CRW2601_EXAMPACK VERIFIED Q AND A.

Table of Contents Nov 2015 ....................................................................................................................................................... 2 June 2015 .................................................................................................................................................. 9 Nov 2014 ................................................................................................................................................. 16 June 2014 ................................................................................................................................................ 24 Nov 2013 ................................................................................................................................................. 31 2 | P a g e Nov 2015 SECTION A 1. 1 2. 5 3. 5 4. 4 5. 4 6. 5 7. 5 8. 3 9. 3 10. 2 SECTION B QUESTION 1 Question 1(a) i. The consent must be (1) given voluntarily (2) given by a person who has certain minimum mental abilities (3) based upon knowledge of the true and material facts (4) given either expressly or tacitly (5) given before the commission of the act (6) given by the complainant herself ii. No. If a woman is mentally ill, under a certain age, drunk, asleep or unconscious, she cannot give valid consent to sexual intercourse (C 1952 (4) SA 117 (O) 121; K 1958 (3) SA 420 (A)). Question 1(b) i. Any 4 of the following factors  the relationship between the parties  their respective ages, gender and physical strengths  the location of the incident  the nature, severity and persistence of the attack 3 | P a g e  the nature of any weapon used in the attack  the nature and severity of any injury or harm likely to be sustained in the attack  the means available to avert the attack  the nature of the means used to offer defence  the nature and extent of the harm likely to be caused by the defence ii. Steyn 2010 1 SACR 411 SCA The appellant shot and killed her former husband when he threatened her with a knife. The appellant was convicted of culpable homicide. On appeal to the Supreme Court the state argued that the appellant should have fled and thus avoided being assaulted without the necessity of shooting at the deceased. The judge remarked as follows ‘[w]hether a person is obliged to flee from an unlawful attack rather than entitled to offer forceful resistance, is a somewhat vexed question. But in the light of the facts in this case, it is unnecessary to consider the issue in any detail’. OR In S v Mostert 2006 (1) SACR 560 (N), a traffic officer charged with the crime of assault relied on the defence of obedience to orders. The court held that obedience to orders entailed an act performed by a subordinate on the instruction of a superior, and was a recognised defence in law. Although the defence of obedience to orders usually arises in a military context, its application is not exclusive to soldiers. For the proper functioning of the police and the protection services it was essential that subordinates obey the commands of their superiors. The court held that there were three requirements for this defence, namely: (1) the order must emanate from a person in lawful authority over the accused; (2) the accused must have been under a duty to obey the order; and (3) the accused must have done no more harm than was necessary to carry out the order. Regarding the second requirement the test was whether or not the order was manifestly and palpably unlawful. Therefore, the court applied the principle laid down in the Constitution of the Republic of South Africa, 1996 (section 199(6)), namely that the defence of obedience to orders will be successful, provided the orders were not manifestly unlawful.