LEV3701-ASSIGNMENT-01-SOLUTIONS-SEMESTER-1-2

Mr Greedy Baloyi is the president of Africa Holdings, a company listed on the Stock Exchange. Mr Sure McDonald is his vice-president. They are charged with fraud amounting to R10 million in respect of the company’s funds, relating to insider trading of the company’s shares, as well as incorrect accounting practices relating to the non-payment of tax in respect of the company. The company’s accountant, Mr Numbers Mabema, is charged as an accomplice. QUESTION 1.1 Both accused have talked to their wives on numerous occasions regarding their insider trading and tax evasion activities in respect of the company shares and funds respectively. Discuss the competence and compellability of their wives as witnesses for the prosecution and for the defence. The general rule at common law was that the spouse of an accused person could not testify for or against such an accused. This does not apply to civil proceedings anymore. The spouse of a party is therefore a competent and compellable witness for and against the party concerned, although the rules regarding privilege may prevent a spouse from mentioning certain facts while giving evidence. With regard to criminal proceedings there are specific rules in force, depending on whether the spouse is a state witness, a defence witness or a witness for a co-accused. Spouse as a witnesses for the prosecution: It is governed by section 195 of the Criminal Procedure Act. In terms of this section, the spouse is competent to give evidence on behalf of the prosecution, but she can be compelled to testify only in certain circumstances. This exception only applies to matters dealing with the well being of, and relationship between, the married couple, as well as the well being of the children of the relationship or any child that is in the care of either of the spouses, incest or the sexual exploitation of children or mentally disabled persons.