EVI3701/101/3/2017

Tutorial Letter 101/3/2017

Law of Evidence: Admissibility of Evidence

EVI3701

Semesters 1 and 2

Department of Criminal and Procedural Law

This tutorial letter contains important information

about your module.

BARCODE

2

CONTENTS

Page 1 INTRODUCTION AND WELCOME. 3 2 PURPOSE AND OUTCOME 3 3 COMMUNICATION WITH YOUR LECTURERS 4 3.1 Calling or visiting lecturers. 4 3.2 E-mailing lecturers 5 3.3 Contact details of lecturers 5 4 COMMUNICATION WITH THE UNIVERSITY ADMINISTRATION 5 5 STUDENT SUPPORT SYSTEM 6 5.1 Student counselling 6 5.2 Learning centres 6 5.3 Group discussions 6 5.4 Contact with fellow students. 6 5.5 myUnisa 6 5.6 Free computer and internet access 6 5.7 Library services and resources information 7 6 STUDY MATERIAL 7 6.1 Inventory letter 7 6.2 Study material 7 6.3 Prescribed textbooks. 8 6.4 Study guide . 8 7 HOW THE EXAMINATION SYSTEM WORKS 9 7.1 Admission to the examination 9 7.2 Examination period 9 7.3 Examination paper 9 7.4 Previous examination papers 9 7.5 Supplementary examination and the semester mark 10 7.6 Tutorial letter with information on the examination 10 8 HOW THE ASSIGNMENT SYSTEM WORKS 10 8.1 General remarks 10 8.2 Commentaries and feedback on assignments 10 8.3 Submission dates 11 8.4 Cooperation between students 11 9 THE ASSIGNMENTS 11 9.1 FIRST SEMESTER: COMPULSORY ASSIGNMENT 01 11 9.2 FIRST SEMESTER: COMPULSORY ASSIGNMENT 02 13 9.3 SECOND SEMESTER: COMPULSORY ASSIGNMENT 01 18 9.4 SECOND SEMESTER: COMPULSORY ASSIGNMENT 02 20

EVI3701/101/3/2017

3

1 INTRODUCTION AND WELCOME

Welcome to the module Law of Evidence: admissibility of evidence! You will find a similar word of welcome in the introduction to your study guide. Please read both these introductory words of welcome with care, and note that, should the information they impart differ, you should follow the information in this tutorial letter. The Law of Evidence is presented in two modules, namely Evidence: admissibility of evidence (EVI3701) and Evidence: the presentation and assessment of evidence (EVI3702). This tutorial letter pertains to EVI3701 only, for both semesters of 2017. Both modules are normally taken during the third year of study. We are pleased to welcome you to this module, and hope that you will find it both interesting and rewarding. We will do our best to help you achieve success in your study of this module. You will be well on your way to success if you start studying early in the semester/year and complete the assignments with due diligence. You will receive a number of tutorial letters during the year. A tutorial letter is our way of communicating with you about teaching, learning and assessment. Tutorial letter 101 contains important information about the scheme of work, resources and assignments for this module. We urge you to read this tutorial letter carefully and to keep it at hand when working through the tutorial material, preparing the assignments, preparing for the examination and addressing questions to your lecturers. Please read Tutorial Letter 301 in combination with Tutorial Letter 101 as it gives you an idea of generally important information when studying from a distance and about a particular college. In this tutorial letter, you will find the assignments for both semesters and instructions on the preparation and submission of the assignments. This tutorial letter also provides all the information you need with regard to the prescribed tutorial material and how to obtain it. Please study this information carefully and make sure that you obtain the prescribed material as soon as possible. We have also included some general and administrative information about this module. Please study this section of the tutorial letter carefully. Right from the start we would like to point out that you must read all the tutorial letters you receive during the semester immediately and carefully, as they always contain important and sometimes urgent information. We hope that you will enjoy this module, and wish you all the best!

2 PURPOSE AND OUTCOME

The purpose of this module is for students to gain knowledge, skills and competencies to analyse and solve problems relating to the general concepts and sources of the law of evidence and the admissibility of evidence. A range of tasks in the study guide and tutorial letters, assignments and examinations will ensure that students achieve the following outcomes:

4

■ identification and comprehension of the role of the general concepts and sources of the law of evidence and the admissibility of evidence in current South African law and everyday life

■ an understanding of the history and theoretical framework of the general

concepts and sources of the law of evidence and the admissibility of evidence ■ application of the concepts and sources regarding the general concepts and

sources of the law of evidence and the admissibility of evidence in practical situations, as well as the solving of multidimensional legal problems associated with the general concepts and sources of law of evidence and the admissibility of evidence

■ understanding the legal methods of enquiry and research into the general

concepts and sources of the law of evidence and the admissibility of evidence

3 COMMUNICATION WITH YOUR LECTURERS

All queries that are not of a purely administrative nature but which concern the content of this module should be directed to the lecturers. Please have your study material with you when you contact us. Administrative queries include questions regarding your tutorial material, availability of prescribed books, whether assignments have been received, what marks you obtained, as well as when you will be writing the examination. You are most welcome to contact us regarding any academic enquiries. Our contact details are set out in the table below. Note that it is not advisable to address a letter or fax to a specific lecturer personally, as he or she may be absent from the office from time to time. Address any postal letter (snail mail) as follows: The Module Leader (EVI3701) Department of Criminal and Procedural Law PO Box 392 UNISA 0003 PLEASE NOTE: Letters to lecturers may not be enclosed with or inserted into assignments.

3.1 Calling or visiting lecturers

You are always welcome to call the lecturers or to send them an e-mail. You will always have a better chance of getting hold of the lecturers before 13:00, but if the lecturer is not available, messages can be left on the answering system (voicemail). Alternatively you can phone the departmental secretaries at 012 429 8397/8444/4995. yo u are also welcome to visit us in person, on the 8th floor of the Cas van Vuuren Building, Main Campus, Muckleneuk Ridge. However, always make an appointment before you do so. This will prevent a situation where you arrive at our offices, only to find that we have a prior engagement or are on leave.

EVI3701/101/3/2017

5

3.2 E-mailing lecturers

E-mail is increasingly the preferred method of communication. You can either e-mail us directly, or via the relevant links on myUnisa. If you send the same message to more than one lecturer, please select one to send the message to, and “CC” the others. This will speed up a response from our side.

3.3 Contact details of lecturers

Lecturer Telephone Office E-mail

Prof SS Nel 012 429 8336 Cas van Vuuren 8-80 nelss@unisa.ac.za

Adv M Monyakane 012 428 4294 Cas van Vuuren 8-74 monyammm@unisa.ac.za

4 COMMUNICATION WITH THE UNIVERSITY ADMINISTRATION

Students should address all queries on administrative matters to the addresses or telephone or fax numbers of the relevant administrative department. Contact addresses of the various departments are included in the booklet Study@Unisa, which you will receive with your tutorial material. This booklet contains information on how to contact the University (e.g. to whom you may write, important telephone and fax numbers, addresses, and details of the times certain facilities are open). For convenience, we repeat that administrative queries include questions regarding, for instance, your tutorial material, the availability of prescribed books, whether your assignments have been received, what marks you obtained for the assignment, any arrangements regarding the examination, and the re-marking of examination papers. Please remember that, a t certain times of the year, the University is inundated with enquiries from thousands of students. Try to space your enquiries so that they will not overlap with these busy periods. Always have your student number at hand when you call the University. Note that you may also use the Unisa website (www.unisa.ac.za) or e-mail if you have access to such facilities. More facilities are continuously recorded on the website.

How can students now contact Unisa?

■ Unisa website (http://www.unisa.ac.za & http://mobi.unisa.ac.za)

All study-related information is now available on the new Unisa corporate website in both web and mobi formats.

■ myUnisa (https://my.unisa.ac.za/portal & https://my.unisa.ac.za/portal/pda)

Students can access their own information via the myUnisa website or mobi site. ■ E-mail (info@unisa.ac.za)

Students may send an e-mail to info@unisa.ac.za for information on how to contact Unisa via e-mail.

■ SMS (32695 – only for students in South Africa)

Students may send an SMS to 32695 for more information on how to contact Unisa via SMS.

■ Fax 012 429 4150

Student support system

6

5 STUDENT SUPPORT SYSTEM 5.1 Student counselling

For information on the various student support systems and services available at Unisa (eg student counselling, tutorial classes, language support), please consult the booklet Study@Unisa. It is particularly important that you make use of these services if you are struggling with your studies or if you want to improve your language and writing skills.

5.2 Learning centres

Tutorial services are available for this module at the various Unisa learning centres. Please consult the publication Study@Unisa for further information.

5.3 Group discussions

There are no group discussions scheduled for 2017. 5.4 Contact with fellow students 5.4.1 Study groups

It is advisable to form study groups and to have contact with fellow students. The addresses of students in your area may be obtained from the following department:

Directorate: Student Administration and Registration PO Box 392 UNISA 0003

5.5 myUNISA

If you have access to a computer that is linked to the internet, you can quickly access resources and information at the University. The myUnisa learning management system is Unisa’s online campus which will help you to communicate with your lecturers, with other students and with the administrative departments of Unisa – all through the internet.

To go to the myUnisa website, start at the main Unisa website, http://www.unisa.ac.za, and then click on Login to myUnisa on the right-hand side of the screen. This should take you to the myUnisa website. You can also go there directly by typing in http://my.unisa.ac.za. Please consult the booklet Study@Unisa, which you received with your study material, for more information on myUnisa.

5.6 Free computer and internet access

Unisa has entered into partnerships with establishments (referred to as telecentres) in various locations across South Africa to enable you (as a Unisa student) free access to computers and the internet. This access enables you to perform the following academic-related activities: registration; online submission of assignments; and engaging in e-

EVI3701/101/3/2017

7

tutoring activities and signature courses. Please note that any other activity outside of these is for your own costing, for instance printing and photocopying. For more information on the telecentre nearest to you, please visit www.unisa.ac.za/telecentres.

5.7 Library services and resources information For brief information go to : http://www.unisa.ac.za/contents/studies/docs/myStudies-at-Unisa2016-brochure.pdf For more detailed information, go to the Unisa website: http://www.unisa.ac.za/, click on Library For research support and services of Personal Librarians, go to: http://www.unisa.ac.za/Default.asp?Cmd=ViewContent&ContentID=7102 The Library has compiled numerous library guides:

find recommended reading in the print collection and e-reserves -http://libguides.unisa.ac.za/request/undergrad

request material - http://libguides.unisa.ac.za/request/request

postgraduate information services - http://libguides.unisa.ac.za/request/postgrad

finding , obtaining and using library resources and tools to assist in doing research http://libguides.unisa.ac.za/Research_Skills

how to contact the Library/find us on social media/frequently asked questions - http://libguides.unisa.ac.za/ask

6 STUDY MATERIAL 6.1 Inventory letter

At the time of registration, you will receive an inventory letter which will indicate which items you have received in your study package, as well as those that are still outstanding. Also see the publication Study@Unisa. Check the study material you have received against the inventory letter. You should have received all the items specified in the inventory, unless there is a statement such as “out of stock” or “not available”. If any item is missing, follow the instructions on the back of the inventory letter without delay.

6.2 Study material

The tutorial material for Evidence: admissibility of evidence (EVI3701) consists of the following: (a) two prescribed textbooks (which you have to purchase yourself) (b) a study guide (c) tutorial letters (which you will receive during the year/semester)

The Department of Despatch will provide the tutorial letters and study guide for this module. Some of this study material may not be available when you register. Apart from Tutorial Letters 101 and 301, you will also receive other tutorial letters during the year/semester. These tutorial letters will be despatched to you as soon as they are available or needed (for instance, for feedback on an assignment). Tutorial letters are part of your study material for assignment and examination purposes. Read and re-read

8

each tutorial letter; keep them for reference purposes, and study them again. We do not know which tutorial letters reach you and which do not. Therefore the onus is on you to ensure that you receive every tutorial letter. Generally, the last letter which you will receive will deal with your preparation for the examination, and should reach you not later than approximately three weeks before the examination. If you have access to the internet, you can view the study guides and tutorial letters for the modules for which you are registered on the University’s online campus, myUnisa, at http://my.unisa.ac.za.

6.3 Prescribed textbooks

The prescribed textbooks for this module for 2017 are the following:

(a) Schwikkard PJ & Van der Merwe SE Principles of Evidence 4 ed (2016) Juta Cape Town.

(b) Van der Merwe DP, Terblanche SS, Naudé BC & Moodley K The Law of

Evidence: Cases and Statutes 5ed (2016) Juta Cape Town. Please consult the list of official booksellers and their addresses listed in the booklet my Studies@Unisa. If you have any difficulties in obtaining books from these bookshops, please send an e-mail to vospresc@unisa.ac.za or contact the Registrar as soon as possible at 012 429 4152.

6.4 Study guide

You will receive one study guide for EVI3701. The study guide consists of 16 study units. The introduction contains a description of the literature for this course and the study method you should follow. Please read the introductory unit of your study guide carefully, as it sets out what we expect of you in this module. Bear in mind that merely memorising the contents of the study guide is not sufficient. You must also consult your prescribed books. Certain parts of the work which you must study for the examination are not discussed in the study guide but only in your textbook. You have to study these parts of the syllabus in the abovementioned book. In the course of the discussions in the study guide, we refer you to those parts of the book which you must study. Furthermore, if the discussion of a certain topic in the study guide is not clear to you, it will probably become clear if you consult the discussion of that particular topic in the prescribed works.

EVI3701/101/3/2017

9

7 HOW THE EXAMINATION SYSTEM WORKS 7.1 Admission to the examination

You must submit two compulsory assignments during the semester for which you are registered. If you are registered for the first semester, you must submit the first semester’s assignments only. If you are registered for the second semester, you must submit the second semester’s assignments only. Both assignments contribute to your semester mark.

NB! PLEASE NOTE THAT YOU MUST SUBMIT THE FIRST ASSIGNMENT IN ORDER TO GAIN ENTRANCE TO THE EXAMINATION. All students who submit the first compulsory assignment in time (before or on the date of submission) will be admitted to the examination, regardless of the mark obtained. In other words, a student who submitted the first assignment but obtained 0% will still be allowed to sit for the examination. Students who do not submit the first compulsory assignment before or on the due date will not receive admission to write the examination, irrespective of whether or not they submit the second compulsory assignment thereafter. The two compulsory assignments (10% each) will comprise 20% of your final mark.

7.2 Examination period

EVI3701 is a semester module. This means that if you are registered for the first semester, you will write the examination in May/June 2017 and the supplementary examination in October/November 2017. If you are registered for the second semester, you will write the examination in October/November 2017 and the supplementary examination in May/June 2017. During the course of the semester, the Examination Section will send you information regarding the examination in general, examination venues, examination dates and examination times.

7.3 Examination paper

At the end of the semester you will write one two (2)-hour paper. This paper counts 100 marks and contributes 80% towards your final mark. Please note that, irrespective of your semester mark obtained, you must obtain at least 40% in the examination in order for your semester mark to be taken into account for your final mark.

7.4 Previous examination papers

You may accept that examination questions will be similar to the questions asked in the activities in your study guide and in the assignments. The assignments also contain questions from previous examination papers. These will give you a good idea of the way examination questions are formulated. You will be given feedback on these questions in a following tutorial letter, and that will indicate how such questions should be answered. Previous examination papers are also available on myUnisa.

10

7.5 Supplementary examination and the semester mark

Please note that should the University grant you a supplementary examination, your semester mark will not count towards your final mark. In other words, your examination will count 100% of your final mark and you will have to achieve a mark of at least 50% in the supplementary examination to pass this module. However, this arrangement will not affect students who write the aegrotat (sick) examination. In other words, students who for health reasons are unable to write the examination and have a medical certificate to prove it, will be in the same position as students who wrote the examination. Their semester mark will constitute 20% of their final mark.

7.6 Tutorial letter with information on the examination

To help you in your preparation for the examination, you will receive a tutorial letter which will explain the format of the examination paper and set out clearly what material you have to study for examination purposes.

8 HOW THE ASSIGNMENT SYSTEM WORKS 8.1 General remarks

Assignments should be addressed to: The Registrar PO Box 392 UNISA 0003

You may submit written assignments and assignments done on mark-reading sheets either by post or electronically via myUnisa. Assignments may not be submitted by fax or e-mail. For detailed information and requirements as far as assignments are concerned, see the booklet Study@Unisa, which you received with your study material.

To submit an assignment via myUnisa, do the following: ■ Go to myUnisa. ■ Log in with your student number and password. ■ Select the module.

■ Click on Assignments in the left-hand menu.

■ Click on the assignment number you want to submit.

■ Follow the instructions on the screen.

8.2 Commentaries and feedback on assignments

Commentaries on compulsory assignments will be sent to all students registered for this module in a follow-up tutorial letter, and not only to those students who submitted the assignments. Please check your answers as soon as you receive the commentaries. The assignments, and the commentaries on these assignments, constitute an important part of your learning and will help you to be better prepared for the next assignment and the examination.

EVI3701/101/3/2017

11

8.3 Submission dates

The closing dates for the submission of the two compulsory assignments are: First semester: ■ 10 March 2017 – Assignment 01

3 April 2017 – Assignment 02 Second semester: ■ 18 August 2017 – Assignment 01

08 September 2017 – Assignment 02

Please note that the closing dates for assignments are the dates when assignments must reach Unisa.

8.4 Cooperation between students

Please note: Although students may work together when preparing assignments, each student must write and submit his or her own individual assignment. In other words, you must submit your own ideas in your own words, sometimes interspersing relevant short quotations that are properly referenced. It is unacceptable for students to submit identical assignments on the basis that they worked together. That is copying (a form of plagiarism) and none of these assignments will be marked. Furthermore, you may be penalised or subjected to disciplinary proceedings by the University. For general information and requirements as far as assignments are concerned, see the brochure Study@Unisa, which you received with your study material.

12

9 THE ASSIGNMENTS

This section contains the two compulsory assignments which have been set for this module. The first assignment contains essay questions, similar to the ones you can expect in the examination. The second assignment consists of multiple-choice questions.

9.1 FIRST SEMESTER: COMPULSORY ASSIGNMENT 01 Closing date: 10 March 2017 Unique assignment number: 592415 Please note that this assignment is compulsory for students registered for EVI3701 in the FIRST SEMESTER. It is the first compulsory assignment for the FIRST SEMESTER. You have to submit this assignment on time in order to obtain admission to the examination in May/June 2017. Do not delay completing the assignment. The onus to ensure that it is submitted on time rests with you.

This assignment consists of a problem question. Consult the booklet Study @ Unisa regarding requirements for submitting the assignment. Substantiate your answers and refer to decided cases, where relevant. In determining the length of your answers you should be guided by the marks allocated to each subdivision.

Please note that problem questions should always be answered with the following guidelines in mind:

■ Identify and state the central issue of a particular question. This should be done with

reference to the facts of the question and a definition. Always consider that more than one issue could be involved.

■ Always give a definition of the particular concept or type of evidence you have

identified. ■ State the general rule regarding admissibility or the type of evidence and mention all

the exceptions. ■ Discuss the relevant exception or give a general discussion of the law applicable to

the specific issue involved. The marks set at a specific question will be the best indication of the amount of information you should give. Never forget to discuss cases and legislation.

■ Give a motivated conclusion with reference to the facts of the question.

EVI3701/101/3/2017

13

QUESTION:

A suspect in police custody makes a statement to the arresting officer, Mr Mhlongo. He alleges that he punched Ndhlovu full of holes without paying attention as to where he was inserting his knife, so that in future, when Ndhlovu thought of taking other people’s beers, he would think twice. Mr Ndhlovu took his friend (Mr Litako)’s beer and drank it all while Litako went to the bathroom. As the suspect was looking after Litako’s beer, he then knifed Ndhlovu, as he explained. While relating his story to Mhlongo, Litako was present and listening. The suspect is subsequently charged of murdering Ndhlovu. (1) Define the suspect’s statement to Mr Mhlongo. Consider the principle in S v Yende 1987

(3) SA 367 (A) in your discussion. (5) (2) Fully discuss, with reference to decided cases, the admissibility of the suspect’s

statement to Mr Mhlongo. (5) (3) The prosecutor wants to call Litako to come and testify as to the truth of the statement.

Explain the possibility that the defence counsel would object to this type of evidence. (5) (4) Under what circumstances would a similar type of evidence as Litako’s be admissible?

Refer to relevant case law. (5)

14

9.2 FIRST SEMESTER: COMPULSORY ASSIGNMENT 02 Closing date: 3 April 2017 Unique assignment number: 827784 Please note that this assignment is compulsory for students registered for EVI3701 in the FIRST SEMESTER. It is the second compulsory assignment for the FIRST SEMESTER. Assignment 02/2017 contains multiple-choice questions. It consists of a number of statements, with a number of possible answers. You have to select the correct answer and enter it on the mark-reading sheet. For the completion of Assignment 02/2017, see the relevant section of the booklet Study @ Unisa. It is most important that you use an HB pencil. Remember that the mark-reading sheet is marked by computer and that you have to follow the instructions carefully to ensure that your assignment is marked correctly.

Also remember to enter the “UNIQUE ASSIGNMENT NUMBER” in the relevant space on the mark-reading sheet. Note that this assignment will serve as an overview of the entire study guide, as the relevant information might come from any of the chapters. Please note that the assignments for the two semesters are not the same and that you must ensure that you answer the questions for the semester for which you registered. Question 1 (a) If the current South African law does not provide a solution to an evidentiary problem, our

courts will first of all search for the answer in the early Roman-Dutch law. (b) Evidence obtained in a manner that violates the Constitution will always be inadmissible. (c) Substantive law indicates which procedure must be followed to prove a case. (d) The facts in dispute in a particular case are heavily influenced by the applicable

substantive law. Answer 1 (1) Only statements (a) and (b) are correct. (2) Only statements (a), (b) and (d) are correct. (3) Only statement (c) is correct. (4) Only statement (d) is correct. (5) All the statements are correct. Question 2 (a) A statement that was made without prejudice and in good faith can be disclosed if it

constitutes an act of insolvency. (b) A previous consistent statement will not be admitted even if it is relevant in supporting the

credibility of the witness. (c) Facts relevant to the facts in issue may become in issue themselves. An example would

be the reliability of a witness. (d) If all the parties to an issue agree to the admission of hearsay evidence, that evidence

will no longer be hearsay and consequently becomes admissible.

EVI3701/101/3/2017

15

Answer 2 (1) Only statements (a) and (c) are correct. (2) Only statements (b) and (c) are correct. (3) Only statements (a), (b) and (c) are correct. (4) Only statements (a), (c) and (d) are correct. (5) None of the statements is correct. Question 3 (a) During a trial, the court first has to consider the competency of a witness, then the

admissibility of evidence, and finally the weight or persuasive value of evidence. The weight of evidence therefore plays no part when the court considers the admissibility of that evidence.

(b) A finding by a court that a particular piece of evidence is inadmissible due to irrelevance is final and cannot be reconsidered during the course of the same trial.

(c) The accused, in trying to dispute the admissibility of a confession that was made while he or she was in detention, wants to present evidence that, on other occasions, the police have used improper means to get statements from him or her. This evidence is evidence about previous consistent statements.

(d) Similar-fact evidence can only be used by the state, since the law prohibits the accused from using similar-fact evidence to his advantage.

Answer 3 (1) None of the statements is correct. (2) Only statements (a) and (b) are correct. (3) Only statements (b) and (c) are correct. (4) Only statements (c) and (d) are correct. (5) Only statement (b) is correct. Question 4 (a) When evidence about someone’s character is important for purposes of the law of

evidence, the common law states that only evidence of the true nature of such a person may be presented.

(b) Section 197 of the Criminal Procedure Act 51 of 1977 protects an accused against answering certain questions during cross-examination, but this protection falls away where the accused is charged with the crime of receiving stolen property.

(c) In the case of an alleged offence of a sexual nature, evidence of a previous consistent statement will inter alia be admissible if the complaint was made at the first reasonable opportunity, but not later than 48 hours after the offence was committed.

(d) In S v Moti 1998 (2) SACR 245 (SCA), the court found evidence of a photo-identification to be admissible as an exception to the rule against the admissibility of similar-fact evidence.

Answer 4 (1) All the statements are correct. (2) Only statements (a) and (b) are correct. (3) Only statement (b) is correct. (4) Only statements (a), (c) and (d) are correct.

16

(5) Only statements (b) and (d) are correct. Question 5 Mr C testifies in court about the theft of his car. During cross-examination the defence alleges that he is lying. The prosecutor accordingly calls Mr W to come and testify that Mr C had earlier told him the same thing. Mr W’s evidence is (a) hearsay evidence. (b) evidence about a previous consistent statement. (c) admissible if it is presented to corroborate Mr C’s evidence. (d) admissible if it is presented to strengthen Mr C’s credibility. Answer 5 (1) Only statements (a) and (d) are correct. (2) Only statements (b) and (c) are correct. (3) Only statements (b) and (d) are correct. (4) Only statements (a) and (c) are correct. (5) Only statements (b), (c) and (d) are correct. Question 6 (a) If the measures that our courts have developed to ensure the accuracy of identification

parades have not been complied with, evidence of an identification during such a parade will necessarily be inadmissible.

(b) A number of principles have developed over time to ensure the fairness of an identification parade. One principle is that it is important that the people in the parade do not wear similar clothes.

(c) There is question of a previous consistent statement when, during testimony in court, a witness repeats a statement consistent with one made on a previous occasion, in order to corroborate his or her evidence.

(d) There is question of a previous consistent statement when a witness repeats a consistent statement made by another witness on a previous occasion, which serves as self-corroboration for the other witness.

Answer 6 (1) Only statements (a), (b) and (c) are correct. (2) Only statements (a) and (c) are correct. (3) Only statements (c) and (d) are correct. (4) Only statements (b) and (d) are correct. (5) All the statements are correct.

EVI3701/101/3/2017

17

Question 7 (a) Although a court has a discretion to allow hearsay evidence, this discretion will more

readily be exercised in criminal than in civil matters. (b) The court's approach in McDonald’s Corp v Joburgers Drive-Inn Restaurant 1997 (1) SA

1 (A) provides a good example of how the common law hearsay exceptions should be handled today.

(c) A statement made to a justice of the peace will in principle be a confession if the statement was made freely and voluntarily, while the declarant was in his sound and sober senses and without being unduly influenced to make the statement.

(d) When experts refer to textbooks while testifying in court, they must not merely convey the opinion of the writer of the textbook to the court, since that will constitute evidence of a previous consistent statement.

Answer 7 (1) None of the statements is correct. (2) Only statements (a) and (c) are correct. (3) Only statements (b), (c) and (d) are correct. (4) Only statements (c) and (d) are correct. (5) Only statement (d) is correct. Question 8 (a) If a witness in a civil case tells the court that something was admitted by another person,

such evidence will constitute hearsay evidence. (b) In criminal cases, formal admissions and confessions are normally confirmed and

reduced to writing by a magistrate before the accused appears in court. (c) A confession made to a justice of the peace must be confirmed and reduced to writing in

the presence of a magistrate or a peace officer in order to be admissible. (d) The accused points out the weapon that he used to kill his wife. His act of pointing out

can be described as an informal admission. Answer 8 (1) Only statements (a) and (d) are correct. (2) Only statements (a), (b) and (c) are correct. (3) Only statement (a) is correct. (4) Only statements (b) and (d) are correct. (5) Only statement (d) is correct. Question 9 (a) Privilege evidence is excluded because it is irrelevant. (b) The testimony given by a witness in a criminal case can never be used against him or her

in a subsequent criminal case if the presiding officer at the first proceedings did not inform such a person of his or her rights as a witness.

(c) According to S v Dlamini 1999 (2) SACR 51 (CC), any evidence given by an accused during a bail hearing can never be used against him or her in the main trial.

(d) Legal professional privilege falls away if a statement can prove the innocence of an accused.

18

Answer 9 (1) None of the statements is correct. (2) Only statements (a), (b) and (c) are correct. (3) Only statements (c) and (d) are correct. (4) Only statement (d) is correct. (5) Only statement (b) is correct. Question 10 (a) A spouse can claim marital privilege with regard to communications which were made

during the course of a marriage, even if the spouses are already divorced at the time the privilege is claimed.

(b) Marital privilege belongs to the party who made a specific communication. (c) Marital privilege belongs to the party to whom a specific communication was made. (d) If public policy requires that the identity of an informer be kept secret, this should be

done, even where informers themselves want to disclose their identity. Answer 10 (1) Only statements (a) and (c) are correct. (2) Only statements (b) and (d) are correct. (3) Only statement (a) is correct. (4) Only statement (d) is correct. (5) Only statement (c) is correct.

EVI3701/101/3/2017

19

9.3 SECOND SEMESTER: COMPULSORY ASSIGNMENT 01 Closing date: 18 August 2017 Unique assignment number: 723100 Please note that this assignment is compulsory for students registered for EVI3701 in the SECOND SEMESTER. It is the first compulsory assignment for the SECOND SEMESTER. Do not delay completing the assignment. The onus to ensure that it is submitted in time rests with you. This assignment consists of a problem question. Consult the booklet Study@Unisa regarding requirements for submitting the assignment. Substantiate your answers and refer to decided cases, where relevant. In determining the length of your answers, you should be guided by the marks allocated to each subdivision. Please note that problem questions should always be answered with the following guidelines in mind: ■ Identify and state the central issue of a particular question. This should be done with

reference to the facts of the question and a definition. Always consider that more than one issue could be involved.

■ Always give a definition of the particular concept or type of evidence you have identified.

■ State the general rule regarding admissibility or the type of evidence and mention all the exceptions.

■ Discuss the relevant exception or give a general discussion of the law applicable to the specific issue involved. The marks set at a specific question will be the best indication of the amount of information you should give. Never forget to discuss cases and legislation.

■ Give a motivated conclusion with reference to the facts of the question.

20

QUESTION:

The accused, a doctor, is charged with two counts of indecent assault on two female patients that allegedly took place while they were under hypnosis. The first count alleges that he had indecently assaulted a woman called Tshepang during a consultation on 21 August 2015. The second count alleges that he had indecently assaulted a woman called Majane on 02 September 2015. For reasons unrelated to the alleged indecent assault, Tshepang committed suicide before the start of the trial. Several months before her death she had, however, made a statement to the police about the alleged assault. She had also told two friends, Ken and Alan, that the accused had indecently assaulted her. The prosecution also obtained statements from three other witnesses who alleged that the accused had made improper suggestions to them while under hypnosis. From the start of the investigation, it is clear that the accused’s version is that both women are lying about the events in question. Fully discuss, with reference to decided cases, the admissibility of the following possible evidence: (1) Testimony by the three other witnesses who alleged that the accused had made

improper suggestions to them while under hypnosis. (5) (2) The admissibility of the hearsay statements Tshepang had made to Ken, Alan and to the

police. (4) (3) The admissibility of evidence given by witnesses who tell the court that Majane had also

made previous statements to them about the alleged indecent assaults. (4) (4) Evidence given on behalf of the accused by witnesses who testify about his good

character. (3) (5) Evidence given on behalf of the accused by witnesses who testify about the character of

Tshepang and Majane. (Discuss in terms of section 227 of the Criminal Procedure Act 51 of 1977.) (4)

EVI3701/101/3/2017

21

9.4 SECOND SEMESTER: COMPULSORY ASSIGNMENT 02 Closing date: 08 September 2017 Unique assignment number: 881308 Please note that this assignment is compulsory for students registered for EVI3701 in the SECOND SEMESTER. It is the second compulsory assignment for the SECOND SEMESTER. Assignment 02/2017 contains multiple-choice questions. It consists of a number of statements, with a number of possible answers. You have to select the correct answer and enter it on the mark-reading sheet. For the completion of Assignment 02/2017, see the relevant section of the booklet Study @ Unisa. It is most important that you use an HB pencil. Remember that the mark-reading sheet is marked by computer and that you have to follow the instructions carefully to ensure that your assignment is marked correctly. Also remember to enter the UNIQUE ASSIGNMENT NUMBER in the relevant space on the mark-reading sheet. Note that this assignment will serve as an introduction to the entire study guide, as the relevant information might come from any of the chapters. However, it is not necessary to read those sections in the chapter not pertaining to the relevant question. Please note that the assignments for the two semesters are not the same and that you must ensure that you answer the questions for the semester for which you registered.

Question 1 In Hlongwane v Rector, St Francis College 1989 (3) SA 318 (D), the court indicated the following considerations which favoured the exclusion of the hearsay evidence: (a) The probative value of the hearsay evidence. The hearsay was corroborated by various

other pieces of evidence. (b) The nature of the proceedings, the nature of the evidence and the purpose for which the

evidence was tendered. (c) The reason why the person on whose credibility the evidence depended did not testify,

namely intimidation and fear of reprisals. (d) The fact that the admission of the hearsay evidence would bring the issue to a close. Answer 1 (1) Only statement (a) is correct. (2) Only statements (b), (c) and (d) are correct. (3) Only statement (b) is correct. (4) Only statements (b) and (d) are correct. (5) None of the statements is correct.

22

Question 2 (a) In the case of a residuary clause, our courts have to determine what the English law

entailed immediately before South Africa became a republic in 1961. (b) Roman-Dutch law is the common law of South Africa and therefore constitutes the

historical source of our substantive and formal law. (c) In terms of section 35(1) of the Constitution, every arrested person has the right to

adduce and challenge evidence. (d) A finding by a court that a particular piece of evidence is inadmissible due to irrelevance

is final and cannot be reconsidered during the course of the same trial. Answer 2 (1) Only statement (a) is correct. (2) Only statements (a), (b) and (c) are correct. (3) Only statements (c) and (d) are correct. (4) Only statements (a) and (d) are correct. (5) All the statements are correct. Question 3 (a) A person is charged with fraud in that he or she made a false statement to a financial

institution. Evidence that this person has, on previous occasions, made similar false statements to other financial institutions, is hearsay evidence.

(b) A person is charged with fraud in that he or she made a false statement to a financial institution. Evidence that this person has, on previous occasions, made similar false statements to other financial institutions, is evidence about previous consistent statements.

(c) The accused, in trying to dispute the admissibility of a confession made while he or she was in detention, wants to tender evidence that, on other occasions, the police have used improper means to get statements from him or her. This evidence is evidence of previous consistent statements.

(d) The accused is charged with dealing in dagga. The fact that the accused has previously been convicted of dealing in dagga is hearsay evidence.

Answer 3 (1) Only statement (a) is correct. (2) Only statement (b) is correct. (3) Only statement (c) is correct. (4) Only statements (c) and (d) are correct. (5) None of the statements is correct.

EVI3701/101/3/2017

23

Question 4 (a) A similar fact may be distinguished from a previous consistent statement in that a similar

fact will seldom, if ever, take the form of a statement. (b) Similar-fact evidence can only be used by the state, since the law prohibits the accused

from using similar-fact evidence to his advantage. (c) Section 197 of the Criminal Procedure Act 51 of 1977 protects an accused against

answering certain questions during cross-examination, but this protection falls away where the accused gives evidence against any other person charged with the same offence or an offence in respect of the same facts.

(d) When evidence about someone’s character is important for purposes of the law of evidence, the common law states that only evidence of the general reputation of such a person may be presented.

Answer 4 (1) Only statements (a) and (b) are correct. (2) Only statement (c) is correct. (3) Only statements (a), (c) and (d) are correct. (4) Only statement (d) is correct. (5) All the statements are correct. Question 5 Section 35(5) of the Constitution reads as follows: (a) “Evidence obtained in a manner that violates any right in the Bill of Rights can be excluded

if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.”

(b) “Evidence obtained in a manner that violates any right in the Bill of Rights should be excluded if the admission of that evidence would be detrimental to the administration of justice or otherwise render the trial unfair.”

(c) “Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.”

(d) “Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair and also be detrimental to the administration of justice.”

Answer 5 (1) Only statement (a) is correct. (2) Only statement (b) is correct. (3) Only statement (c) is correct. (4) Only statement (d) is correct.

24

Question 6 (a) In the case of an alleged offence of a sexual nature, evidence of a previous consistent

statement will inter alia be admissible if the complaint was made at the first reasonable opportunity, but not later than 48 hours after the offence was committed.

(b) A number of principles have over time developed to ensure the fairness of an identification parade. One principle is that it is important that the people in the line-up do not wear similar clothes.

(c) There is question of a previous consistent statement when, during testimony in court, a witness repeats a statement consistent with one made on a previous occasion, in order to corroborate his or her evidence.

(d) There is question of a previous consistent statement when a witness repeats a consistent statement made by another witness on a previous occasion, which serves as self-corroboration for the other witness.

Answer 6 (1) Only statements (a) and (c) are correct. (2) Only statements (b), (c) and (d) are correct. (3) Only statement (c) is correct. (4) Only statements (c) and (d) are correct. (5) Only statement (d) is correct. Question 7 In the course of a civil matter, the plaintiff wants to present the record of a witness’ testimony in a criminal trial based on the same facts, as evidence against the defendant. Consider the following statements: (a) The evidence is hearsay evidence. (b) The evidence is opinion evidence. Later in the same civil matter, the plaintiff wants to furnish the court’s finding in the previous criminal matter as evidence in the civil matter. (c) The evidence is admissible hearsay evidence. (d) The evidence is admissible opinion evidence. Answer 7 (1) Only statement (a) is correct. (2) Only statements (b) and (d) are correct. (3) Only statements (a) and (d) are correct. (4) Only statement (d) is correct. (5) Only statements (b) and (c) are correct.

EVI3701/101/3/2017

25

Question 8 (a) If a witness in a criminal case tells the court that something was admitted or confessed

by a non-testifying accused, such evidence – strictly speaking – amounts to hearsay evidence.

(b) Hearsay evidence consists of oral evidence about that which a witness previously heard and wants to testify about in court. Hearsay can therefore never be in a written form.

(c) The court's approach in McDonald’s Corp v Joburgers Drive-Inn Restaurant 1997 (1) SA 1 (A) provides a good example of how the common law hearsay exceptions should be handled at present.

(d) Although a court has a discretion to allow hearsay evidence, this discretion will more readily be exercised in criminal than in civil matters.

Answer 8 (1) Only statement (a) is correct. (2) Only statements (a), (b) and (d) are correct. (3) Only statements (a) and (c) are correct. (4) Only statement (b) is correct. (5) Only statements (b) and (d) are correct. Question 9 (a) A statement that contains a defence can never be a confession. (b) A confession can only be used as evidence in court if it was also reduced to writing at the

time it was made. (c) If an accused gives evidence about a statement which is to his or her advantage and

which forms part of an inadmissible confession, the otherwise inadmissible confession might become admissible.

(d) If you make a confession to a friend (who is not also a peace officer), evidence about that confession will be inadmissible, unless your friend is also a justice of the peace.

Answer 9 (1) Only statements (a) and (c) are correct. (2) Only statements (a) and (d) are correct. (3) Only statement (d) is correct. (4) Only statements (b) and (c) are correct. (5) All the statements are correct.

26

Question 10 The investigating officer takes A, the accused in a murder case, to a place in the bush where A points out a pistol. “This is the pistol”, he declares. Ballistic tests confirm that the pistol was used to kill the deceased. A’s behaviour (not his statement) is (a) a formal admission. (b) an informal admission. (c) an informal admission by conduct. (d) a confession by conduct. Answer 10 (1) Only statement (a) is correct. (2) Only statement (b) is correct. (3) Only statement (c) is correct. (4) Only statement (d) is correct. (5) None of the statements is correct.

This brings us to the end of this tutorial letter. We hope that you will enjoy this module, and wish you success with your studies.

PROF SS NEL ADV M MONYAKANE