TLI4801 EXAM PORTFOLIO.

TLI4801 EXAM PORTFOLIO. An action procedure is commenced by either simple or combined summons. A simple summons is used for matters where a claim is liquidated, for example a debt, whereas a combined summons is utilised in matters concerning unliquidated debts for example a claim for damages due to a motor vehicle accident.1 Mr Smith will thus make use of a combined summons in order to institute his action. b) It is necessary for a pleading to be annexed to a combined summons. Thus, this will be the plaintiff’s particulars of claim, which is in turn the material facts upon which the plaintiff (Mr Smith) will rely in order to substantiate his claim. The particulars of claim must generally adhere to the rules on pleadings.2 c) IN THE MATTER HELD BEFORE THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG Between ALAN SMITH Plaintiff And JOE SOAP Defendant d) 1. The Plaintiff, an adult male person, Joe Soap who was born on 06 March 1970. 2. On the morning of 02nd of January 2017 on Merring street, Johannesburg North, while cycling, Mr Alan Smith was struck from behind by a certain speeding taxi with registration number TN565 GP driven by Mr Joe Soap (Hereinafter referred to as the insured driver). The collision resulted in a damaged bicycle of Mr Smith as well as injuries sustained upon him. 3. As a result of the said collision, the plaintiff sustained multiple bodily injuries: 3.1. A broken right leg 3.2 A broken pelvis 3.3. A deep cut below his right eye resulting in permanent facial scarrings 1 Page 9 Civil Litigation South African School of Paralegal Studies (4th Ed) 2 Page 9 Civil Litigation South African School of Paralegal Studies (4th Ed) Page 2 of 13 3.4 Bruises and abrasions on the right-hand side of his body 4.The collision in question was caused solely due to the negligent driving of Joe Soap in one or more of the following:- 4.1 He failed to keep a proper look out 4.2 He failed to avoid the collision when he could and should have done so. 4.3 He was travelling at an excessive speed in the circumstances. 4.4 He failed to obey the rules of the road. 45. B failing to exercise proper control over the insured vehicle. e) WHEREFORE the Plaintiff prays for judgment against the Defendant for: 1. Payment in the amount of R750 000 2. Costs of suit 3. Further and/or alternative relief3 f) IN THE MATTER HELD BEFORE THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG Between ALAN SMITH Plaintiff And JOE SOAP Defendant NOTICE OF INTENTION TO DEFEND KINDLY take notice that the Defendant hereby intends to defend this matter. The offices of the Defendant’s attorneys, as indicated hereunder, are the address at which all documents in this action shall be accepted. Signed at Pretoria this 18th day of April 2019 ………….AV Charles…………. Charles Associates Incorporated Defendant’s Attorneys 4 th floor Charles Inc. Building 3 Page 3 of 13 54 Grady Street, Johannesburg (Ref: HC3680) TO: The Registrar of the High Court Johannesburg AND TO: Beckley and Partners, Plaintiff’s attorneys Ground Floor Maximus Building 64 Maximus road, Pretoria (Ref: HC4067) Received a copy hereof on the 21st day of April 2019 …Jonaveze Beckley …. For the Plaintiff’s attorneys 2) As the nature of the counselling process is of importance, is personal and is dynamic, it has been found challenging when counselling a ‘lay” client by means of a letter. There are however advantages as well as disadvantages to the approach. The advantages include that the client can properly reflect upon the letter in order to make a concise decision, by being able to read it as many times as they please. On the other hand, the main disadvantage of this approach is that a client is not awarded the opportunity to ask the relevant questions to his or her attorney, which may lead to a client not fully comprehending the contents of the letter, and could, risk the client making an error.4 3) Cross examination is defined as: “the questioning of a witness upon a trial or hearing, or upon taking a deposition by the party opposed to the one produced to him”5 Thus cross-examination is the means of confronting a testimony from adversarial witnesses. Cross-examination is deemed the most efficient means of testing statements and can be added of value when challenged by an opposing party. In order to maintain a fair trial, cross-examination proves vital, in that it allows us to re-test, challenge as well as confirm statements by witnesses, which add value in key evidence. This type of examination further allows us to put the adversarial system to the test, in both civil and criminal matters. Thus, as John Henry Wigmore stated: “cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” QUESTION 2: CRIMINAL PRACTICE 4 Page 34-35 Marnewick CG Litigation Skills for South African Lawyers 3rd ed (LexisNexis 2012) 5 Black’s Law Dictionary 276 5th ed (1979) Page 4 of 13 1a) Section 59 A (1) of the Criminal Procedure Act 51 of 1977(further the CPA) provides for the release of an accused on bail in terms of schedule 7 offence. This may be authorized by an attorney-general, alternatively an authorized prosecutor by the attorney-general, in consultation with the police investigating officer.6 There are several offences under schedule 7, they read as follows:  Public violence  Culpable homicide  Bestiality  Assault involving the infliction of grievous bodily harm  Arson  Housebreaking, whether under the common law or a statutory provision, with intent to commit an offence  Malicious injury to property  Robbery, other than a robbery with aggravating circumstance, if the amount involved in the offence does not exceed R20 000,00  Theft and any other offence referred to in section 264(1)(a), (b) and (c), if the amount involved does not exceed R20 000,00  Any offence in terms of any law relating to the illicit possession of dependenceproducing drugs  Any offence relating to extortion, fraud, forgery or uttering if the amount involved in the offence does not exceed R20 000, and  Any conspiracy, incitement or attempt to commit any offence listed in the schedule7 Assault involving the infliction of grievous bodily harm describes the most severe form assault. As this is one of the offences listed under schedule 7, prosecutorial bail may be applied for in light of the facts provided. Thus I will advise my client that prosecutorial bail may be obtained for his release from jail in terms of section 59(A) of the CPA. b) In the event that an attorney applies for bail for offences not relating to schedule 5 or 6, she or he is obliged to inform the court in terms of section 60(11B)(a)(i)(ii) of the CPA, if there are any previous convictions, pending cases against such a client and if they have been released on bail of any such cases or convictions. Further, in terms of section 60(11B)(d) if an attorney fails to disclose the cases or convictions mentioned above, it will considered a criminal offence.8 c) Section 60(11)(a) of the CPA reads: 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 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. 6 Section 59A(1) of the Criminal Procedure Act 51 of 1977 7 Schedule 7 Criminal Procedure Act 51 of 1977 8 Page 2 Maharaj A Confident Criminal Litigation (LexisNexis 2010) Page 5 of 13 These exceptional circumstances, are classified as unusual circumstances, which could relate to the offence or be of a personal nature. Over time the court has had many views on exceptional circumstances per say, for example, a court held that exceptional circumstances must be viewed in their ordinary meaning9 and in another the court it was stated that exceptional care should be taken in assessing usual circumstances10, among others. Thus in conclusion the exceptional circumstances referred to in section 60(11)(a) of the CPA, cannot be regulated indefinitely, as these circumstances are unique to each matter, faced before the court and differ from case to case. As the exceptional circumstances will only apply in respect of a case in question, a court thus excercise discretion to a certain degree to assess and decide on the exceptional circumstances which be applicable in a specific matter. d) The factors to be considered in promoting the interests of justice are found in section 60(4)(a)-(e) of the CPA. The main purpose hereof, is that the interests of justice allow the release of the applicant seeking bail, in that it must protect the investigation as well as the prosecution of the case against the applicant.11 Section 60(4)(a)-(e) of the CPA states that interests of justice do not permit release in the following circumstances/grounds: (a) where there is the likelihood that the accused if released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; or (b) where there is the likelihood that the accused, if released on bail, will attempt to evade his or her trial; or (c) where there is the likelihood that the accused, if released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or (d) where there is the likelihood that the accused, if released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system; or (e) where in exceptional circumstances there is the likelihood that the release of an accused will disturb the public order or undermine the public peace or security. As bail can be seen as balance between public interest and the interest of liberty against the accused, the court needs to consider the strength of a state’s case against such an accused in determining whether bail should granted. The possibility of an accused evading his or her trial, tampering with evidence or will attempt to flee, are all factors which have to be weighed out, with certainty, against the interest of society and justice against the accused. Thus the “interests of justice” involve a 9 S v H 1999 (1) SACR 72 (W) 10 S v C 1997 (2) SACR 721 (CPD) 11 Page 3 Maharaj A Confident Criminal Litigation (LexisNexis 2010) Page 6 of 13 value judgement of what is fair and equitable when taking all circumstances into consideration. e) IN THE MAGISTRATES COURT FOR THE REGIONAL DIVISION OF GAUTENG HELD AT PRETORIA In the matter between: THE STATE And VIOLENT MASHAYA (THE ACCUSED) Case no: 25/164/2019 PLEA OF NOT GUILTY IN TERMS OF SECTION 115 OF ACT 51 OF 1977 (AS AMENDED) 1. I confirm that I am the accused in this matter, and that I have read the charge sheet and I understand the charge that has been preferred against me. 2. I plead not guilty to the charge of “assault with intent to do grievous bodily harm freely and voluntarily and without any undue influence.” 3. The circumstances under which this offence was committed and the background thereto may be summarized as follows: On the evening of 12 March 2019 I went to the local club “Mamoledi Sundowners” in Esselen street near Mamoledi, Pretoria to meet my friends for some drinks. Throughout the evening, an acquaintance, Victim Skepsel (“Victim”), approached me and in a highly intoxicated state, and accused me of stealing from his family. Our families had not been on speaking terms for a couple of years. I denied these allegations, however, the more I denied, the more upset Victim became. I decided to ignore him, but this seemed to set him off, in that he came closer to me and started jerking me around, into a corner. I merely pushed him out of the way and decided to leave the club in order to avoid further confrontation.