence with a letter of demand to commence with the legal action against the hotel and what are the possible benefits for doing so? (6) (b) Mrs. Slipper instructs you to proceed with a summons following the failure of the hotel to respond to the letter of demand. Discuss whether Mrs. Slipper should use a provisional sentence summons or a combined summons to institute her claim or action. (4) TLI4801/202/2/2025 (a) Critically discuss how an inadequate pleading can be rectified. (4) (b) Discuss the use of vocational training in practice. (6) (c) Discuss how one can address the following mistakes in negotiation (4) (i) failing to plan a concession (1) (ii) failure to pay attention to detail (2) (iii) employing an inflexible approach to the case (1) (d) Mr. D Brilliant, an attorney, represents the plaintiff in a divorce matter. Mr. D Brilliant has been requested by the couple (plaintiff and defendant) to settle their divorce action and draft a settlement agreement for both parties. Discuss whether it is ethical for the plaintiff’s attorney, Mr. D Brilliant, to draft the settlement agreement for both parties. Discuss the impact of the sentence agreement in terms of Section 105A of the Criminal Procedure Act 51 of 1977. (5) Discuss the circumstances when an application for separation of trial can be made. Discuss the pleading that will be annexed to the summons to support Mrs. Slipper’s claim or action. (4) (d) Draft that section of the pleading (referred to in 1 (c) above) that sets out Mrs. Slipper’s material facts or facta probanda only. (10) (e) Critically discuss whether mediation can be used as an appropriate Assume you are Tuffy’s attorney. Argue in favour of him being released on bail. (5) (b) Tuffy has a previous conviction of theft committed three years ago and he was sentenced to three months’ imprisonment. Discuss whether this must be disclosed by you as part of your arguments in support of his application and the consequences for Tuffy and his application for bail, should this not be disclosed. (5) (d) Assume you are the public prosecutor. Argue in favour of denial of Tuffy’s release on bail. (5) (e) Assume you are the magistrate. Give a considered judgement as to whether the accused should be released on bail, including any conditions upon which Tuffy should be released. (5)ADR strategy by Mrs. Slipper to have the matter resolved. (6) Tuffy has been arrested on a charge of murder following a shootout during an armed robbery of a cash-in-transit vehicle just outside of the Pretoria CBD. The incident resulted in the death of the driver of the cash-in-transit security company vehicle and the wounding of his assistant. An attorney, Danny Means, arrives at court to attend to an unopposed application on behalf of his client when suddenly, and in the middle of court proceedings, his cellphone rings loudly inside court. He does not switch off the phone but slowly walks outside to answer the call. Mr. Means’s matter is number eight out of ten matters on the roll and Mr. Means is therefore unavailable when his matter is called. He rushes back to the courtroom following his phone call when the presiding officer has just completed giving a ruling on the last matter on the roll. Mr. Means stands up and requests that his matter be heard. He explains to the presiding officer that he had to step outside to take an urgent personal telephone call from his wife. He makes a ribald joke about “demanding spouses and offspring”. Discuss whether Mr. Means’s conduct conforms to acceptable court etiquette.Tuffy’s arrest arises from his links to his uncle (who has also been arrested) as well as the fact that an unlicensed firearm, that is linked to the armed robbery and murder, was found in his room. Tuffy’s background circumstances are to the effect that he is 22 years old and lives with his mother and four siblings in Danville, Pretoria West. None of them are employed, although his mother receives a monthly pension of R1500. The two younger siblings are at school. Tuffy earns R300 over the weekends working for his uncle at his car wash business. Tuffy is also working as a gardener two days a week for an elderly woman who pays him R200 per day. He has been doing this for the past five years, starting on weekends while he was still at school, and continuing during the week after completing school. He has applied (and been accepted) to do a motor mechanic course at the Pretoria West TVET College and is due to commence with his studies on 01 January 2026. The police are opposed to Tuffy being released on bail on the basis that the offences with which he has been charged are serious, and that cash-in-transit robbery cases are not abating but have increasingly become more violent. Critically discuss the type of information a defence attorney should avoid when drafting his client’s plea explanation. (5) 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.There were three other suspects who have not yet been arrested, and there is a fear of widespread intimidation of witnesses. Tuffy’s version of events surrounding the incident is that he has been falsely implicated. He admits to being in possession of a firearm but states that it was given to him by his uncle for safekeeping. He claims that he was under the impression that the firearm was licensed. Your client, Miles Roe, who has been arrested on a charge of assault with intent to cause grievous bodily harm, advises you that he is not guilty. The evidence against your client is that he attacked the victim, Dane Sam, with a hammer. The incident took place on 24 September 2025 in Nel Mapius in the Regional Division of North Gauteng. The complainant/victim has suffered visible and extensive injuries as a result of the incident. Your client denies, however, that he committed the assault. He informs you that the victim attacked him first unjustifiably and that he (your client) acted in self-defence. Therefore, he instructs you, as his attorney, to tender a plea of not guilty on his behalf