TLI4801 - Techniques in Trial and Litigation Assignment

TLI4801 - Techniques in Trial and Litigation Assignment Question 1 1. Violent will be charged with a Schedule 5 offence Which is: - Attempted Murder involving grievous bodily harm - Culpable homicide - Assault - Rape 2. Bail Application in terms of Section 60(11) of the Criminal procedure Act 51 of 1977 Section 60(11) of the Criminal procedure act provides is not withstanding any provision of this Act, Where an accused is charged with and offense referred to – a) In Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release; b) in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release The legislation indicates that on certain circumstances the onus will be on the accused during the bail application. The crime committed will need to be identified first, whether it would be a schedule 5 or 6 offence. For a schedule 6 offences, the accused has to adduce evidence to satisfy the court that exceptional circumstances exist for the court to permit his release on bail. For schedule 5 offences, the accused has to adduce evidence to satisfy the court of his release. The Witness reports on the case all points to the accused (violent) being the one responsible for the death of the victim (Victim skepsel), he has been arrested by the police for the crime. 1 | P a g eIN THE REGIONAL COURT FOR THE REGIONAL COURT OF GAUTENG HELD AT PRETORIA In the matter between: THE STATE Vs Violent Mashaya STATEMENT IN TERMS OF THE PROVISIONS OF SECTION 60(11) OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 Do hereby make oath and state: 1. I am an adult male and a South African citizen with identity number 47087. 2. I am the Applicant in this application in which I seek relief from this Honorable Court to be released on bail. I respectfully submit, as I will demonstrate herein, that the interests of justice permit my release on bail. In any event, the dictates of fairness and justice in view of the peculiar facts herein warrant that I should not be deprived of my liberty and that I should be released on bail 3. I make this affidavit of my own free will and have not in any way been unduly influenced to depose thereto. 4. The facts herein contained, save where expressly indicated to the contrary, are within my personal knowledge and belief, and are both true and correct 2 | P a g eAD APPLICATION IN TERMS OF SECTION 60(11) OF ACT 51 OF 1977 (“The Act”) 5. The purpose of this affidavit is to provide the above Honorable Court with my personal circumstances and to address the allegations levelled against me (in so far as they are known to me), as well as to address the factors to be considered by the above Honorable Court as contained in Sections 60(4) to 60(9) of the Act 6. I have been advised and I understand that I bear the burden to show that the interests of justice permit my release and that I am obliged to initiate this application. I did not in any way intent to kill the victim and due to a mistake that the circumstances occurred and wish to be excused on the charge of attempted murder involving grievous bodily harm. Personal Circumstances 7. I am a Commercial Manager by profession and I reside at 587 Eva Brooks Estate, Mondeo drive, Equestria, Pretoria 8. I was born 23 December 1987 at Limpopo Ga-Mashashane, I have resided in the republic of South Africa all my life. I do travel for business but usually within the Country. I regard South Africa as my home and I have no intention to relocate. 9. I have immovable property in which I currently reside at 587 Eva Brooks estate in Equestria, the property is valued at R2.8 Million 10. I have another property in Limpopo as 66 London street, Ga-Mashashane which my grandmother has left for me, the property is valued at R500 000. 11. I have movable assets made up of household furniture, two motor Vehicles and jewellery, which valued in excess of R950 000. 12. All my family reside in South Africa. 3 | P a g e13. I have a previous conviction of attempted, but I have since gone to rehab and was given assistance with my anger problems. There are no outstanding cases other than the present, being investigated against me by the South African Police service. Merits 14. My legal representatives have explained the provisions of Section 60(11) of the Act to me. 15. I have been informed that I am accused of having committed the offence of attempted murder involving grievous bodily harm. I deny the aforesaid allegation in the strongest terms 16. On the 12 of March 2015 I Violent Mashaya attended a party in Mamelodi west with two of my friends Skunky and coward as we usually do on weekends. 16.1. 16.2. 16.3. I and my friends were minding my own business when I saw Victim skepsel with my girlfriend at the time Poppy floozy. I approached her surprised that she was at the same place that I was It was already late and I asked Poppy floozy to come with me, but before she could answer Victim Skepsel answered on her behalf, this made me angry because I did not understand what was happening at the time. 16.4. Victim skepsel was very drunk, and tried to get in between me and my girlfriend while I was going home, he wanted to fight me and I avoided his insults as we were walking away. 16.5. I became rather angry at this moment and told Victim to Kindly move out of our way, this is when Victim grabbed a chair with the aim to hit me with it. 16.6. He kept on threatening me that he would hit me with the chair if I did not leave my girlfriend alone he was going to hit me with the chair 16.7. He began hitting me with the chair aggressively, I defended myself with a similar chair that Victim used, 16.8. At this moment a huge crowd of people came in between us to try and stop the fight, including my girlfriend Poppy floozy. 16.9. In the event that everyone came between us to try and stop the fight, we all 4 | P a g efell to the floor. 5 | P a g e16.10. I finally stood up and suggested me and my girlfriend go home before we get hurt even further. 16.11. The following day I had a business seminar in Limpopo for the week and decided to stay at my grandmother’s house during this time, 16.12. I was surprised to learn that the victim died shortly after our fight at the party, 16.13. I am absolutely mortified by the devastating turn of events, I believe the police investigations will be of assistance and provide details of how he died as strongly believe it could not have been by my hand as I have surely sustained the same injuries from the fight as he did. Flight risk 17. I will stand my trial should it proceed against me. I am a well-known person in the community. I trust the South African legal system and that the facts will show that I did not murder Victim Skepsel. 18. In order to persuade the above Honorable Court that I should be released on bail, I provide the following additional facts and information in terms of Section 60 of the Act. SECTION 60(4)(a), READ WITH SECTION 60(5) OF THE ACT 19. I do not know the identity of any witness upon whom the State will rely in order to attempt to prove a case against me. In any event, I have no intention to interfere with any witnesses as I have no cause to do so and I undertake not to do so. 20. I maintain good relationships with people and I bear no grudges against anyone. 21. I am not disposed to violence SECTION 60(4), READ WITH SECTION 60(6) OF THE ACT 22. I respectfully submit that the facts set out above support my contention that I do not constitute a flight risk. 6 | P a g e23. I have a South African passport, the one is full. But I am willing to surrender the passport to the investigating officer should it be a condition of bail. I am not in possession of any other travel documents and undertake not to apply for such documentation pending the finalization of these proceedings. 24. After the fight I did not attempt to flee. Rather, I was leaving a hostile situation in order to not continue a fight with Victim. 25. I will be able to raise an appropriate amount to post as bail. SECTION 60(4), READ WITH SECTION 60(7) OF THE ACT 26. I have no knowledge of any evidentiary material which may exist with regard to the allegations levelled against me. In any event, I believe that whatever such evidence may be, it is in the possession of the police; it is safely secured and I do not have access thereto. I undertake not to interfere with any further investigations. 27. I am not sure which witnesses the State will rely upon in order to attempt to prove its case against me. Nonetheless, I undertake not to communicate with any witness, whoever he or she may be, and any other persons whose names may appear on a list of "State witnesses", to be provided by the State. AD SECTION 60(4)(e), READ WITH SECTION 60(8A) 28. I respectfully submit that should I be released on bail, my release shall not disturb the public order or undermine the proper functioning of the criminal justice system. 29. I will comply with such conditions as the above Honorable Court may wish to impose. SIGNED AND SWORN TO BEFORE ME ON THIS THE 25th DAY OF MARCH 2015, THE DEPONENT HAVING ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT THAT HE HAS NO OBJECTION TO TAKING THE PRESCRIBED OATH AND THAT HE CONSIDERS THE OATH TO BE BINDINGUPON HIS CONSCIENCE Question 2 7 | P a g eSection 112 (1) (a) of the Act allows a conviction on the basis of the plea alone. When the accused pleads guilty he or she may immediately be convicted without any questioning and 8 | P a g ewithout the basis of the plea being established. This therefore provides a speedy disposition of cases. Time is saved. IN THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA In the matter between: THE STATE Vs Violent Mashaya - Accused ACCUSED'S PLEA STATEMENT IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE ACT NO.51 OF 1977 ("THE CPA") ON A PLEA OF GUILTY TO ATTEMPTED MURDER WITH GRIVEOUS BODILY HARM 1. I am the accused in this matter in which I am charged with Attempted murder involving grievous bodily harm In terms of the Criminal procedure Act 51 of 1977 2. I have read the indictment, understand the allegations made therein and I plead guilty to the crime of attempted murder involving grievous bodily harm. 3. In pleading guilty to culpable homicide as aforesaid I admit that on 12 March 2018 in Mamelodi East, Pretoria unlawfully and negligently caused the death of, Victim Skepsel ("the deceased") by assaulting him. 4. I assaulted the Deceased by at the party in Mamelodi, by hitting him with a chair, when I commenced the assault upon the deceased acting in private defense as he was trying to fight me from taking Poppy home, the deceased was in possession of a chair that he wanted to use to hit me with of which he did. 4.1. I also in my anger proceeded to pick up a chair and fought back with it against the deceased 4.2. 9 | P a g e I admit however that I continued with the assault upon the deceased when he no longer posed a threat to me, in my initial assault I renderedhim incapacitated 4.3. In my second attempt, this incurred when we fell down to the floor, the deceased and I, I had a steel rod from one of the chairs we were hitting each other with and