English Notes 113 2011

CLS cc © English Notes

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Critical Law Studies cc ©

ENGLISH FOR LAW STUDENTS:

ESSAY WRITING

Define an argument ....consists of opposing views, therefore you must make quite clear which points you are arguing for and which against. ....consists of logical links expressed by words such as because, therefore, however, etc ....makes use of statements, questions and conditionals to move forward and not in circles or from one irrelevant point to the nest. Argumentative writing Step 1: GETTING STARTED

Read the question or thesis statement very carefully to make sure that you understand what the adjudicator is requesting of you.

Think of a good introduction –statement stating basically what your essay will be about (your thesis).

Plan a rough draft of your ideas so as not to leave any out.

Step 2: ORGANIZING FACTS, OPINIONS AND SOURCES

Place your rough ideas in order, use sub-headings to guide you, e.g. the problem, legislation, arguments, justifications and conclusion.

Use connecting words to join ideas.

Step 3: DRAWING THE THREADS TOGETHER

Conclude your arguments. Revise your writing:

Global revision: Did you:

o Write on the topic? o Introduce your argument? o Use paragraphs? o Link ideas? o Conclude your argument?

Language revision: o Check punctuation, connectors, spelling, tense

Style review: o Check numbering, headings and references

Counter arguments

This is the opposing view or argument.


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When you counter someone’s thesis, you need to attack both the thesis and the evidence, using structures of reason, contrast and purpose.

You need to engage each element of the original statement and bring evidence to prove it.

Look at the weak aspects of the statement, introduce new evidence and then come to a conclusion that is in opposition to the original statement.

When writing an essay, keep in mind the following: o Plan your essay – rough scheme o Structure an introduction, body and conclusion o In the introduction you basically state what your essay will be

about o The body of your essay should consist of the main aspects of

your argument – use new paragraphs for each new idea. o Include authority in the form of case law or academic opinions o The conclusion of your essay is very important as it sums up

your entire argument.

REMEMBER:

An essay must include your opinion, which you must give justifiable reasons for each particular point of view.

You must also argue the topic from different perspectives and give valid reasons for such views (think out the box!!!!!)

You need to justify every point made in your essay.

READING AND UNDERSTANDING A CASE

TSHABALALA v NATAL LAW SOCEITY NATAL PROVINCIAL DIVISION HOWARD JP and LEVINSOHN J 1995 November 10 Case No 2107/95 Attorney – candidate attorney – irregular service – relief in terms of s13(2) of Attorneys Act

52 of 1979 – court not empowered to regularise service which was not preformed under articles or contract of service as defined in s1 of the Act.

Statute – Interpretation of – change of expression – effect – employment of different language

to express substantially same idea irrelevant – mere fact that legislature more economical in use of language not signifying change of intention.


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TSHABALALA v NATAL LAW SOCEITY

1996 (4) SA 150 HOWARD JP NPD Section 13(2) of the Attorneys Act 53 of 1979 does not empower the court to regularise

service by a ‘candidate attorney’ which was not preformed under articles of clerkship or a contract of service as defined in s1 of the Act. The language of the subsection is clear and unequivocal: it is irregular service as candidate attorney that the court may regularise, not irregular service generally.

Ex Parte Edwards not approved and not followed. The fact that the legislature, in re-enacting a statutory provision, employed different language

to express substantially the same idea which was re-enacted of s19(1) of the Act is irrelevant. The mere fact that the legislature has been more economical in its use of language does not signify a change of intention.

The following decided cases were cited in the judgment of the court Bosman v Prokureursode van Transvaal 1984 (2) SA 633 (T) Ex Parte Edwards and Another 1995 (1) SA 451 (C) Ex Parte Singer: Law Society, Transvaal, Intervening 1984 (2) SA 757 (A) The following statutes were considered by the court: The Attorney’s Act53 of 1979, ss1, 13(2) The Attorneys, Notaries and Conveyancers Admission Act 23 of 1934, s 19(1) Application for an order declaring that certain service by the applicant was regular service as a candidate attorney. The facts appear from the judgment of Howard JP D J Shaw QC for the applicant C P Hunt for the respondent Howard JP: At the conclusion of the appointment we dismissed this application with costs. These are our reasons for doing so: During the period from 1 July 1994 to 10 July 1995, the applicant was employed as a ‘candidate attorney’ by Shepstone & Wylie, a firm of attorneys. This period of service was not rendered under articles of clerkship as defined in s 1 of the Attorneys Act, but pursuant to a letter of appointment which did not bind her to serve any particular attorney for any specified period in accordance with the Act. The letter of appointment stipulated that: ‘as soon as possible after your arrival at the firm you will sign a contract of articles of clerkship which will govern your and your principal’s specific professional obligations.’ It was not until 11 July 1995 that the applicant entered into articles. In terms thereof she bound herself to serve a partner of the firm as a ‘candidate attorney’ for a period of two years from 1 July 1995 to 10 July 1997. The stipulated period was two years because the applicant had become entitled to be admitted as an advocate, as envisaged by s2(1)(b) of the Attorneys Act. She became qualified to be admitted as an advocate during June 1995 when the Minister of Justice, acting in terms of s 2 of the Recognition of Foreign Legal Qualifications and Practice Act 114 of 1993, exempted her from the requirement referred to in s3(2)(a)(i) of the Admission of Advocates Act 74 of 1964. By virtue of provisions of s 9(1)(a) of Act 14 of 1993 she was thereupon deemed to have satisfied the requirements referred to in s 3(2)(a)(i). The applicant applied for an order that for purpose of her admission as an attorney the period of service from 1 July 1994 to 10 July 1995, when she was


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employed pursuant to the letter of appointment, is to be regarded as having been served under articles of clerkship duly registered in terms of the Attorneys Act. Counsel for the applicant, Mr Shaw, submitted that the court could grant an order to this effect by virtue of the provisions of s 13(2) of the Attorneys Act, which reads: ‘If any person has not served regularly as a candidate attorney, the court, if satisfied that such irregular service was occasioned by sufficient cause, that such service is substantially equivalent to regular service, and that the society concerned has had due notice of the application, may permit such person, on such conditions as it may deem fit, to apply for admission as an attorney as if he had served regularly under articles or a contract of service.’ I accept for the purposes of this judgment that the applicant’s failure to perform the service in question under articles was occasioned by sufficient cause, and that such service was substantially equivalent to regular service under articles. The only question for decision is whether s 13(2) empowers the court to regularise service which was not performed under articles or contract of service as defined in s1. In my view, it manifestly does not. The language of the subsection is clear and unequivocal: it is irregular service as a candidate attorney that the court may regularise, not irregular service generally. If there were any doubt about this a reference to the (signed) Afrikaans text would dispel it. That provides: ‘Indien iemand nie gereeld diens as kandidaat-prokureur verrig het nie, kan die hof....’ Section 1 provides that in this Act, unless the context otherwise indicates, ‘candidate attorney’ ‘means any person bound to serve under articles of clerkship or to perform community service under a contract of service.’ It follows that irregular service, within the meaning of s 13(2), is irregular service under articles or a contract of service as defined. This was the construction placed on s 13(2) by the full bench of the Transvaal Provincial Division in Bosman v Prokureursode van Transvaal, and again in Ex Parte Singer: Law Society, Transvaal, Intervening which was confirmed on appeal and reported in 1984. When these cases were decided the English text of s 13 was the same as it is now, save that it referred to irregular service as ‘an articled clerk’. In contending for a different construction, Mr Shaw was constrained to rely solely on the judgment of Farlam J(Van Niekerk J concurring) in Ex Parte Edwards and Another. In that case the applicants sought an order in terms of s 13(2) to regularise service which was not rendered under articles. Counsel for the law society submitted that on the plain wording of s 13(2) an applicant seeking relief there under must have served, albeit irregularly, as a candidate attorney, ie under articles. Farlam J rejected this submission for reasons which appear at 454B-H: ‘ I do not agree with Mr Binns-Ward’s submission that the wording of s 13(2) of the Act is “plain”. In my view, it is ambiguous, the ambiguity flowing from the fact that it is not clear what words are governed by the word “not”; do those words include the words “as a candidate attorney” or does the word “not” only govern the words “served regularly” so that only a candidate attorney can apply for relief under this section?’ In answering this question it is helpful to refer – as Mr Viljoen who appeared together with Mr Van Eeden for applicants urged us to do – to s 19(1) of the previous Act, Attorneys, Notaries and Conveyancers Admission Act 23 of 1934, which section was the predecessor of s 13(2) of the present Act. Section 19(1) read: ‘Where any person articled to an attorney has not served under such articles strictly in accordance with the provisions of the Act, the court, upon being satisfied that such irregular service was occasioned by sufficient cause, and that such service although irregular, is substantially equivalent to regular service, and that the law


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society concerned has had due notice of the application, may, subject to the provisions of clause 6 of the First Schedule, permit such person, upon such conditions as it may deem fit, to present his petition for admission as an attorney in the same manner as if the service in question had been regular and in conformity with the provisions of this Act.’ (The emphasis is mine) The equivalent of the words I have emphasised in s 13(2) of the present Act is the expression “any person”. As was said by the Appellate Division in Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd 1947: ‘in the construction of statutes a deliberate change of expression is prima facie taken to import a change of intention.’ The change of wording in the present case is, in my view, a strong indication that Parliament did not intend s 13(2) of the present Act to be limited in its operation to service by persons already articled.’ I find myself in respectful but total disagreement with these views. The perceived ambiguity does not exist. The meaning is the same whether the word ‘not’ governs the entire phrase ‘served regularly as a candidate attorney’ or only the words ‘served regularly’. Either way, it is service as a candidate attorney that is postulated. The word ‘not’ obviously governs the entire phrase, but unless one ignores the words ‘as a candidate attorney’s 13(2) cannot be construed to cover irregular service by persons other than candidate attorneys. If my interpretation of s 13(2) is correct, the fact that the legislature employed different language to express substantially the same idea in s 19(1) of Act 23 of 1934 is irrelevant. The mere fact that the legislature has been more economical in its use of language does not signify a change of intention. In any event, I consider that we are bound by the judgment of the Appellate Division in Signer’s case supra to hold that s 13(2) is limited in its operation to irregular service under valid articles or a valid service contract in the case of a candidate attorney performing community service. Ex Parte Edwards and Another (Supra) Farlam J purported to distinguish Signer’s case on the following basis (at 455): ‘I do not find the case of Mr Binns-Ward cited by the analogy, Ex Parte Singer, of any assistance in the present matter. It was a case of legal disqualification. I can readily understand how it is that a person who is not legally qualified to enter into a contract of articles cannot be heard to say that his service was substantially equivalent to regular service. But considerations of that kind do not arise here. Both first and second applicant were legally qualified to enter into a contract of articles, as a principal and as a clerk respectively.’ As Mr Shaw observed, the learned Judge might usefully have added that, although qualified to do so, the first and second applicants never did enter into a contract of articles. In Singer’s case the irregular service was rendered pursuant to articles which were null and void because the applicant entered into them at a time when he was still enrolled as an advocate. The court held, that s 13(2) could not be invoked to regularise this service, not simply because the applicant was not legally qualified to enter into the articles, but because the service was ‘wholly ineffectual, having been rendered pursuant to a “contract” which was void and therefore unproductive of legal consequences’. In other words, the service was not service under articles. A fortiori, where no articles are entered into, purported service as a candidate attorney is not service under articles. In my respectful opinion, the case of Ex Parte Edwards and Another (supra) was wrongly decided and should not be followed.


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Levinsohn J concurred Applicant’s Attorneys: Shepstone & Wylie, Durban Respondent’s Attorneys: Von Klemperer, Davis & Harrison Words and their meanings Plaintiff and Defendant civil case State and Accused criminal case Applicant ex parte case - application Appellant and Respondent an appeal Held decided To deny an application not to allow an application to appeal etc To deliver judgment the judge gives his decision To award damages the “plaintiff” wins – find in favour of plaintiff The decision confirmed uphold the decision of the previous court Court a quo court of 1st instance Entitled to can get Reciprocal obligation 2 obligations (2 performances) Obiter dictum remarks in passing Cur adv vult the court wishes to consider its verdict V versus LTD limited JA judge of appeal AJA acting judge of appeal JP judge president A case reported in the law reports always contain certain key elements:

The name of the case The court by which the case was heard The name(s) of the judge(s) The date(s) of the hearing Key concepts of the case The headnote containing the facts and legal principles decided in the

case What the case is about The names of the legal representatives for the different parties The date on which judgment was given The facts of the case The law applicable Analysis of authorities

Where a case is heard before the court of 1st instance, it included:

obiter dicta the order the names of the attorneys in the case


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When the case is heard on appeal:

obiter dicta the order of the court of 1st instance the order of the court in the appeal the names of the attorneys / advocates in the case

FINDING A CASE IN THE LIBRARY

S v MAKHATINI 1995 (2) BCLR 226 (D)

S v MAKHATINI - the parties names 1995 - the year in which it was heard (2) - the volume number of the law report BCLR - the law report in which you can find the case

(Butterworths Constitutional Law Reports) 226 - the page on which the case begins (D) - the court in which the case was heard (Durban HC)

There is hardly time to read the entire case, make sure you can divide a case into the relevant “sections” and skim-read for answers using key words.

If you are unsure of the answer in the multiple choice, work by process of illumination.


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ENGLISH LANGUAGE

Definitions and examples of basis language

1) Nouns: these are names given a) Proper nouns: these are names of something specific – e.g. persons

name (Sam), name of a town, etc. b) Common nouns: these are things that are common to everyone –

e.g. tables, chairs, girls, cars, etc. c) Abstract nouns: these are things that one cannot use their five

senses to determine, they are feelings – e.g. love, anger, etc. d) Common nouns: these are names given to certain groups – e.g.

litter of puppies, a pile of books, etc. 2) Adjectives: these are words which describe nouns – e.g. brown,

happy, etc. 3) Verbs: these are doing words – e.g. run, speak, etc. 4) Adverbs: these are words which describe the verb – e.g. sadly, softly,

etc. 5) Prepositions: this is where something is / indicates the relation of

objects, ideas etc. a) Preposition of time: to, since, until, before, at, on, after etc. b) Preposition of place: across, along, behind, above, by, on, etc.

Exercise

Complete the sentences by filling in the correct preposition where necessary.

a) He will take you to court for breach of contract. b) You will get involved in a court case. c) The lawyer was engaged in negotiation on their return to the country. d) The prisoner was remanded into custody. e) The union entered into wage negotiations. f) The court gave judgment on the matter. g) The buyer’s signature was added to the contract. h) The contract should have been signed in the presence of the judge. i) The courthouse is around the corner from the police station. j) A fight took place between the witness and the accused. k) The woman was raped while she was standing at the bus stop. l) He was walking away from his attacker when he was killed. m) The forensic pathologist looked at the blood sample under a microscope. n) I found the murder weapon under the bed upon which the victim was

lying. o) He said the court will be adjourned until three o’clock. p) The clerk was late for work on Tuesday. q) You must have your summary of the case ready by Wednesday. r) The witness testified that he finished the work in a short period of time. s) They are both parties to the contract. t) He was arrested on a charge of murder. u) She is suspected of helping a convicted felon to escape.


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6) Pronouns: these are words which replace the noun – e.g. his, she, it, etc. It is important that when you change a noun into a pronoun, the pronoun must agree with the noun – male/female, singular/plural, the correct tense, etc. Relative pronouns:

WHEN TALKING ABOUT CLAUSE TO USE

People Who

Things Which, that

Places Where

Possession Whose

Exercise Choose from the following pronouns to fill the gaps in the sentences He, she, it, they, himself, herself, itself, themselves, his, her, its, their

a) This course does not deal with creditor’s rights, since they are dealt with in other courses.

b) The legislature has the right to exercise its powers and this includes the exercise of any discretion vested in it.

c) The appellants had to avail themselves of the opportunity to show the court the effect of squatting on their land.

d) The court made its decision on the basis of the owners inability to produce his /her bill of sale.

e) Economic, social and political changes forced the legislature to radically change its attitude towards the homeless.

Substitute pronouns for the underlined nouns.

f) The facts of the case are as follows: M, a successful male nurse, married D, a surgeon, after M and D (they) had signed a pre-nuptial contract. D (she) had a successful practice which D (she) had built up over three years, whereas M (he) had just finished M’s (his) studies and had to pay back a big study loan. Three years after D and M’s (their) marriage M (he) had paid off one third of M’s (his) loan and D’s (her) practice had doubled the practice’s (its) income. M felt neglected and M (he) started an affair with one of M’s (his) fellow nurses. D found out and D (she) forced M (him) to move out of D and M’s (their) house and instituted divorce proceedings. M now claims half of the value of D’s practice and insists that D (she) repays half of M’s (his) study loan.


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Say to which nouns the underlined pronouns refer.

g) If you sell land that might perhaps have potential to be developed as a holiday resort at a later stage, you would like that potential to be reflected in the sale price. Normally this (reflection of the potential sale price) would be done by raising the price of the land by a certain amount, but if the purchaser is not convinced of the potential for development she (the purchaser) might be unwilling to pay it (the potential purchase price). An alternative would then be to sell it (the land) for the normal price, excluding the possible potential for development, but to provide that the seller would be entitled to a share in the profit from such development, should it take place eventually. This provision for a share in the development would constitute a valid contract between the seller and purchaser, but it (the agreement) would create contractual creditor’s rights only, and these rights would be enforced against the purchaser only. If the purchaser sells the land to a new owner the contract would not be valid against her (new owner) as she (new owner) was not a party to the original contract. In order to secure the seller’s rights to receive part of the development profit against all later owners of the land the right has to be a real right which is registered against the title deed.

In the following sentences some pronouns have been used incorrectly. Decide which ones are wrong and improve the sentences.

h) In this case the court based their (its) decision on a balance of convenience. The Mulder Company will (would) suffer loss of market value of its property and it will not (would not) be able to meet their debts when they sell (sold) to Interstate Whitewashers. On the other hand, the interests of the general public and their right to information have (had) to be considered.

i) The dentist is entitled to remove her equipment from the practice as long as she does not cause damage.

j) Anybody could gain entry to the house and then they could help themselves to its context.

k) The court examined the meaning of the word ‘required’ and decided that they (it) had to be given a wider interpretation.

l) The ante-nuptial contract gave the wife control over her mother’s business, but he (she) could not manage the business without the expertise of his (her) husband.

m) Correct the following conversation if you think there might be a more suitable pronoun, but do not add nouns. Take care – not all the sentences are incorrect.

Simon and his friend Bongi are discussing current political changes. S: Not any (many) of these political reforms amount to much and

there are not (no) exceptions! B: There are not many people that would agree with you on that

point.


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S: Yes, if all agreed with me, something might change, but any (anyone) with a bit of money wants to cling to it desperately without consideration for the have-nots.

B: You’re ignoring the fact that more optimism about the economy might persuade anyone to invest their money, but few people are so stupid as to let go of their money when there is not the slightest chance of getting many (any) back.

7) Articles: these are found before the noun

a) Definite article: the b) Indefinite articles: a, an

8) Conjunctions / connectors: these words join sentences or ideas (and, when, etc), to contrast two ideas (but, in spite of, yet, however, etc.) or to give a reasoning to a statement (because, therefore, as, since, etc.)

Punctuation

1) Full stop (.): this is used to end a sentence or in abbreviations. 2) Eclipse dots (...): these are used to show the omission of a few

words. 3) Comma (,): this is used for a pause in the sentence. 4) (;): this is used in lists. 5) (:): this is used to start lists. 6) Quotation marks (“ “): these are used for direct speech. 7) Brackets ( ): these are used to add a thought or group ideas. 8) Question mark (?): these are used when asking a question – they are

also used in rhetorical questions (a question which does not need an answer)

9) Exclamation mark (!): this is used for expressions – shouting, something important, etc.

10) Apostrophe (‘): this can be used for omission (the leaving out of letters in words – e.g. is not = isn’t) or for possession (to show ownership – e.g. Stacy’s car, the lawyers’ books, James’s ring).

Root words

Where a word is difficult to understand, it is best to find the word from which this word was derived in order to formulate a definition. – e.g. irretrievable – ir=negative, retrieve=get, therefore =can’t get back / can’t fix OR legality = legal

Exercise

Correct the sentences below by placing the word in brackets in its correct form. a) The parties in this case are under (contract) (contractual) obligation to

inform each other of a change of address. b) The minister announced (regulate) (regulatory) measures until such time

as legislation has been (act) (enacted) by parliament.


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c) Under the general’s (dictate) (dictatory) rule the citizens of the country were (subject) (subjected) to countless house-to-house searches.

d) The contract can be (individual) (individualised) to (provision) (provide) for the (person) (personal) needs of each customer.

e) If you (want) (wanted) to raise a small loan, you (can) (could) use your movable property to provide security. Simon was in a difficult position: if he (want) (wants) to raise a small loan, he will have to provide his birthday watch as security. But what (will) (would) happen if he (lose) (lost) the bet and (can) (could) not repay the loan?

f) “If you (grant) (granted) your neighbour the right to use an access road over your farm, the neighbour (acquire) (acquires) the right to a certain limited use of your property.

g) In Ex Parte Geldenhuys, a husband and wife left in a mutual will a piece of land to their children in undivided shares. The question is whether the children’s rights are real or creditor’s rights. If they (are/were) creditor’s rights, they can only be enforced against a specific debtor, but if they (are/were) real rights, they can be enforced against any person. If the parents leave the land to only one child, there (will not be) (won’t) such a problem.

Re-arrange the following words into groups of words that are more or less similar in meaning or that belong to the same category.

Person 1 Regulates 2 Relation 1 Contract 3 Individual 1 Relationship 1 Dictates 2 Provisions 3 Acts 3 Determines 2 Subject 1 Party 1 Rights and duties 3 Match the two columns – words and their meanings 1 An asset A Not physical, intangible 2

2 Immaterial goods

B An unlawful act that cause harm or damage to someone

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3 A creditor C Physical 7

4 A delict D Relationship 5

5 The correlation between 2 thing

E Transportable 11

6 A bond F A right to use part of somebody else’s property

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7 A corporeal thing

G A person who is owed money 3

8 an immovable H Comprehensively 10


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thing

9 A lease I Possessions 1

10 To do something extensively

J A scheme to borrow money against a house or a land

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11 A movable thing K Something that is fixed 8

12 A servitude L A temporary lending of something against regular payments

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Change the following adjectives to the negative inCorporeal imMaterial imMovable ilLegal Try to form similar nouns with the following words. Use your dictionaries. Employ – employer – employee Lease – lessee – lessor Pay – payer – payee Credit – creditor Debit – debtor Grant – grantor – grantee Legate – legatee Complete the table

Noun Adjective Negative Adjective

Constitution constitutional Unconstitutional

Limit Limitable Unlimitable

Tolerance Tolerable Intolerable

Practice Practical Impractical

Difference Different Indifferent

In a few of the sentences the relative pronouns have been used incorrectly. Correct them.

a) The child that (who) appeared in court is my niece. b) That is the murderer, who killed the woman. c) I am going to consult with a lawyer that (who) is a specialist in divorce

settlements.


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d) This is the hotel where the man was shot, who abused his children. e) I studied every case which (that) I could get my hands on. f) Have you met the lawyer whom is going to defend you? g) That is the man whose advocate I am.

Synonyms and antonyms

A synonym is a word which has the same meaning as another and an antonym is a word that has a meaning opposite to another word. – e.g. understand (know) – misunderstand.

Nominalization

Where a writer uses nouns where they could use an active verb, adverb or adjective with only one verb. This is also when vague verbs are used (put, make, have, give and is). e.g. ‘...the court put emphasis on’ - should have been – ‘the court emphasied’

Exercise

• They have doubts about the reliability of...... They doubt • The court made a decision to...... the court decided • The judge is of the opinion that...... the judge’s opinion is • The lawyer gives advice on...... the lawyer advises • An important source for lawyers is the Lawyer’s Journal. In the index

reference is made to the most important judgments of each quarter. The lawyers journal is an important source for lawyers, where reference is made to the important judgments of each quarter.

• The judge put into doubt the wisdom of the establishment of children’s courts. The judge doubted

• The rules of the interpretation of statutes put emphasis on the establishment of clear and unambiguous meaning. ...statutes emphasised..

Conditionals

A sentence which expresses a condition usually starts with words that indicate the speculative nature of the message: if, unless, suppose, on the condition that,

Somewhere in the sentence, you will also find words that indicate uncertainty: may/might, will/would, can/could, shall/should.

Modal verbs: degrees of certainty and uncertainty

Modal verbs differ from other verbs as they do not usually stand alone in a sentence.

They change the meaning of the main verb slightly:


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o I must speak to you about these crimes. Strong obligation o I might speak to you about these crimes. Slight possibility o I ought to speak to you about these crimes. Moral obligation

The use of shall often presents problems and is used in formal written laws, such as statues, etc. Shall has more or less the same meaning as must but is much stronger. This word is used to indicate command, obligation or duty.

It is possible to make passive sentences with moral verbs: o They will send you to jail. (active) o You will be sent to jail. (passive) o They ought to pay advocates more money (active) o Advocates ought to be paid more money (passive)

Exercise Transform the following sentences into passive

a) The judge needs to impose a more severe sentence. A more severe sentence ought to be imposed by the judge.

b) The attorney will question the suspect. The suspect will be questioned by the attorney

c) You need to claim compensation for loss of income. Compensation ought to be claimed for loss of income

d) The witness ought to tell the truth. The truth ought to be told by the witness

e) The court must decide the issue. The issue must be decided by the court

Say whether the following are certain or uncertain

a) The advocate might win the case. uncertain b) The advocate will win the case. certain c) The advocate should win the case. uncertain d) The advocate may win the case. uncertain e) The advocate shall win the case. certain

Plain English

This is just taking a sentence which is formulated from difficult English language and words and reformulating it into an easy, understandable English sentence.

To do this it is best not to use jargon and colloquial slang. You need to simplify complex language to allow it to be easily

accessible and understandable to the general public. Ways of correcting this include:

o Breaking up of long, complicated sentences into shorter, simple ones.


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o Substitution of difficult words with words that are easier to understand.

o Redundancy: - the use of too many words to convey something which could have been done in fewer words.

Principles of legal writing (take the following advice into consideration): 1) Never use ten words where one will do. 2) Never use a big word where a small one will suffice. 3) Use simple sentences. 4) Never use Latin words where an English one will do. 5) Don’t repeat yourself. 6) Refer to your opponents arguments. 7) If a lay person can read the document from beginning to end

without falling asleep, the document is sufficient.

Tenses

1) Past: something that already happened. a) Simple past: this is used to indicate that something happened at a

definite past time and is no longer happening. – e.g. The legatee died before the legacy could pass to him.

b) Past perfect: this is also known as the double past tense. It is used to indicate that two actions happened in the past but that one of the actions finished earlier than the other. – e.g. After his daughter had decided to marry a convicted felon, the testator revoked his will. OR She had known who stole the will before the police told her.

2) Present: something that is currently happening. a) Simple present tense: this is something that happens regularly,

sometimes from time to time. The event happens in the present but not at a specific point. – e.g. A legatee always inherits a specific asset or amount of money.

b) Present perfect tense: this is used to describe an action which continues up to the present or which happened in the recent past. – e.g. The spouses have massed their estates. OR He has started drawing up his will.

c) Present continuous tense: this is used to show that something happened and will continue to happen for some time. – e.g. Anybody who has seen Jurassic Park remembers the scene where the Tyrannosaurus Rex grabs the lawyer.

3) Future: something that could happen / something which is expected.

Passives and actives

English sentences containing a subject, verb and object are either active or passive sentences.

The passive is not very common in informal speech or writing but is a regular feature in formal impersonal texts.

Passives are often used if the following place: notices, newspapers, textbooks, legal documents and statutes.


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Exercise Transform the following sentences into the passive.

a) The man paid maintenance to his ex-wife. The ex-wife was paid maintenance by the man

b) The Constitutional Court has decided to strike down the act. The act was struck down by the constitutional court

c) Parliament voted on the proposed bill amending the Abortion Act. The proposed bill amending the abortion act was voted on by parliament

d) Professional privilege protects interviews between patients and doctors. Interviews between patients and doctors are protected by professional privilege

e) The lawyer is challenging the new act in the High Court. The new act in the high court is being challenged by the lawyer

f) The president will pardon the prisoner next week. The prisoner will be pardoned by the president next week

Transform the following passive sentences into the active.

g) It is submitted that, as a matter of law, the decision is correct. As a matter of law, it is submitted that the decision is correct

h) That fact was attested to by all the witnesses for the state. All the state’s witnesses attested to the fact

i) It was decided that serial killers will no longer be granted parole. Parole will no longer be granted to serial killers

j) The reciprocal duty of support is ended by divorce. Divorce endsn the reciprocal duty of support

Manipulating language

Tone: this is closely linked with attitude. This refers to the way in which a person’s voice is modulated to express and emotion, such as joy or anger. A writers tone refers to the corresponding style in writing. – e.g. impatient, lively, despondent, suspicious, angry, disappointed, etc.

Emotion: is exploited in language in an attempt to convince the reader to make a decision based on emotion rather than reason. – e.g. love, apartheid, poverty, etc.


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Purpose: is the reason why the writer wrote something. A writer may aim to amuse, inform, criticise or even provoke an action.

Exercise

Place the apostrophe in the correct place in each of these sentences.

a) They‘re not going to find the will. b) We‘ve looked everywhere. c) We can‘t drive the car, were unable to find the keys. d) Didn‘t father put the keys with his will? e) I‘ve no idea, he could of put them anywhere. f) He‘s not always thinking you know. g) Go and look in John‘s room for the keys.

What are the meanings of the following words / phrases?

a) Acquitting b) Change c) Dispute d) Impoverished e) Pledge f) Downy pillow g) In lieu h) Misfortune i) Breached j) Ingenious k) Contended l) Neighing m) Decisively n) Legislative intent o) Contemplated p) A fortiori q) Rhetorical

Correct the following sentences where necessary

a) The lawyer found it difficult to make sense of what actually happened on the night of the murder because of (the fact that) his client told so many lies.

b) He told his client that it would be difficult to represent him on account (of) his lies.

c) The client countered that he was lying for (because) no one would believe the truth.

d) He said that he could not possibly have committed the murder that he was accused of since he had an alibi for that time.

e) Because (as) the hospital is very far from the murder scene, he could not have committed the murder.


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f) For the account of heavy traffic (due to heavy traffic), he could not have reached the murder scene in time.

g) The lawyer was very angry with his client for lying. h) Peter caught the early bus to the university so as to be there on time. i) Peter has to study hard so that (in order) to be a lawyer. j) Peter has to pay attention in class in order to understand the work. k) Peter listens carefully in order (remove in order) so that he understands

the ratio decidendi of the case. l) Peter’s friend takes notes to (in order to) study from them. m) Peter leaned over (so) as to examine his friend’s notes. n) Peter borrowed his friend’s notes (just) in case of his own notes were not

adequate.

ENGLISH ESSAY TYPE QUESTIONS [1] Write 200 to 250 words on the following topic: The crime of murder is punished by a wide range of different prison terms.

Compose an interesting and well-reasoned argument in which you discuss the factors you believe should reduce the penalty for murder and which factors should increase it.

[2] Write an interesting and well-planned essay of 1½ to 2 pages (about 350

words) on the role that intimidation plays in the legal system in South Africa.

[3] Write an interesting and well-planned essay of 1½ to 2 pages (about 350

words) on the role that corruption plays in the legal system in South Africa. [4] Write an argumentative essay of about 1½ 2 pages on the following topic

of driving under the influence of alcohol. Choose one of the following thesis statements to defend or oppose (or both) or formulate your own thesis statement.

a) Drunk pedestrians are a greater hazard than drunk drivers. b) Laws based on blood alcohol content are unfair to those who can take

their drink. c) Sober people who let a drunk person drive are more to blame for the

consequences than the driver him/herself. d) Write your own thesis statement on the topic of driving under the

influence of alcohol. [5] Theft of various kinds is rife in South Africa. Given the South African socio-

political context, many thieves feel justified in what they do. Write an essay of about 450 words (two pages) in which you present one or more arguments thieves might make in defence of their actions, followed by the case against theft.

[6] Write an argumentative essay of between 1½ to 2 pages (about 450

words) on the following topic:


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“Shopping has become the new religion.” Are we becoming a materialistic society? In a well reasoned essay,

discuss the validity of this statement. [7] Write an argumentative essay on one of the following topics. You must

adapt a point of view in support of your argument. Your essay must not be more than two pages in length.

a) Strike action is justified under certain circumstances. b) Capitalism is unfair. [8] Write a well reasoned argument of about 250 words on the topic of strike

action. You must decide which aspect of this topic to focus on. Her are some possibilities: Justifications for strike action How effective it is: does it achieve more than it sacrifices, or vice

versa? Limitations to strike action: what should be disallowed, and why? Strike action is tertiary education: should academic life be above

strike action? Once you have decided on a focus, express your point of view in a thesis statement. This can serve as a heading for your essay.

[9] Write an argumentative essay of about 250-300 words on one of the following topics.

i) In your opinion, what role do alcohol and drugs play in the activities of criminals? Should courts be more lenient or should they be harsher for offences and crimes committed while under the influence of such substances? Present both points of view. Consider crimes of varying seriousness and be specific in discussing sentencing.

ii) In your opinion how are South African police officers regarded as criminals on the one hand and as the law abiding public on the other? Give reasons for these perceptions and suggests ways to correct the negative perceptions.

iii) Some people feel that the South African Constitution and statutes do more to protect the rights of criminals than the rights of victims. If you think you are adequately informed on this debate, give both points of view on the contested rights of victims on the other.

[10] Write an essay in which you argue for and against polygamy (custom

of having more than one wife at a time). In the course of your essay you should also present the arguments against your point of view.

[11] Write an essay in which you argue the case both for and against the

banning of smoking in public places. It is important that you present both sides of the argument.


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[12] Should the father’s of illegitimate children have any legal rights regarding these children? Argue both sides of the questions.

[13] Explain what you think the relationships should be between customary

law and the Constitution. Give reasons for your argument. [14] Write an essay in which you argue for or against capital punishment.

EXAMPLE OF ACTUAL STUDENT ESSAY Capital Punishment Capital punishment in the sense of taking the life of a wrong-doer as retribution for his/her crime should be considered as an outmoded barbaric concept which has no place in today’s society. The right to life is an internationally recognized concept and should not be altered through national legislation. Medieval society accepted the death sentence because at that stage our development the law, ethics and morality were closely interwoven. The concept of “an eye for an eye” is also closely linked to the clause of retributive justice. Today the law is recognized as a neutral …………… that does not make value judgments or allows moral indignation over-rule justice. The application (or not) of capital punishment is seen in its social context and the legislators have to decide whether the finality of a death sentence is balanced by the consequences ….. society. Many studies have shown that the presence or not of legislation of capital punishment has little effect on the prevalence of serious crime. …..argument that the threat of a possible death sentence will deter the criminal has not been borne out in practice. In the USA certain ……… have retained the death penalty on the statue books. (Texas, as an example). The rate of serious crime across the nation as a whole does not show any lessening in the states where capital punishment is the option. Proponents of capital punishment point to South African recent history as justifying their claim that it does act as a deterrent. The incidence of serious crime has increased significantly since we abolished the death penalty. This is not however an argument which can stand up to close scrutiny. They are drawing conclusions based on an invalid premise. There are numerous factors besides the abolition of the death penalty which may (and probably do) affect the crime rate. Understaffing of police stations, increase in drug abuse, breakdown of family life, and an increase in poverty are factors which all contribute to the increase in crime. Finally the international community has placed “the right to life” at the top


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of the list of basic human rights. South Africa has followed the lead and has included this right in the Constitution (Act 108 of 1996). Since the Constitution is the supreme law of the land, it is unlikely that parliament will be able to counter this right easily. In summary, capital punishment does not reduce crime rate and flies in the face of current legal opinion, both domestic and international. Attention and energies should be diverted from this fruitless debate and given to more deserving causes such as poverty relief. Despite a couple of minor errors, this essay was given full marks.

CASE WORK QUESTIONS

MAKHUDU v DIRECTOR OF PUBLIC PROSECUTIONS a SUPREME COURT OF APPEAL Marais JA, Cameron JA and Mthiyane AJA 2001 February 16; March 16 b Trial - Record – Magistrate having given oral judgment which was not

contemporaneously recorded – Reviewing Court not entitled to approach matter afresh on the evidence – If reviewing Judge entertains doubts

about conviction he should call for magistrate’s reasons for judgment – only where the magistrate is unable to furnish his or her reasons can Court approach the matter afresh. c

Assault with intent to do grievous bodily harm – Sentence – Accused a policeman, first offender, who shot complainant, against whom he had laid a charge of crimen injuria, in charge office - Sentence of five years’

imprisonment imposed on appeal. d

The appellant, a sergeant in the South African Police Services, had laid a charge of crimen injuuria against the complainant. At the request of the investigating officer, the complainant reported at a police station but found that the investigating officer was not available. He was then asked to wait for him in one of the offices. While the complainant was waiting for his return, the e appellant entered the office and shot him twice, one above the left knee and once in the right hip. One of the bullets penetrated the right hip and remains lodge in the left pelvis, and was not removed because it was considered too dangerous to do so. After the shooting, one of the appellant’s colleagues took possession of the firearm and the com- plaintiff was removed to hospital. The appellant was charged in a regional court with attempted murder and f convicted of assault with intent to do grievous bodily harm and was sentenced to seven years’ imprisonment. An appeal against sentence to a Provincial Division failed, and leave to appeal was refused. With leave of the Supreme Court of Appeal, the appellant appealed against his sentence. g For purposes of the intermediate appeal the Court a quo accepted that the appellant was provoked because it considered that the appellant, a policeman of eight years’ standing, would not otherwise have acted as he did. When the matter came before the Court a quo what was placed before it was a partly reconstructed record. The magistrate’s judgment on sentence was not available. It had not been mechanically recorded and the magistrate h stated that his entire judgment on sentence was delivered ex tempore, and that


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he could not remember what he had said in that respect. Notwithstanding this, the magistrate declared that he had considered all sentencing options and stood by the seven year sentence he imposed on the appellant. On appeal it was argued for the appellant that the Court a quo did not have a proper record before it on which the appeal against sentence could be heard, yet it approached the matter as though there was an adequate i record before it. By so doing, the Provincial Division, instead of dealing with the question of the sentence on the footing that they were at large to consider the question afresh, applied the more restrictive test traditionally applied when considering appeals against sentence and consequently misdirected themselves. It was argued further that by mistakenly thinking that the j incident giving rise to the charge occurred on 29 July 1992 rather than on

495 29 July 1997, the court a quo was led to incorrectly exaggerate the extent of the pain suffered by the complainant (who testified in March 1998 that he a was still suffering pain) and consequently over-emphasised the seriousness of the consequences of the offence. Held, that the effect of the magistrate’s inability to reconstruct the record in so

far as it related to providing the reasons for having imposed the sentence which he did, was that when the matter came before the Court a quo b

on appeal it was not possible to assess whether or not the sentence was possibly vitiated by misdirection or to assess whether or not the

sentence was possibly vitiated by misdirection or to assess whether there had been a proper exercise of judicial discretion. That notwithstanding, the Court dealt with the question of sentence on the footing that there could be no interference with the sentence in the absence of material misdirection on unless the sentence imposed differed so substantially from that which they thought appropriate that it could be said to be c startlingly inappropriate. In so doing the Court a quo applied a wrong test and unjustifiably inhibited itself in regard to the extent to which it could interfere. By adopting the approach which it did, the Court a quo failed to recognize the insuperable obstacles it was placing in the way of the appellant in prosecuting his appeal in a meaningful way. In the circumstances (for which the appellant was not to blame) the Court a d

quo was obliged to regard itself as being at large to consider the question of sentence entirely afresh and without regard to the sentence imposed by the magistrate.

Held, further, that the absence of the magistrate’s reasons for sentence and his inability to recollect them had disabled the appellant from demonstrating the existence of any misdirections or any other failure to exercise a e proper sentencing discretion. The possibility that the judgment on sentence suffered from such defects could not simply be arbitrarily excluded.

Held, further, that the approach adopted in S v Adams 2001 (1) SACR 59, viz that simply because a magistrate has given an oral judgment which has not been recorded in any manner, a reviewing court was at large to decide the case on the recorded evidence, was wrong. Neither the f common law not any statute obliges a magistrate to ensure that his or her judgment is recorded in such a way that a contemporaneous record of it comes into being. There are magistrates’ courts where neither recording facilities nor shorthand writers are available and magistrates have perforce to record the evidence and their rulings, verdicts and sentences in longhand. They cannot be expected to do the same while


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orally delivering judgment. If a reviewing Judge entertains doubt about g the correctness of a conviction or a sentence in such a case he or she must call for the magistrate’s reasons for the conclusions reached. If a magistrate furnishes them, the reviewing Court is in the same position as if those reasons had been recorded at the time they were given in court and is not obliged to regard itself as being at large.

Held, further, that where, as in the present case, the magistrate is unable to h furnish his or her reasons, that is an entirely different matter and the principles applied by the Court in Adams’ case come into play. In the latter case there is nothing to suggest that the magistrate was unable to furnish reasons and the decision to invoke those principles must be regarded as erroneous.

Held, as regards sentence, that the appellant was a first offender who had i lost his employment as a result of this incident. There was also the

probability that he had been subjected to insulting and humiliating provocation in the past and that more of the same on the day in

question enraged him. As against that, there were strongly aggravating features: the appellant was a police officer at the time. He shot twice at an unarmed member of the public in the police station in full view of his colleagues, using a weapon issued to him to enable him to protect the j

496 public. He was no longer a very young man (he was 33 years of age) a and he should have known better. He should not have allowed his

emotions to get the better of him. His behavior was utterly reprehensible and called for a severe response. In all the circumstances, a sentence of five years’ imprisonment would be appropriate. b

Appeal against the dismissal by the Transvaal Provincial Division of an

appeal against a sentence imposed in a regional court. S E Motloung for the appellant. G D Baloyi for the State. Mthiyane AJA: c [1] The appellant was charged with attempted murder and convicted of

assault with intent to do grievous bodily harm in the regional court, Pietersburg. He was sentenced to seven years’ imprisonment. An appeal against sentence to the Transvaal Provincial Division failed, and leave to appeal was refused. Leave to appeal to this Court was granted on d application to it.

[2] The background to the conviction may be summarized briefly. The appellant, a sergeant in the South African Police Services, stationed at Sheshego, had laid a charge of crimen injuria against the complainant. At the request of the investigating officer, one detective Mkgakane, the complainant reported at the Sheshego police station but found that Mr. e Makgakane was not available. He was then asked to wait for him in

one of the offices. While the complainant was waiting for his return, the appellant entered the office and shot him twice, once above the left

knee and once in the right hip. One of the bullets penetrated the right hip and remains lodged in the left pelvis, and was not removed f because it was considered too dangerous to do so. After the shooting, one of the appellant’s colleagues took possession of the firearm and the complainant was removed to hospital.


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[3] There was a dispute as to the events preceding the shooting. The appellant’s version in this regard was recorded as follows by the magistrate: g …Oggend 29 Julie 1997 aan diesn. Plus minus 08:00 alleen in my kantoor. My kantoor toegemaak. Iemand maak, skielik die deur oop sonder om te klop. Toe ek deur kyk sien ek die klaer. Hy beledig my toe hy begin inkom. Se ek het vir , Sotho ‘masipha’ laat arresteer. h

Hy se daardie dag wil hy my sy ware kleure wys. Gese ek is dom. Ek kom van die plase af. Hy gaan niks met my praat nie. Se sy prokureurs gaan my laat kak.

Dit het vinnig gebeur. Ek se hoekom elke keer as jy my ontmoet vertel jy my so iets. He se voertsek hy praat niks met my nie. Hy trek deur hardop toe. Dit my uit. Ek gaan kyk waarheen gaan hy. Op daardie oomblik was ek baie kwaad gewees.’ i

The appellant then went on to describe how he lost control of himself and how he shot the complainant. [4] The complainant denied that he insulted the appellant. He justified that while waiting for Mr. Makgakane’s return the appellant entered the office and greeted him. When the complainant did not return the

greeting, the appellant swore at him, drew out his service pistol and j 497 shot him twice. He alleged that the appellant said that he would kill a

him. He denied that he went to the appellant’s office or that he knew where it was situated.

[5] It is not apparent from the reconstructed record (as to which more later) how the magistrate resolved the above disputes because that part

of his judgment which gave his reasons for convicting the appellant is lacking and he is unable to recall what he said (and, presumably, b

found proved). In as much as the appellant does not question his conviction on appeal, no more need be said about this aspect of the matter. For purposes of the intermediate appeal the court a quo (Van der Walt J et Coetzee AJ) accepted that the appellant was provoked because it considered that the appellant, a policeman of eight years’ standing, would not otherwise have acted as he did. c

[6] It is against this background that we are called upon to deal with the appeal against sentence. When the matter came before the court a quo what was placed before it was a partly reconstructed record. The magistrate’s judgement on sentence was not available. It had not been mechanically recorded and the magistrate stated that his entire judgment on sentence was delivered ex tempore, and that he could not d remember what he said in that respect. Notwithstanding this, the magistrate declared that he had considered all the “vonnis opsies”² and stood by the seven year sentence he imposed on the appellant.

[7] This then brings me to the two issues raised in this appeal. First, it was argued that the court a quo did not have a proper record before it on which the appeal against sentence could be heard, yet it approached e

the matter as though there was an adequate record before it. By so doing, so the argument goes, the learned Judges, instead of dealing with the question of the sentence on the footing that they were at large to consider the question afresh, applied the more restrictive test


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traditionally applied when considering appeals against sentence and consequently misdirected themselves. The second point raised was f

that by mistakenly thinking that the incident giving rise to the charge occurred on 29 July 1992 rather than on 29 July 1997, the court a quo was led to incorrectly exaggerate the extent of the pain suffered by the complainant (who testified in March 1998 that he was still suffering pain) and consequently over-emphasized the seriousness of the consequences of the offence. g

[8] I proceed to deal with the first issue. The effect of the magistrate’s inability to reconstruct the record in so far as it related to providing the reasons for having imposed the sentence which he did, was that when the matter came before the court a quo on appeal it was not possible to assess whether or not the sentence was possibly vitiated by misdirection or to assess whether there had been a proper exercise of judicial discretion h

That notwithstanding, the learned judges dealt with the question of sentence on the footing that there could be no interference with the sentence in the absence of material misdirection or unless the sentence imposed differed so substantially from that which they thought appropriate that it could be said to be startlingly inappropriate. In so doing the court a quo applied a wrong test and unjustifiably inhibited i itself in regard to the extent to which it could interfere. That much is evident from its ultimate conclusion that ‘the sentence imposed by the magistrate is not shocking’ and from what was said in refusing leave to j

498 appeal, namely, ‘Ek is nie oortuig dat die landdros nie sy diskresie a

behoorlik uitgeoefen het toe hy hierdie vonnis van 7 jaar vir hierdie misdaad opgele het nie”³. By adopting the approach which it did, the court a quo failed to recognize the insuperable obstacles it was placing

in the way of the appellant in prosecuting his appeal in a meaningful way. In the circumstances (for which the appellant was not to blame) b

the court a quo was obliged to regard itself as being at large to consider the question of sentence entirely afresh and without regard to the sentence imposed by the magistrate. Its failure to do so necessitates

this Court having to undertake that task. [9] Because of the view which I take of the first issue I do not consider it c

necessary to consider the materiality of the court a quo’s mistaken view of the date of the offence. In any event it is not that court’s sentence which is being appealed against but the magistrate’s sentence.

[10] It is clear that if the appellant is to be afforded the unfettered right of appeal to which he was then entitled, this Court must of necessity be at large to consider the question of sentence afresh in the light of all the d circumstances. The absence of the magistrate’s reasons for sentence

and his inability to recollect them has disabled the appellant from demonstrating the existence of any misdirections or any other failure to exercise a proper sentencing discretion. The possibility that the judgment on sentence did suffer from such defects cannot simply be arbitrarily excluded. e

See S v Masuku and others 1985 (3) SA 908 (A) at 912 G-I. [11] Tempting as it is to seek to also draw support for that approach from the

decision in S v Adams 2001 (1) SACR 59, I am constrained to say that I consider the adoption and application of that approach in that case to be


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clearly wrong and, because its implications for the reviewing process are serious, it is necessary to say so. The reasoning there adopted, namely f that simply because a magistrate has given an oral judgment which has not been recorded in any manner, a reviewing court is at large to decide the case on the recorded evidence, is based upon a misunderstanding of the principles laid down in the decided cases cited in the judgment and

a misapplication of them. g [12] Those principles do not apply where the magistrate did in fact give an

oral judgment at the trial and is in a position, if required by a reviewing judge to do so, to furnish again ex post facto the reasons for judgment or sentence. Neither the common law nor any statute obliges a magistrate to ensure that his or her judgment is recorded in such a way that a h contemporaneous record of it comes into being. Indeed there are magistrates’ courts where neither recording facilities nor shorthand writers are available and magistrates have perforce to record the evidence and their rulings, verdicts and sentences in longhand. They cannot be expected to do the same while orally delivering judgment. If a reviewing judge entertains doubt about the correctness of a conviction or a i sentence in such a case he or she must call for the magistrate’s reasons for the conclusions reached. If a magistrate furnishes them, the reviewing court is in the same position as if those reasons had been recorded at the time they were given in court and is not obliged to regard itself as being at large.

[13] Where, as in the present case, the magistrate is unable to furnish his j 499 or her reasons, that is an entirely different matter and the principles a

applied by the court in Adams’s case come into play. In the latter case there is nothing to suggest that the magistrate was unable to furnish reasons and the decision to invoke those principles must be regarded as erroneous. b

[14] The decision in S v Masuku and Others (supra) on which the court in Adam’s case relied is not in point. The judicial officer there was a judge, not a magistrate. The judge had given no reasons at all either orally or otherwise for his decision at the time and was entirely functus officio. It was not competent for him in law to give his reasons for the first time c

ex post facto. A magistrate who did give reasons at the time but whose reasons were not recorded, is not entirely functus officio in the same sense in that express statutory provision is made for his reasons to be furnished again ex post facto, if required. (Rule 67(5) of the Magistrates’ Courts Act 32 of 1944; s 304(2)(a) of the Criminal Procedure Act 51 of d 1977). The case of R v Hadi 1960 (2) SA 160 (E) upon which the court in Adams’s case also relied for the proposition that a magistrate is obliged to have his or her judgment recorded in some or other form is in fact authority for the proposition that he or she is not so obliged. e

[15] In considering the question of sentence afresh I bear in mind the following mitigating factors. The appellant is a first offender. He has lost his employment as a result of this incident. He will have to live with the knowledge that his folly will cost his wife and three children dearly. There is also the probability that he had been subjected to insulting f

and humiliating provocation in the past and that more of the same on the day in question enraged him.


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[16] As against that, there are strongly aggravating features. The appellant was a police officer at the time. He shot twice an unarmed member of the public in the police station in full view of his colleagues, using a weapon issued to him to enable him to protect the public. He was no longer a very young man (he was 33 years of age) and he should have known g better. He should not have allowed his emotions to get the better of him. His behaviour was utterly reprehensible and calls for a severe response.

[17] In my view, considering all the circumstances and balancing the seriousness of the offence against the appellant’s personal h circumstances, and taking into account the interests of the community, a sentence of five years’ imprisonment would be appropriate. It will suffice, I believe, to bring home to the appellant and to anyone who may be tempted to follow his example, the seriousness of the matter.

[18] It follows that the sentence of seven years’ imprisonment imposed by the magistrate cannot stand and must be set aside. i

[19] I make the following order: 1. The appeal succeeds 2. The sentence of seven years’ imprisonment is set aside and

replaced with a sentence of five years’ imprisonment. Marais JA and Cameron JA concurred. 500

Makhudu v Director of Public Prosecutions Question 1 The pronoun his in “While the complainant was waiting for his return” (at e – f on page 495) refers to:

1) The appellant 2) The complainant 3) The investigating officer 4) The magistrate

Question 2 When the appellant was charged in a regional court, the bullet had been lodged in the complainant’s pelvis for about:

1) 8 months 2) 5 years 3) 5 years and 8 months 4) Six years and 8 months

Question 3 It seems that the magistrate considered that a sentence of 7 years (at e – f on page 495) was appropriate for being found guilty of:

1) attempted murder


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2) attempted murder and assault with the intent to do grievous bodily harm

3) assault with attempt to do grievous bodily harm 4) grievous bodily harm

Question 4 The ‘court a quo’ (at g on page 495) refers to

1) the original case in the regional court 2) the appeal against sentence in the Provincial Division 3) both 1 and 2 4) the case in the Supreme court of Appeal

Question 5 The complainant in the original / first case

1) was a sergeant in SAPS 2) laid a charge of crimen injuuria 3) was shot above the knee and in the right hip 4) was charged with attempted murder

Question 6 The issue before the court was brought by the

1) judge 2) complainant 3) director of public prosecutions 4) appellant

Question 7 The police sergeant (page 495 at d – e) is the _____________ in this case

1) accused 2) complainant 3) first offender 4) appellant

Question 8 The phrase “ex tempore” (page 495 at g – h ) means

1) after careful deliberation 2) at a different time 3) based on rough notes 4) spontaneously

Question 9 The best synonym in this context for contemporaneous (page 496 f – g) is


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1) mechanical 2) continuous 3) concurrent 4) sporadic

Question 10 The word furnish (page 496, paragraph h) can best be replaced by ________ in this context

1) equip 2) secure 3) provide 4) obtain

Question 11 The judges misdirected themselves in the review (page 495 at i-j) means that the judges

1) should have called the magistrate to explain his judgment on sentence 2) were wrong to act as if an adequate record of the magistrate’s

judgment were available 3) should not have considered the question afresh 4) were not at large to consider the question afresh

Question 12 The discussion about the mistake described in the paragraph at j on p495 and a on p496 suggests that the severity of the sentence is influenced by

1) the recovery of the offence 2) the intention with which the offence was committed 3) the consequences of the offence 4) 1 and 2

Question 13 The word ‘Held’ used to introduce the paragraphs on page 496 can best be understood to mean

1) ‘the court a quo argued’ 2) ‘I declare’ 3) ‘it was the judge’s view’ 4) ‘it is a fact’

Question 14 The most suitable translation into plain English of the following statement: ‘it was not possible to assess whether or not the sentence was possibly vitiated by misdirection or to assess whether there had been a proper exercise of judicial discretion’ (at b on page 496) is’ it was not possible to assess whether or not the sentence was


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1) appropriate or not 2) inappropriate or not 3) too lenient or too severe 4) too severe or just right

Question 15 At c – d on page 496 the court a quo is said to have applied ‘a wrong test’. In this context, the wrong test v the right test would be, respectively,

1) ‘is there evidence of material misdirection’ v ‘are we placing insuperable obstacles in the appellant’s way?’

2) ‘is there evidence of material misdirection’ v ‘was the sentence startlingly inappropriate?’

3) ‘do we have the magistrate’s reasons for his decisions?’ v ‘was the sentence startlingly inappropriate?’

4) ‘was the sentence startlingly inappropriate?’ v ‘do we have the magistrate’s reasons for his decisions?’

Question 16 The ‘circumstances’ for which the appellant was not to blame (at d on page 496) are that

1) there was no record of the magistrate’s reasons for the conclusions reached

2) the magistrate could no longer remember what those reasons were 3) the court wrongly thought that the complainant had been suffering

pain since July 1992 4) 1 and 2

Question 17 Three of the following summarize the current judge’s comments on the approach adopted in S v Adams 2001 (f – h on page 496). Which is the exception?

1) the magistrate had given an oral judgment which was not recorded in any manner

2) the magistrate was unable to furnish his reasons for the conclusions reached

3) the receiving court decided the case afresh on the recorded evidence 4) the approach adopted in that case was wrong

Question 18 The word perforce (page 496 at f – g) can best be replaced by

1) unavoidably 2) the obligation 3) perhaps 4) by chance


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Question 19 Match the surnames that appear on p497 (column A) with their correct descriptions in column B A B (1) Makhudu (a) Supreme court judge (2) Motloung (b) prosecuting attorney (3) Baloyi (c) defence attorney (4) Mthiyane (d) investigating officer (5) Makgakane (e) appellant

(f) complainant (g) regional court magistrate

1) 1d 2c 3b 4g 5e 2) 1e 2c 3b 4a 5d 3) 1f 2b 3c 4a 5f 4) 1e 2b 3c 4d 5d Question 20 The first paragraph of italicized headnotes on page 495 states the legal principles that

1) were applied in the original case in the regional court 2) were applied in the case in the provincial reviewing court 3) were not properly applied in the case in the provincial reviewing court 4) 1 and 2

Question 21 The second paragraph of italicized footnotes on page 495 summarizes

1) the original sentence in the original court 2) the sentence as upheld by the provincial reviewing court 3) the sentence as amended by the supreme court of appeal 4) 1 and 2

ANSWERS

1. 3 2. 3 3. 2 4. 1 5. 3 6. 4 7. 2 8. 2 9. 3 10. 3


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11. 4 12. 3 13. 2 14. 3 15. 1 16. 2 17. 2 18. 2 19. 3 20. 4 21. 3

S v ZONDO a CAPE PROVINCIAL DIVISION CONRADIE J 2000 September 22 Sentence – Penalty clause – Minimum sentences – Imposition of in terms of b ss 51, 52 and 53 of Criminal Law Amendment Act 105 of 1997 – Referral of matter from regional court to High Court – Multiple counts, some of which justified referral – Preferable that all counts be referred for sentence to High Court, including those in respect of which regional court empowered to pass sentence. c The accused was charged in a regional magistrate’s court with two counts of murder and one of attempted murder and was found guilty on all three 1 counts. The regional magistrate, having decided that the sentence on count 2 would be one which he was not competent to impose, referred the matter 3 to the High Court in terms of the provisions of ss 51 and 52 of the 4 d Criminal Law Amendment Act 105 of 1997. The court considered the 5 circumstances of the offences and held that sentences of life imprisonment 6 ought to be imposed on each of counts 1 and 3. The Court then considered 7 the sentence on the count of attempted murder in respect of which the 8 regional magistrate had declined to impose a sentence. The Court held 9 e that although the Act made no provision for such a situation, the 10 magistrate’s decision to refer the accused to the High Court for sentencing 11 on all the counts was the correct one: it was more in accordance with 12 justice that all sentences imposed on an accused should be pronounced by 13 the same court. 14 Referral of matter for sentence to the High Court in terms of ss 51 and 52 of the f Criminal Law Amendment Act 105 of 1977. SM Galloway for the accused. C Bischoff for the State. Conradie J: The accused was charged in the Wynberg magistrate’s court with g two counts of murder and one of attempted murder. He was found guilty on


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all three. The regional magistrate, having decided that the sentence on count 2 would be one which he was not competent to impose, referred the matter to this Court in terms of the provisions of ss 51 and 52 of the Criminal Law Amendment Act 105 of 1997 (‘the Act’). h Mr. Galloway appeared on behalf of the accused. He sought to persuade me that I ought not to be satisfied that justice had been done in regard to the conviction of the accused on count 1. In a case like that I am entitled as a first step to request the magistrate’s reasons. The submissions have no merit. The admission by the accused on which the regional magistrate relied was i admissible in terms of s 119A of the Criminal Procedure Act 51 of 1977. The first murder and the attempted murder were committed on the same day. The accused first shot his girlfriend Veronica Mapupu. She was with Sipho Mamani, the deceased in count 1. She offered the accused peanuts j 76 which Mamani had given her. Without a word he shot her as she was trying a to hide behind Mamani. She was wounded in the lower arm. There is reason to believe that the accused really intended to shoot Mamani and not the girlfriend. Mamani fled but could not escape his killer. He died shortly thereafter from a gunshot wound in the chest. The deceased in count 3, Nyaba Seleka, died from multiple gunshot wounds. b He was first shot and wounded outside the home of Nokwanda Mamani. After she had helped to get the deceased into a taxi, the accused came up to the taxi and at close range fired several shots at the deceased which killed him. The regional magistrate correctly considered that the murder of Nyaba Seleka was planned or premeditated. It was, in fact, an execution of the c deceased. He died from multiple gunshot wounds involving the neck, thorax, abdomen and both arms. The minimum sentence for a killing of this kind is prescribed by the Act. Part 1 of Schedule 2 to the Act read with s 51 provides that, subject to two exceptions with which I shall deal presently, anyone who commits a planned or premeditated murder must be sentenced to d imprisonment for life. It is, I should say in passing, the law in this Division that a regional court has jurisdiction to try offences in Part 1 of Schedule 2 to the Act such as planned or premeditated murder. (S v Ibrahim 1999 (1) SACR 106 (C).) In my view the murder of Sipho Mamani can also be categorized as e ‘panned or premeditated’. The accused had armed himself. He seems, by his conduct, to have come to the place where Mamani and Mapupu were with no purpose other than to shoot Mamani. The accused then pursued or tracked him and shortly thereafter shot him dead. There is an element of vengeance in this killing as well. However, Seleka was murdered before the Act came into operation and, since it is not retrospective, it does not apply to this crime. f (S v Willemse 1999 (1) SACR 450 (C).) The one exception to the imposition of a mandatory life sentence of imprisonment for a planned or premeditated murder operates where there are substantial and compelling circumstances justifying the imposition of a lighter sentence. The accused testified before this Court. He proclaimed his g regret at what had occurred. He says that he wants to lead a better life, he wants to put his unhappy childhood behind him. He has joined a church group in prison. None of this amounts to substantial and compelling circumstances. Nothing of what he has said lessens the accused’s moral blameworthiness. The manner in which the test is framed has, in many h cases, given rise to difficulties. In the present case there is none. The


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accused advanced no reasons for his conduct. Moreover, he is a recidivist. He has four previous convictions for assault with intent to do grievous bodily harm. On top of that there are three convictions for housebreaking on his record. The other exception to s 51 does not apply. The accused i was not under the age of 16 at the time of the commission of the offence. He is a man of 32. The accused must on count 3 be sentenced to imprisonment for life, a sentence which I would have imposed even if there had been no s 51. On count 1 I consider that I should, in the exercise of my discretion, also impose a sentence of life imprisonment on the accused, having j 77 regard to the nature of the killing and the disposition to violence shown a by the record of his previous convictions. It remains to consider what should be done with regard to the sentence on the count of attempted murder. The regional magistrate declined to impose a sentence on this count. Although the Act makes no provision for b such a situation, he decided to refer the accused to this court for sentencing on all the counts. In my view this solution was the correct one. It is more in accordance with justice that all sentences on an accused should be pronounced by the same court. In cases where a district magistrate after conviction, decides that a sentence merited by an accused exceeds his jurisdiction and in terms of c s 116 of the Criminal Procedure Act 51 of 1977 commits him for sentence to a regional court having jurisdiction, it seems to be generally assumed that the regional magistrate is empowered, in respect of less serious charges on which an accused has been convicted, to impose such sentence as the magistrate might have imposed had the accused not been committed. d In the case of S v Selebogo 1984 (2) SA 486 (NC) it was decided that where one or more of a number of accused in a case had to be committed to the regional court for sentence, those who did not merit sentences exceeding the jurisdiction of the magistrate’s court had to be committed for e sentence as well. The same conclusion was reached in S v Masinga en ‘n Ander 1984 (3) SA 446 (T). It was clearly assumed that the regional magistrate had the power to sentence also those accused whom the district magistrate could have dealt with under his jurisdiction (see Selebogo’s case f at 488D). S v Cele and Others 1994 (1) SACR 616 (N), preferred the approach of the Court in S v Ngubane 1991 (1) SACR 163 (N), that not all the accused in a case, regardless of their probable sentences, had to be sentenced in the regional court. It motivated its preference in several ways. But it did not give as one of its reasons for declining to follow Selebogo that accused who merited a sentence within the magistrate’s jurisdiction should not have been committed for sentence to the court of the regional magistrate because the latter lacked the power to sentence them. g I accordingly conclude that there is nothing to prevent me from sentencing the accused on the second charge. The sentence will in terms of s 32(2) of the Correctional Services Act 8 of 1959 run concurrently with the life imprisonment. h The accused is on each of counts 1 and 3 sentenced to imprisonment for


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life. On count 2 he is sentenced to five years’ imprisonment. 78

S v Zondo Question 1 The reader is expected to understand that the word or phrase missing after ‘Imposition of’ in the headnotes is

1) ‘sentence’. 2) ‘penalty clause’. 3) ‘minimum sentences’. 4) 1, 2 and 3.

The letters A to D below identify four quotations from the headnotes. Use these letters in answering questions 2, 3 and 4: A) Imposition of in terms of ss51, 52 and 53 of the Criminal Law

Amendment Act 105 of 1997 B) Referral of matter from regional court to High Court C) Multiple counts, some of which justified referral D) Preferable that all counts be referred for sentence to High Court,

including… Question 2 Which of the four quotations above could best be described as the appropriate legal principle on which the judge bases his judgement?

1) A 2) B 3) C 4) D

Question 3 Which of the four quotations above describes the legal process that has led to this hearing?

1) A 2) B 3) C 4) D

Question 4 Which of the four quotations above refers to the circumstances facing the regional magistrate?

1) A 2) B 3) C 4) D


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Question 5 The regional magistrate’s decision to refer the accused to the High Court was

1) later criticized by the judge. 2) based on his interpretation of ss 51 and 52 of the Criminal Law

Amendment Act 105 of 1997, which he felt gave him no option. 3) because murder is a much more serious offence than attempted

murder. 4) because he wanted all sentences in this case to be imposed by the

same court. Question 6 Here are some of the actions relating to the trial of the accused in this case: A) decide his innocence or guilt on a count of murder B) decide his innocence or guilt on a count of attempted murder C) sentence him on a count of murder D) sentence him on a count of attempted murder It is clear from the summary below the headnotes on page 76 that a regional magistrate is competent to do

1) A and B but not C or D. 2) B and D but not A or C. 3) A, B and C but not D 4) Only A.

Question 7 It is clear from the summary below the headnotes on page 76 that the judge agrees with the district magistrate’s

1) sentences of life imprisonment on counts 1 and 3. 2) decision on his own lack of competence as a regional magistrate to

impose a sentence on count 2 3) decision to refer the accused to the High Court for sentencing on

all three counts. 4) 1, 2 and 3

Question 8 The situation for which ‘the Act made no provision’ (line 11 in the summary) is one where a magistrate refers an accused to a higher court for sentencing

1) on counts on which he is competent to impose a sentence. 2) on counts on which he is not competent to impose a sentence. 3) both 1 and 2 together. 4) on less serious counts like attempted murder instead of more


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serious ones like murder. Question 9 The reference to ‘the same court’ at the end of the summary refers

1) to this particular regional magistrate’s court. 2) specifically to the High Court. 3) to any court with the appropriate competence. 4) 1 and 2

Question 10 It is clear from the paragraph at i on page 76 that the magistrate’s reasons for convicting the accused on count 1

1) are not satisfactory in terms of justice being done. 2) are based on the accused confessing to the murder. 3) have no merit in the opinion of the judge. 4) have no merit in terms of s 119A of the Criminal Procedure Act 51

of 1977. Question 11 In this context, ‘The submissions have no merit’ means

1) Mr Galloway thinks the magistrate’s decision was wrong. 2) The judge thinks the magistrate’s decision was wrong. 3) The judge is unable to make sense of the magistrate’s case report. 4) The judge rejects Mr Galloway’s argument.

Question 12 In the judge’s opinion, the accused shot Veronica Mapupu in the arm

1) on purpose. 2) because as his girlfriend she should not have been with Sipho

Mamani. 3) because that was the only part of her that was not hidden behind

Sipho Mamani. 4) by accident – he was actually aiming at Sipho Mamani.

Question 13 The relationship between Nokwanda Mamani and Sipho Mamani is

1) mother and son. 2) sister and brother. 3) wife and husband. 4) not mentioned in this case report.

Question 14 This case deals with these three events:


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A) the passing of the Criminal Law Amendment Act 105 of 1997 B) the murder of Sipho Mamani C) the murder of Nyaba Seleka

The order in which they occurred is

1) A, B, C. 2) B, A, C. 3) B, C, A. 4) A, C, B.

Question 15 In the two paragraphs at c, d, e, f on page 77, the following two cases are cited:

A) S v Ibrahim 1999 B) S v Willemse 1999

Here are three decisions that might be associated with these two cases:

a) The minimum sentence for premeditated murder is imprisonment for life.

b) Murders committed before the Criminal Law Amendment Act 105 of 1997 was passed cannot be tried in terms of this Act.

c) Someone accused of premeditated murder can be tried in a regional court.

The correct links between the cases and the decision is

1) Aa and Bb 2) Ab and Bc 3) Ac and Ba 4) Ac and Bb

Question 16 The accused’s regret at what he had done, his wish to lead a better life and put his unhappy childhood behind him, and his membership of a church group (at g on page 77)

1) are substantial and compelling circumstances justifying the imposition of a lighter sentence.

2) are offered by his defence as substantial and compelling circumstances justifying the imposition of a lighter sentence.

3) are rejected by the judge as substantial and compelling circumstances justifying the imposition of a lighter sentence.

4) 2 and 3


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Question 17 ‘in the present case there is none’ (at h on page 77) means there is no 1) moral blameworthiness in what the accused did. 2) difficulty in deciding that no exception applies in this case. 3) reason given by the accused for what he did. 4) 1 and 2 Question 18 The judge refers to the accused as a ‘recidivist’ (between h and i on page 77) because he 1) receives stolen goods. 2) has been sentenced to life imprisonment. 3) is a repeat offender. 4) had an unhappy childhood. Question 19 The judge says ‘in the exercise of my discretion’ (at j on page 77) because 1) the murder in count 1 was not as cold-blooded as the execution-

style murder in count 3. 2) a life sentence for premeditated murder became mandatory only

after the passing of the Act; this crime was committed beforehand. 3) he has the power to overrule the sentence passed by the regional

magistrate’s court. 4) 1 and 3 Question 20 In its context at a on page 78, the phrase ‘disposition to violence’ refers to 1) the manner in which the accused killed Nyaba Seleka. 2) the ruthlessness of both the count 1 and the count 2 murders. 3) The four occasions earlier in his life when the accused was found

guilty of assault with intent to do grievous bodily harm. 4) 1, 2 and 3 Question 21 The conclusion to the sentence ending ‘… had the accused not been committed’ (c-d on page 78) is the ‘understood’ phrase 1) ‘by the district magistrate’. 2) ‘for sentence to a regional court having jurisdiction’. 3) ‘in respect of less serious charges’. 4) In terms of s116 of the Criminal Procedure Act 51 of 1977’.

Question 22


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The following four cases are cited in d to g on page 78:

A) S v Selebogo B) S v Masinga en h Ander

C) S v Cele and Others D) S v Ngubane

The case(s) that represent(s) the same principle as that applied in S v Zondo is/are 1) A.

2) A and B. 3) C and D. 4) A, B and C.

Question 23 The difference between the S v Zondo and the other four cases listed in question 22 is that

1) a regional court is the lower court in the case of S v Zondo but the higher court in the case of the other four.

2) S v Zondo involved premeditated murder whereas the others did not. 3) S v zondo involves a regional magistrate whereas the others do not. 4) The accused in S v Zondo is guilty of several offences but those in the

others are not. Question 24 An implication of the sentence beginning ‘But it did not give as one of its reasons’ (between f and g on page 78) is that an accused who merits a sentence within a district magistrate’s jurisdiction

1) should not be committed for sentence to the court of the regional magistrate because he lacks the power to sentence him.

2) can nevertheless be committed for sentence to the court of the regional magistrate.

3) should not be committed for sentence to the High Court. 4) should not give as one of his objections to being committed to the

court of the regional magistrate that he does not have the power to sentence him.

Question 25 The word ‘concurrently’ just above h on page 78 means that

1) the sentence on the second count replaces the sentences on counts 1 and 3.

2) the sentence of five years’ imprisonment begins after the life sentences have been served.

3) the sentence of five years’ imprisonment is served first and then the life sentences begin.


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4) the life sentences and the five years’ imprisonment are served at the same time.

ANSWERS

1. 3 2. 4 3. 4 4. 1 5. 2 6. 3 7. 4 8. 3 9. 3 10. 2 11. 4 12. 4 13. 4 14. 3 15. 4 16. 4 17. 2 18. 3 19. 2 20. 3 21. 2 22. 2 23. 1 24. 2 25. 4


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S v PULWANE AND OTHERS d TRANSVAAL PROVINCIAL DIVISION WEBSTER J and BOSIELO J 2002 July 16 Case No M257/2002 e Junvenile offenders – Sentence – Factors to be taken into account – When youth or juvenile strays from path of rectitude to criminal conduct, it is responsibility of judicial officers invested with task of sentencing such youth to ensure that she or he receives all relevant information pertaining to such juvenile to enable her or him to structure sentence that will best suit needs f and interests of particular youth – Every judicial officer who has to sentence youthful offender has to ensure that whatsoever sentence she or he decides to impose will promote rehabilitation of that particular youth and have, as its priority, reintegration of youthful offender back into her or his family and community. g Housebreaking – Housebreaking with intent to steal and theft – Sentence – Accused pleading guilty to housebreaking with intent to steal and theft of groceries worth R1 500 – Sentenced to three years’ imprisonment by magistrate’s court – Accused aged 20, 22 and 18 respectively – Accused first offenders – Trial court finding that offence both serious and prevalent and that ‘it was high time that criminals be dealt with severely’ – Court having h very little information regarding accuseds’ personal circumstances and their family and social backgrounds – Option of sentence of correctional supervision was viable and had merited serious consideration – Magistrate failing to request assistance of relevant experts,such as correctional officers, social workers or probation officers, to assist him to decide on appropriate sentence – Result was sentence that had effect of destroying rather than rehabilitating i and improving the accused for their future reintegration into society – To send three youthful offenders with clean records to direct imprisonment for three years for housebreaking with intent to steal and theft of groceries valued at R1 500 a serious injustice to both society and youthful offenders themselves – j 631 Sentence set aside and matter referred back to court a quo to obtain


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pre-sentencing reports and reimpose sentence accordingly. a The accused pleaded guilty to and were convicted of housebreaking with the Intent to steal and theft of groceries worth R1 500 and were sentenced to three years’ imprisonment by a magistrate’s court. The accused were aged 20, 22 and 18 respectively and first offenders. The trial court had found that the offence for which the accused had been convicted b was both serious and prevalent and that ‘it was high time that criminals be dealt with severely’. Held, that while it was true that where a crime was serious and prevalent,

particularly where it threatened the well-being of society, courts should impose appropriate sentences, it remained a trite principle of sentencing that each case had to be decided on its own merits. It was also trite that c

direct imprisonment was not always the appropriate sentence. It was a patent and serious irregularity for a sentencing officer to ignore the

personal circumstances of an accused when considering sentence. A sentencing officer should never allow the seriousness of the offence and

the interests of the community to receive undue weight at the expense of the personal circumstances of the accused. That would inevitably lead to a sentence which was flawed. (Paragraph [7] at 634 a-c). d Held, further, that it was clear from the record that the magistrate had adopted an incorrect approach in sentencing the accused. Undoubtedly the youth

was the hope for the future. When a youth or juvenile strayed from the path of rectitude to criminal conduct, it was the responsibility of judicial

officers invested with the task of sentencing such a youth to ensure that e she or he received all relevant information pertaining to such a juvenile to enable her or him to structure a sentence that would best suit the needs and interests of the particular youth. It was after all a salutary

principle of sentencing that sentence had to be individualized. Every judicial officer who had to sentence a youthful offender had to ensure f that whatsoever sentence she or he decided to impose would promote the

rehabilitation of that particular youth and have, as its priority, the reintegration of the youthful offender back into her or his family and, of course, the community. (Paragraph [9] at 634h-635a).

Held, further, that in casu the magistrate had not considered other sentencing options. In any event, the magistrate could not have done that properly g

as he had had very little information regarding the accuseds’ personal circumstances and their family and social backgrounds. The option of sentence of correctional supervision was viable and had merited serious consideration. The magistrate had failed to request the assistance of relevant experts, such as correctional officers, social workers or

probation officers, to assist him to decide on an appropriate sentence. The result was a sentence that had the effect of destroying rather than h rehabilitation and improving accused for their future reintegration into

society. (Paragraph [10] at 635b-c. Held, further, that to send three youthful offenders with clean record to direct

imprisonment for three years for housebreaking with intent to steal and i theft of groceries valued at R1 500 was a serious injustice to both society

and the youthful offenders themselves. (Paragraph [11] at 635d-e). Sentences set aside and the matter referred back to the court a quo to obtain pre sentencing reports and reimpose sentence accordingly. Annotations: j


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Reported cases S v Nkosi 2002 (1) SACR 135 (W): dictum at 143b applied S v Z en Vier Andere Sake 1999 (1) SACR 427 (E): dictum at 430F applied. 632 Automatic review. The facts appear from the reasons for judgment. a Bosielo J : [1] This is a review matter from the magistrate’s court, Praktiseer. The three accused were convicted of housebreaking with intent to steal and theft on 3 April 2002. Each accused was sentenced to an effective b term of imprisonment for three years. [2] The learned Neukircher AJ prepared a query regarding the appropriateness of the sentence. The Magistrate has since responded c


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to the query. I now have to deal with the matter as Neukricher AJ is not available.

[3] The gist of the Magistrate’s response is that he duly considered all the relevant facts which had a bearing on the case. He is furthermore of d

the view that the level of crime in the country has reached such alarming proportions that courts of law have a duty to impose severe sentences to retain the community’s respect for the law. In conclusion, he requests

that the sentence he imposed be confirmed as appropriate. e

[4] The office of the Director of Public Prosecutions has submitted a well-researched and motivated opinion on the appropriateness of the sentence.

It is the unanimous view of the Director of Public Prosecutions that the sentence imposed on the accused is excessive and inappropriate.

f

[5] In order to resolve this vexed legal question it is important to have regard

to the facts that were placed before the Magistrate. The personal circumstances of the accused are as follows:

5.1 Ad accused 1 Accused 1 is 20 years old. He is neither employed nor g

attending school. He attended school only up to standard

8 (eight), which he failed. He is not married and has no dependants. He has no money for a fine. Accused 1 asked

for forgiveness and lenient sentence as his parent is unemployed.

5.2 Ad accused 2 h Accused 2 is 22 years old. He has a single parent. He is unmarried and has no dependants. He failed grade 12.

He has no money to pay a fine. He was injured in a motor collision.

5.3 Ad accused 3 Accused 3 is 18 years old. He is still attending school

where he is doing standard 9. He is unmarried and has no i

dependants. He has no money to pay a fine. His parents

are unemployed. He pleaded for a lenient sentence.


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[6] As against the personal circumstances of the accused, the accused were convicted of housebreaking with intent to steal and theft of groceries

worth R1 500. The accused pleaded guilty to the charge. All three j

accused are first offenders. The learned Magistrate found that the offence for which the accused were convicted is both serious and prevalent and

that ‘it is high time that criminals be dealt with severity (sic’).

633

[7] It is true that where a crime is serious and prevalent, particularly where a

it threatens the well being of society that courts should impose

appropriate sentences. However it remains a trite principle of sentencing that each case has to be decided on its own merits. It is also trite that

direct imprisonment is not always the appropriate sentence. It is a b

patent and serious irregularity for a sentencing officer to ignore the

personal circumstances of an accused when considering sentence. A sentencing officer must never allow the seriousness of the offence and


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the interests of the community to receive undue weight at the expense

of the personal circumstances of the accused. This will inevitably lead c

to a sentence which is flawed.

[8] As the Director of Public Prosecutions correctly pointed out, the

learned Magistrate failed to acknowledge the important fact that the d

accused herein are relatively young, with clean criminal records, who deserved a sentence based more on rehabilitation than deterrence.

As the learned Cachalia J correctly remarked in S v Nkosi 2002(1)

SACR 135 (W) at 143b: e

‘The fine balance that needs to be struck between society’s needs to

punish crime while not overlooking the interests of a juvenile offender was emphasized by Botha JA in S v Jansen and Another 1975 (1) SA 425(A)

at 427 in fine-428A in the following terms:

“The interests of society cannot be served by disregarding the

interests of the juvenile, for a mistaken form of punishment might easily f

result in a person with a distorted personality being eventually returned to g

society.” h

[9] It is clear from the record that the Magistrate adopted an incorrect

approach in sentencing the accused. Undoubtedly the youth is our i

hope for the future. When a youth or juvenile strays from the path of rectitude to criminal conduct, it is the responsibility of judicial officers invested with the task to sentence such a youth to ensure that she or

he receives all relevant information pertaining to such a juvenile to

enable him or her to structure a sentence that will best suit the needs j

and interests of the particular youth. It is, after all, a salutary principle

of sentencing that sentence must be individualized. I venture to suggest that every judicial officer who has to sentence a youthful offender must ensure that whatsoever sentence he or she decided to impose will


49


634

promote the rehabilitation of that particular youth and have, as its a

priority, the reintegration of the youthful offender back into his or her

family and, of course, the community.

[10] It is clear from the record, including the Magistrate’s reasons, that the Magistrate did not consider other sentencing options. In any event, the b Magistrate could not have done that properly as he had very little information regarding the accuseds’ personal circumstances and their

family and social backgrounds. The option of a sentence of correctional supervision is viable and merited serious consideration. The magistrate failed to request the assistance of relevant experts like correctional

officers, social workers or probation officers, to assist him to decide on an appropriate sentence. The result is a sentence that has the effect of c

destroying rather than rehabilitating and improving the accused for

their future reintegration into the society.

[11] In conclusion, it is my clear view that to send three youthful offenders

with clean records to direct imprisonment for 3 years for housebreaking d

with intent to steal and theft of groceries valued at R1500 is a serious injustice to both society and the youthful offenders themselves.

Experience teachers us that one way or another their personal lives

exposed to some unsavoury criminal elements in prison. By the time

they are released from prison, they shall have formed new personalities.

In all likelihood they will come out of prison more hardened and benefit e

of the fear of prison. Unfortunately the same society which sent them

to jail through the instrumentality of the courts, will have to live with

the ‘new and hardened criminals’ in their midst. f

[12] Having considered the nature of the offence, the interests of the


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community and balancing that against the interests, needs and personal

circumstances of the accused, I am of the view that the sentence

imposed on the accused is disturbingly inappropriate. This sentence

fails to strike a proper balance between the interests of the accused and

the legitimate expectations of society for a proper and just sentence. g

In the premises, I would propose the following order:

1. The conviction of the accused is confirmed.

2. The sentence of three years’ imprisonment imposed on each

accused is set aside. The case is referred back to the

magistrate, who must obtain the necessary pre-sentence h

reports either from the correctional official or probation officer

to assist him to decide on a proper and appropriate sentence

for the accused.

Webster J concurred.

635

S v PHULWANE AND OTHERS Question 1 In the head notes the reader is expected to understand that the phrase missing after Factors to be taken into account is

1. with regard to sentence 2. in the case of juvenile offenders 3. during trial 4. both 1 and 2

The letters A to D below identify four quotations from the head notes. Use these letters in answering questions 2 and 3.

A Every judicial officer …. into her or his family and community B Accused pleaded guilty to ….. groceries worth R1 500 C Magistrate failing to request ….. an appropriate sentence D Accused were aged 20, 22 and 18 respectively


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Question 2 Which of the quotations above could best be described as the appropriate legal principle?

1. A 2. B 3. C 4. D

Question 3 Which of the above quotations led to the present hearing being held?

1. A 2. B 3. C 4. D

Question 4 The issue before the court has been brought by the

1. Judge 2. State 3. Defendant 4. magistrate

Question 5 The relationship between paragraphs e to j on page 631 and the rest of the case report is that

1. it adds information 2. it summarises a to j on page 632. 3. it summarises pages 633 (from paragraph b) to 635 4. 2 and 3.

Question 6 In this context the word ‘rectitude’ (page 631 f) could best be replaced with

1. Honesty 2. Righteousness 3. Respectability 4. lawlessness.

Question 7 In this context (page 632 at b – d) the word ‘trite’ can best be replaced with

1. ‘trivial’ 2. ‘well known’ 3. ‘dull’ 4. ‘clichéd’.

The following considerations when sentencing are mentioned in this case:


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a the needs and interests of the particular youth b the rehabilitation of the particular youth

c the reintegration of the youthful offender back into his or her family and community

d the seriousness of the offence e the prevalence of the offence f retaining the community’s respect for the law

Question 8 Which of the considerations in a to f above does the judge in the appeal case believe were given too much weight in the original sentencing?

1. a and b 2. a, b and c 3. d and e 4. d, e and f

Question 9 Which of the considerations in a to f above does the judge in the appeal case believe is the single most important consideration when deciding what sentence to pronounce on a youthful offender?

1. A 2. B 3. C 4. F

Question 10 Which consideration does the magistrate cite in defence of his original sentence, although he didn’t make this point during the original trial?

1. C 2. D 3. E 4. F

Question 11 The phrase in casu (page 632 at f – g) means

1. even though 2. in the event of 3. in the present circumstance 4. in the case of

Question 12 The phrase ‘court a quo’ (page 632 at I – j) means

1. in the court 2. in a higher court 3. in the court of first instance 4. 1 and 2


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Question 13 The word ‘held’, used on page 632 from paragraphs b to I, can best be understand to mean

1. ‘it was the judge’s view’ 2. ‘the magistrate argued’ 3. ‘it was the view of the Director of Public Prosecutions’ 4. ‘it is a fact’

Question 14 The Director of Public Prosecutions argues that the sentence is inappropriate because the magistrate did not take into account

1. the age of the offenders 2. the fact that they were first time offenders 3. the personal circumstances of the offenders 4. all of the above

Question 15 Mentioned in the case are the following names: Bosielo, J and Neukircher, AJ. The letters J and AJ stand for

1. the initials of the two judges 2. Johannes and Andrew John, respectively 3. Judge and Appeal Judge, respectively 4. all of the above.

Question 16 In the words “In order to resolve this vexed legal question’ (page 633 at e – f), Bosielo is referring to

1. the Public Prosecutor’s view that the sentence was excessive 2. the Public Prosecutor’s view that the sentence was inappropriate 3. the magistrate’s view that he had imposed an appropriate sentence 4. all of the above.

Question 17 The three young offenders had certain things in common. Which of the following is true.

1. They had all left school 2. They all had single parents 3. They were all unmarried with no dependents 4. All of the above are true.

Question 18 The accused pleaded guilty to and were convicted of

1. Housebreaking 2. housebreaking and the intent to steal 3. theft of groceries worth R1 500 4. both 2 and 3


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Question 19 Three of the following principles of sentencing mentioned in this case emphasise the interests of the offender. Which one is the exception?

1. ‘promote rehabilitation of that particular youth’ 2. ‘courts should impose appropriate sentences’ 3. ‘a salutary principle of sentencing (is) that sentence had to be

individualised’ 4. ‘never allow the seriousness of the offence…to receive undue weight at

the expense of the personal circumstances of the accused’

Question 20 The paragraph that most clearly condemns the effect of imprisonment on youthful offenders is

1. paragraph g – h on page 362 2. contained in the quotation from S v Nkosi on page 634 3. paragraph 10 on page 635 4. paragraph 11 on page 635

Question 21 In the remark ‘Although accused 1 and 2 are……not juveniles’ (page 634 at g – h) the judge is referring to the accuseds’

1. marital status 2. age 3. criminal record 4. education level.

Question 22 ‘It is, after all, a salutary principle of sentencing that sentence must be individualised’ (page 634 at h – j) means

1. each offender’s personal circumstance should be taken into account when sentencing

2. sentences must ensure that the accused is rehabilitated 3. the rule of law should be applied, regardless of personal

circumstances 4. the punishment should always fit the crime.

Question 23 Which of the following is most likely to be seen as a mitigating factor when the sentence is reviewed?

1. Accused 1 failed standard 8 2. Accused 1, 2 and 3 were all first time offenders 3. Accused 2 was injured in a car accident 4. Accused 3 is unmarried and has no dependents.

Question 24 Three of the following are wrong interpretations of the judge’s decisions in


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this case. Which one is the exception?

1. The three accused are not guilty 2. The three accused must spend three years in prison for their crimes 3. A new magistrate must study the offenders’ background and come up

with a more appropriate sentence 4. The original magistrate must come up with a more appropriate

sentence.

Question 25 Webster J agrees with Question 25 Webster J agrees with

1. Cachalia J, 2. Botha JA, 3. Bosielo J, 4. Erasmus J.

ANSWERS

1. 4 2. 1 3. 3 4. 1 5. 4 6. 2 7. 2 8. 2 9. 3 10. 4 11. 4 12. 3 13. 1 14. 4 15. 3 16. 4 17. 3 18. 4 19. 2 20. 4 21. 2 22. 1 23. 2 24. 4 25. 3


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BEYERS v DIRECTOR OF PUBLIC PROSECUTIONS, WESTERN CAPE, AND OTHERS CAPE PROVINCIAL DIVISION SELIKOWITZ J and CARSTENS AJ 2002 March 22 Case No 7849/01 a Trial - Irregularity in – What constitutes – Attorney failing to consult with and

properly represent client – Idea of being represented by legal adviser cannot simply mean having somebody stand next to one to speak on one’s behalf – Representation entails that legal adviser acts in client’s best interest, represents client, says everything needed to be said in client’s favour and calls such evidence as was justified by circumstances in order to put best case possible before court in client’s defence.

b Trial - Postponement of – When to be granted – Presiding officer has discretion as to whether application for postponement should be granted – Discretion should be exercised judicially and not capriciously nor upon wrong principle, but only where there is substantial reason to exercise it in manner chosen – Trial court should be slow to refuse postponement where true reason for party’s non-preparedness fully explained, where unreadiness to proceed not due to delaying tactics and where justice demands that she or he should have further time for purpose of presenting case.

c The applicant had pleaded guilty in a magistrate’s court on the basis of

advice given to him by his attorney. He had met that attorney that same day and had a hurried ten minute consultation, the attorney having been appointed by the Legal Aid Board to stand in for his usual attorney, with whom he had consulted and who was unavailable, after the magistrate had refused a postponement. No evidence was led in mitigation and, as a result of previous convictions for similar offences, the applicant was sentenced to imprisonment. In a review,

d Held, that the idea of being represented by a legal adviser could not simply mean having somebody stand next to one to speak on one’s behalf. Representation entailed that the legal adviser would act in the client’s best interests, would represent the client, would say everything that needed to be said in the client’s favour and would call such evidence as was justified by the circumstances in order to put the best case possible before the court in the client’s defence. (Paragraph r)

e Held, further, that the presiding officer had a discretion as to whether an application for a postponement should be granted, which discretion should be exercised judicially and not capriciously nor upon a wrong principle, but only where there was substantial reason to exercise it in the manner chosen. A trial court should be slow to refuse a postponement where the true reason for a party’s non-preparedness had been fully explained, where his unreadiness to proceed was not due to delaying tactics and where justice demanded that she or he should have further time for the purpose of presenting her or his case. (Paragraph h)

f Held, further, that, in casu the applicant had not been deprived of legal representation in the sense of having somebody to stand up and speak on


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his behalf. However, he had been deprived of effective legal representation. (Paragraph y)

g Held, further, that the applicant had not been remiss in obtaining representation. It had not been his fault that his regular legal adviser had taken ill and had been unable to attend. It had been abundantly clear that there was a need for evidence to be led in mitigation of sentence. (Paragraph z)

h Held, accordingly, that the applicant had not had a fair trial. The conviction and sentence set aside.

i Annotations: Reported cases Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NmS): Applied S v Harris 1997 (1) SACR 618 (C): dictum at 622c-f applied S v Yelani 1986 (3) SA 802 (E): applied j Review of proceedings in a magistrate’s court. The facts appear from the

reasons for judgment. A C Webster for the applicant. No appearance for the respondents. k Selikowitz J: On 19 August 1999 the applicant pleaded guilty before the

magistrate at Cape Town to a charge of driving under the influence of liquor, a contravention of s 122(1)(a) of the Road Traffic Act 29 of 1989. He was sentenced on the same day to three years’ imprisonment. He was also disqualified from obtaining a driver’s licence for a period of five years.

l In September of that year, an application was made for leave to appeal. The application was refused. Two years later applicant launched these proceedings which are by way of review to seek to set aside his conviction and sentence on the grounds that he did not have a fair trial, as is guaranteed to him in terms of s35(3) of the Constitution of the Republic of South Africa Act 108 of 1996.

m First respondent in this matter is the Director of Public Prosecutions, Western Cape, who does not oppose this application but abides the decision of the Court. Second respondent is the presiding officer in the court a quo and third respondent is an attorney who acted at the trial on behalf of the applicant. The second respondent initially indicated that he wished to oppose the application, but thereafter filed a notice of withdrawal. Third respondent filed a notice of opposition, did not file any answering affidavit or any further papers. Earlier this year his attorney of record withdrew and he is not present in Court today.

n The applicant raises a number of grounds in support of his contention that he did not have a fair trial. They amount in fact to a claim that he was rushed to trial when his usual attorney, with whom he had consulted, was unable to be at court and in circumstances where a request for a postponement was declined by the second respondent. He therefore had a hurried consultation of ten minutes with an attorney whom he had only just that day been introduce to, and who had been sent to stand in for his usual attorney by the Legal Aid Board. That attorney gave him certain advice, as a result of which he pleaded guilty. No evidence was led in mitigation and by reason of the fact that the applicant has a number of previous convictions for similar offences, he was sent to prison for three years.


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o Not only does our Constitution guarantee a fair trial but it, in particular, makes reference to the fact that the right to a fair trial includes the right to choose and be represented by a legal practitioner and also to have a legal practitioner assigned to the accused person by the State at the State’s expense if substantial injustice would otherwise result.

p The uncontradicted facts indicate that the attorney who was due to appear and who had been properly instructed, was indisposed. When she did not arrive at court, applicant’s mother went to the legal aid office and third respondent then was nominated to appear for the applicant, in order to secure a postponement. According to the applicant’s uncontested evidence, the postponement was refused and indeed only a short period of time was afforded to him to speak to his attorney with a view to preparing for trial. Section 73(2) of the Criminal Procedure Act 51 of 1977 provides:

q ‘A accused shall be entitled to be represented by his legal adviser at criminal proceedings, if such legal adviser is not in terms of any law prohibited from appearing in the proceedings in question.’

r The idea of being represented by a legal adviser cannot simply mean having somebody stand next to you to speak on your behalf. Representation entails that the legal adviser will act in your best interest, will say everything that needs to be said in your favour, and will call such evidence as is justified by the circumstances in order to put the best case possible before the court in your defence.

s The facts of this matter are that there is no note whatsoever on the day in question in the magistrate’s manuscript notes that any application for postponement was even sought and therefore there are no recorded reasons why the application was refused. The uncontroverted evidence of the applicant is all that we have.

t In Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NmS) our erstwhile late Chief Justice Mahomed CJ delivered a judgment in which he collected the various issues relating to e question of postponement of trials and sought to set out a number of principles which should guide Courts. He drew attention to the fact that the trials Judge or presiding officer, has a discretion, as to whether an application for postponement should be granted; that that discretion should be exercised judiciously and not capriciously, nor upon any wrong principle, but only where there is substantial reason to exercise it in the manner chosen. An important point made by the learned Judge was that the trial court should be slow to refuse a postponement where the true reason for a party’s non-preparedness has been fully explained, where his unreadiness to proceed is not due to delaying tactics and where justice demands that he should have further time for the purpose of presenting his case.

u ‘It is, in my view, no answer for the magistrate to say that he gave the appellant the opportunity to engage the services of another attorney before proceeding with the trial. In the first place he only gave him one and- a- quarter hours in which to make other arrangements and in which to prepare for the further conduct of his trial, which can hardly be described as a reasonable opportunity to do what was necessary.

Secondly, and more important, there was no obligation on the appellant to engage the services of another attorney, he already had an attorney who had appeared for him at all stages of the trial up to then and he had no doubt incurred expenses in this connection. He was entitled to insist, as he in fact did, that his attorney be present before the case proceeded. The importance of the benefit of legal representation on an


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accused person cannot be under-emphasised and where an accused is reasonable in asking for time in order to enable him to obtain legal representation it is a request that should never be refused.’

w Finally, I want to make reference to S v Harris 1997 (1) SACR 618 (C), where at 622 c-f the Court said the following:

x ‘The decision whether or not to grant a postponement is in the discretion of the trial court. That discretion is to be exercised judicially and upon all the facts and circumstances pertaining to the matter.

The importance of legal representation and, where possible, a representative of the accused’s choice, are not to be underestimated. The gravity of the charge and the possible sentences and the complexity of the case are amongst the factors o be taken into consideration. So too is the remissiveness or otherwise of the accused in failing to arrange for his legal representation. A factor of lesser weight, as I shall show, is that a postponement, if granted, would interfere with the smooth administration of justice. If the trial court fails to exercise a discretion judicially, which is to say capriciously or in accordance with wrong principles or not on material grounds, then a Court of appeal will interfere with its decision. In this regard, prejudice to an accused flowing from the refusal of a postponement, is something virtually presumed where the effect of the postponement is to deprive him of legal representation.’

y In this matter the accused was not deprived of legal representation in the sense of having somebody stand up and speak on his behalf. He was, however, deprived of effective legal representation. If one has regard to the factors mentioned in the Harris case, the gravity of the charge and a possible custodial sentence must have been obvious to any legal adviser who had regard to the accused’s previous convictions.

z As far as the remissiveness of the accused is concerned I this particular case, the applicant was not remiss at all. It was not his fault that his regular legal adviser had taken ill and was unable to attend. As I have said, there are no reasons given for the refusal of the postponement, but it is abundantly clear that there was evidence which was crying out to the led on behalf of the applicant relating to his drinking problem, relating to the fat that he was having psychotherapy and psychiatric treatment. One of that evidence was put before the Court.

aa In these circumstances I am satisfied that the applicant has established that he did not have a fair trial. There is no need to consider any of the other grounds upon which he relies and I would set aside the conviction and sentence.

bb Carstens AJ concurred. Applicant’s Attorneys: Bisset Boehmke McBain.


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Beyers v Director of Public Prosecutions Question 1 In the headnotes the reader is expected to understand that the word or phrase missing after ‘What constitutes’ is 1. irregularity. 2. a trial. 3. failing to consult. 4. legal representation. Question 2 In the headnotes the reader is expected to understand that the word or phrase missing after When ‘When to be granted’ is 1. postponement. 2. a fair trial. 3. a just sentence. 4. legal representation. The letters A to D below identify four quotations from the headnotes. Use these quotations to answer questions 3, 4 and 5. A Idea of being represented by legal advisor cannot simply mean having

somebody stand next to one and speak on one’s behalf B Representation entails that legal advisor acts in client’s best interests C Presiding officer has discretion as to whether application for

postponement should be granted D Attorney failing to consult with and properly represent client Question 3 Which of the quotations above can be described as the legal principle on which the judge bases his decision? 1. A 2. B 3. C 4. D Question 4 Which of the quotations above can be described as the legal process that is under consideration in this hearing? 1. A 2. B 3. C 4. D


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Question 5 Which of the quotations above provides the grounds for the present hearing? 1. A 2. B 3. C 4. D Question 6 If paragraph f were read aloud, the word which should be given the greatest emphasis would be 1. applicant. 2. deprived. 3. effective. 4. legal. Question 7 The accused pleaded guilty at the first trial to a contravention of 1. the Constitution of the Republic of South Africa Act 108 of 1996. 2. the Road Traffic Act 29 of 1989. 3. the Criminal Procedure Act 51 of 1977. 4. 1, 2 and 3 are correct. Question 8 The summary notes that ‘No evidence was led in mitigation’ (paragraph c). The evidence which [the review judge believes] should have been led is 1. ‘his unreadiness to proceed is not due to delaying tactics’. 2. ‘he was entitled to insist, as he in fact did, that his attorney be

present before the case proceeded’. 3. ‘there was evidence that was crying out to be led on behalf of the applicant relating to his drinking problem’. 4. ‘relating to the fact that he was having psychotherapy and psychiatric treatment’. Question 9 ‘Evidence in mitigation’ (paragraph c) is evidence that will 1. influence the judge to impose a harsher sentence. 2. influence the judge to impose a more lenient sentence. 3. add to the seriousness of the offence. 4. include details of previous convictions. Question 10 The judge held (paragraphs e and f) that the trial court should grant a postponement


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1. if the applicant was ill-prepared through no fault of his own. 2. if the applicant was using delaying tactics. 3. if an attorney had been appointed by the Legal Aid Board. 4. capriciously and not judiciously Question 11 In paragraph f, the phrase ‘in casu’ means 1. just in case. 2. in order to make sure that. 3. in the case under review. 4. even though. Question 12 The applicant is asking for 1. leave to appeal his sentence. 2. the original conviction and sentence to be reviewed. 3. a postponement of the trial. 4. a new attorney as his original attorney took ill. Question 13 Three of the following words used in paragraphs p, s and x are synonyms. Which is the exception? 1. uncontradicted. 2. uncontested. 3. uncontroverted. 4. underestimated. Question 14 In the sentence ‘An important point made by the learned Judge was that the trial court should be slow to refuse a postponement where the true reason for the party’s non-preparedness has been fully explained . . . ‘ (paragraph t), the italicized words could be expressed in plain English as 1. … should be reluctant to allow a postponement. 2. … should not grant a postponement willingly. 3. … should be willing to grant a postponement. 4. … should delay a decision on a postponement. Question 15 The applicant in this case contends that he did not have a fair trial. He bases his contention on the fact that 1. evidence was not led in mitigation of sentence. 2. his request for a postponement was declined. 3. the replacement attorney did not act in his best interests.


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4. 1, 2 and 3 are correct. Question 16 The following cases are cited (paragraphs t – x):

A Myburgh Transport v Botha t/a SA Truck Bodies B S v Yelani

C S v Harris The case(s) that represent(s) the same principle as that applied in Beyers v Director of Public Prosecutions is/are 1. A. 2. A and B. 3. B and C. 4. A, B and C. Question 17 The differences between Beyers v Director of Public Prosecutions and S v Yelani are that 1. Beyers was invited to find a replacement for his original attorney,

whereas Yelani was not. 2. Yelani was invited to find a replacement for his original attorney, whereas Beyers was not. 3. Beyers refused to replace his original attorney, whereas Yelani accepted a new attorney. 4. Yelani refused to replace his original attorney, whereas Beyers accepted a new attorney. Question 18 Three respondents in this matter are mentioned. The second respondent 1. opposed the application. 2. is the magistrate who passed the original sentence. 3. is the applicant’s attorney of record. 4. is none of the above. Question 19 The first respondent in this case is 1. the magistrate in the original trial. 2. the Director of Public Prosecutions. 3. in disagreement with the decision of the Court in the original trial. 4. J Selikowitz.


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Question 20 The third respondent 1. declined a request for a postponement. 2. was appointed by the applicant’s mother to appear for the applicant. 3. was nominated by the legal aid office to appear for the applicant. 4. was indisposed and did not appear in court. Question 21 The judge states that ‘there is no note whatsoever … in the magistrate’s manuscript notes that any postponement was even sought and therefore there are no recorded reasons why the application was refused’. This implies that 1. the records were not properly kept. 2. the magistrate was remiss in that he should have known that legal

representation means more than simply having someone to stand next to you and speak on your behalf.

3. the attorney was remiss in that he should have known that legal representation means more than simply having someone to stand next to you and speak on your behalf.

4. all the above are correct. Question 22 ‘The gravity of the charge and a possible custodial sentence must have been obvious to any legal adviser who had Regard to the accused’s previous convictions’ implies that 1. the judge is critical of the attorney appointed for the accused. 2. the attorney appointed for the accused was negligent in that he did

not fully acquaint himself with his client’s record. 3. the applicant himself was remiss because he had previous convictions

for drunken driving. 4. 1 and 2 are correct. Question 23 The review was presided over by 1. A C Webster. 2. J Selikowitz. 3. J Selikowitz and A J Carstens. 4. Chief Justice Mahomed. Question 24 The last part of the final sentence ‘… I would set aside the conviction and sentence’ means that 1. the accused will serve the sentence only at a later date.


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2. the accused is freed with immediate effect. 3. the accused received a suspended sentence. 4. the accused is freed with immediate effect and this conviction is

erased. Question 25 The length of time in prison which the applicant avoids serving as a result of the decision in the review trial is 1. three years. 2. between two and three years. 3. between one and two years. 4. less than one year.

ANSWERS

1. 4 2. 1 3. 2 4. 2 5. 4 6. 3 7. 2 8. 2 9. 2 10. 1 11. 3 12. 3 13. 4 14. 3 15. 4 16. 4 17. 2 18. 2 19. 2 20. 4 21. 1 22. 2 23. 3 24. 4 25. 1


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S v SEABI AND ANOTHER:

620 S v SEABI AND ANOTHER 2003 910 SACR 620

S v SEABI AND ANOTHER TRANSVAAL PROVINCIAL DIVISION d VAN DER MERWE J and BOSIELO J 2002 June 28 Case No B181/2002 Trial — The accused — Accused a minor — Assistance of — By parent or e guardian — Father the complainant and also assisting accused — Father wishing that accused be punished ― Patently clear that father's interests and those of accused at loggerhead — Accused's father not able or willing to assist accused — Undefended accused having to contend with combined might and force of State prosecutor and his own father — In simple terms f accused not receiving fair trial — Dictates of fairness and justice demanding that entire proceedings be set aside as not being in accordance with justice. Plea — Plea of guilty — Duty of presiding officer — Although s 112(1) of Criminal Procedure Act 51 of 1977 doesn't specifically require that g accused who pleads guilty be asked if she or he pleads guilty freely, voluntarily and without any undue influence, it is both desirable and in keeping with constitutional ideals of ensuring fair trial for every accused, particularly unrepresented accused, that they be asked if their pleas are free, voluntary and without any undue influence — Failure to do so can result in travesty of justice where accused may be convicted and sentenced h on forced plea of guilty. The accused had been convicted on their pleas of guilty to a charge of stealing diesel from accused 1's father. During the trial proceedings accused 1, an 18-year-old, was assisted by his father. Neither of the accused were asked i whether they were pleading guilty freely and voluntarily. During the proceedings the father of accused 1 had intimated that he wished to have him punished. Held, that it was patently clear from the utterances of accused 1's father that his interests and those of accused 1 had been at loggerheads. Clearly accused 1's father had not been able or even willing to assist accused 1. He had been j

S v SEABI AND ANOTHER 621 2003 910 SACR 620 a in a serious and irreconcilable conflict of interests. As was to be expected, he had sacrificed the interests of accused 1 to advance his own selfish personal interests. It was seriously unthinkable that accused 1's father could have done anything that would assist accused 1 in his case. It was clear from his utterances that he had been interested only in a conviction, followed by direct imprisonment. It was clear from the record that the undefended accused 1 had to contend with the combined might and force of the State b prosecutor and his own father. In simple terms accused 1 had not received a fair trial. The dictates of fairness and justice demanded that the entire proceedings be set aside as not being in accordance with justice. (Paragraphs [8] and [9] at 622i-23e.


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Held, further, that although s 112 (1) of the Criminal procedure Act 51 of 1977 did not specifically require that an accused who pleaded guilty be asked if she or he pleaded guilty freely, voluntarily and without any undue influence, c it was both desirable and in keeping with the constitutional ideals of ensuring a fair trial for every accused, particularly unrepresented accused, that they be asked if their pleas were free, voluntary and without any undue influence. This was particularly important where the court had to deal with uneducated, illiterate and unsophisticated accused. A failure to do so could d result in a travesty of justice where an accused could be convicted and sentenced on 'a forced plea of guilty'. (Paragraph [10] at 623g-h.) Held, further, that in casu the proceedings in the magistrate's court had been vitiated by gross irregularities, which had culminated in a failure of justice. Annotations: e Reported case S v Naidoo 1989 (2) SA 114 (A) — dictum at 121E applied. Statutes The Criminal Procedure Act 51 of 1977, s 112(1): see Juta's Statutes of South Africa 2001 vol 1 at 1-295-1-296. Automatic review. The facts appear from the reasons for judgment. f Bosielo J: [1] This matter came before me on review in terms of s 302(1)(a)(i) and (ii) of the Criminal Procedure Act 51 of 1977. The two accused were charged with stealing 25 litres of diesel. Both accused were convicted on g their pleas of guilty. The magistrate then sentenced the accused as follows: 'Accused 1: Two thousand rand or one year imprisonment. Accused 2: Three thousand rand or one-and-a-half years' imprisonment.' h [2] After I had read the transcript, I had serious doubts as to whether the proceedings were in accordance with justice. As a result I prepared a query to the magistrate in the following terms: '1. Why did the magistrate permit the accused's father, who is the complainant, to assist the accused? Didn't the magistrate perceive a conflict of interests, i which could lead to a failure of justice? 2. Why he proceeded to sentence accused 1, who was 18 years old at the time without a pre-sentence report, particularly as there are suggestions, vague as they may appear, that he is naughty and problematic? See S v Z en Vier Ander Sake 1999 (1) SACR 427 (E) and S v Kwalase 2000 (2) SACR 195 (C). j S v SEABI AND ANOTHER 622 2003 910 SACR 620 a 3. Is the sentence imposed on accused 1, in the light of the facts of this case, not too severe or disturbingly inappropriate? 4. With regard to accused 2 is the sentence imposed, particularly in view of his personal circumstances and financial resources, not unrealistic, manifestly harsh and inappropriate? [3.1] In his response, the learned magistrate stated the following: 'Although not on record the complainant (father) was excused as an assistant b and did not play that role at all. The conviction was based on the questioning and answering of questions by the accused.' [3.2] Regarding the appropriateness of the sentence, the magistrate maintains


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that the sentences imposed are appropriate, as theft is a c serious offence which is prevalent not only in the district where the magistrate serves, but in the entire country. Consequently, the magistrate maintains that the conviction and sentence be confirmed. [4] In his detailed response, the Director of Public Prosecutions conceded that the proceedings during which the accused were convicted d are not in accordance with justice. The director of Public Prosecutions has raised additional irregularities. Inter alia, the Director of Public Prosecutions points out that the pleas of guilty tendered by both accused are irregular, as the two accused were never asked whether they pleaded guilty freely and voluntarily. Furthermore it appears clearly from the record that competent verdicts of theft and the legal implications thereof e were never explained to the accused. It is the unanimous view of the Director of Public Prosecutions that these irregularities are fatal and that the conviction and sentence of the accused should be set aside. [5] Reverting to the facts of the case, the record reveals clearly that at the commencement of the trial the magistrate explained the right to legal representation to both accused. Accused 1 was 18 years old. Accused 2 f was 20 years old. According to the record both accused elected to conduct their own defence. The two accused pleaded guilty to theft of 25 litres of diesel valued at R125. After some questioning in terms of s 112(1)(b) of Act 51 of 1977 the magistrate convicted accused 1 of theft g and accused 2 of receiving stolen property knowing it to have been stolen. [6] It is clear from the evidence that the stolen diesel belonged to accused 1's father. He is therefore the complainant in this matter. However, the court appointed accused 1's father to be his assistant during the trial. It does not appear anywhere in the record if accused 1 asked for his father's h assistance or whether he was asked if he accepts his father (the complainant again him) as his assistant during his trial. It is hardly surprising that accused 1's father is recorded to have made the following utterances against accused 1, the person he purported to assist: 'I have had enough of accused's conduct. He is always stealing from me. I want i him punished. He was home on 1983/09/4. He is not attending school as he is usually away to Johannesburg with criminals.' [8] It is patently clear from the utterances of accused 1's father that his interests and those of accused 1 were at loggerheads. Clearly accused 1's father was not able or even willing to assist accused 1. He was in a serious j

S v SEABI AND ANOTHER 623 2003 910 SACR 620 and irreconcilable conflict of interests. As was to be expected, he sacrificed the interests of accused 1 to advance his own selfish personal a interests. The Director of Public Prosecutions concedes that the involvement of accused 1's father in the trial as the assistant to accused 1 is a serious irregularity. [9] However, the question to be answered is whether this irregularity is b so serious that it can be said to have resulted in a failure of justice. It is a fundamental and time-honoured principle of our law that justice must not only be done but that it is imperative that for justice to survive and


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flourish, it must manifestly be seen to be done. What happened to accused 1 in this trial is unfortunate. It is seriously unthinkable that c accused 1's father could do anything that would assist accused 1 in his case. It is clear from his utterances that he was only interested in a conviction, followed by direct imprisonment. As a citizen of our country, which prides itself on a progressive and enlightened Constitution underpinned by an impressive Bill of Rights, accused 1 was indeed entitled to a fair trial, which conforms strictly to the basic notions of d fairness and justice. It is clear from the record that the undefended accused 1 had to contend with the combined might and force of the State prosecutor and his own father. I have no doubt that this kind of trial is not the fair trial envisaged by the Constitution of the Republic of South Africa Act 108 of 1996. In simple terms accused 1 did not receive a fair e trail. The dictates of fairness and justice demand that the entire proceedings be set aside as not being in accordance with justice. [10] As the Director of Public Prosecutions correctly pointed out, accused 2 was no better off than accused 1. He is recorded to have indicated that he intended to plead guilty to the charge of theft of diesel, which was read f out to him. Indeed accused 2 pleaded guilty to the charge. However, according to the record neither accused 1 nor accused 2 were ever asked if they pleaded guilty freely, voluntarily and without any undue influence. Although s 112(1) of Act 51 of 1977 does not specifically require that an g accused who pleads guilty be asked if he pleads guilty freely, voluntarily and without any undue influence, I am of the view that it is both desirable and in keeping with the constitutional ideals of ensuring a fair trail for every accused, particularly unrepresented accused, that they be asked if their pleas are free, voluntary and without any undue influence. This is particularly important where the court has to deal with uneducated, illiterate and unsophisticated accused. A failure to do so may result in a h travesty of justice where an accused may be convicted and sentenced on 'a forced plea of guilty'. The following dictum in S v Naidoo 1989 (2) SA 114 (a) at 121E is apposite and instructive: 'With due respect to the magistrate and the Court a quo, the position appears to me to be so clear that there is no room to expatiate generally on the manner i of application of s 112(1)(b). I would merely observe that it is well settled that the section was designed to protect an accused from the consequences of an unjustified plea of guilty, and that in conformity with the object of the Legislature our courts have correctly applied the section with care and circumspection ... .' (My own emphasis.) Furthermore I have found the views of Kriegler J in j

S v SEABI AND ANOTHER 624 2003 910 SACR 620 a Hiemstra Suid-Afrikaanse Strafproses 5th ed at 30000 to be equally illuminating: 'Pleitverrigtinge is die formele ingedingtrede waar die geskilpunte tussen die partye vasgelê word. Daarom is dit belangrik dat 'n onverteenwoordigde beskuldigde, vir sover nodig, daarby voorgelig word. Dit is te meer belangrik aangesien die hof ingevolge art 112 tot groot hoogte op mededelings deur die beskuldigde aangewese is en sonder enige getuienis 'n skuldgibevinding kan b inbring. Die eerste oogmerk van die pleitproses is immers om vas te stel of die


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beskuldigde vrywilling, bewustelik en ewe belangrik, betroubaar iedere element van die ten laste gelegde misdaad erken.'* (My own emphasis.) Without doubt, I am in respectful agreement with c the views expressed above. [11] Clearly it cannot be said that the pleas of guilty tendered by both accused 1 and 2 were made freely, knowingly and without any undue influence. The attitude and role played by accused 1's father raises serious suspicions about the fairness of the trial relating to accused 1. No civilised or enlightened system of criminal justice can allow accused to be d convicted on 'forced pleas of guilt'. This would be in serious conflict with s 35(3)(h) and (j) of the Constitution, Act 108 of 1996. [12] In the view that I take of this matter, I do not think that it is necessary to deal with the other irregularities raised by the Director of Public Prosecutions, including the appropriateness or otherwise of the e sentences imposed. In conclusion, I find that the proceedings herein were vitiated by gross irregularities, which culminated in a failure of justice. The conviction and sentence in respect of both accused 1 and 2 are hereby set aside. f Van der Merwe J concurred.

Seabi and Another

Question 1 In the head notes the reader is expected to understand that the word or phrase missing after Assistance of is

1. a minor. 2. parent or guardian. 3. attorney. 4. presiding officer.

The letters A to D below identify four quotations from the head notes. Use these letters in answering questions 2 and 3. A In simple terms accused not receiving fair trial. B Although S112 (1) of Criminal Procedure Act 51 of 1977 doesn't ... C Failure to do so can result in travesty of justice where accused ... D Undefended accused having to contend with combined might and force ... Question 2 Which of the quotations above could best be described as the appropriate legal principle on which the judge bases his decision?

1. A 2. B 3. C 4. D


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Question 3 Which of the quotations above led to the present hearing being held?

1. A 2. B 3. C 4. D

Question 4 The applicant in this case is asking

1. that the conviction and sentence be set aside. 2. that the conviction and sentence be confirmed. 3. for a postponement of the trial. 4. for leave to appeal the sentence.

Question 5 In the head notes the words ‘undefended accused’ means that the accused

1. refused to defend himself. 2. was defended by his father. 3. had no attorney to defend him. 4. was not in court to defend himself.

Question 6 The word 'held', (used between paragraph j to paragraph d pages 620 to 621) can best be understood to mean

1. 'the magistrate argued'. 2. it was the view of the director of Public Prosecutions'. 3. 'it was the judge's view'. 4. 'it is a fact'.

Question 7 Here are some of the actions relating to the trial of the accused in this case:

1. The accused was a minor who was assisted by a parent. 2. The accused's father and the accused were at loggerheads. 3. The accused's father was not able or willing to assist the accused. 4. The accused was assisted by his father who was the complainant at

the same time as he was assisting the accused. 5. The undefended accused had to contend with the combined might and

force of the state prosecutor and his father.

It is clear from the summary on page 620 that the two accused did not receive a fair trial because of

1. A only.


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2. A, B and C but not D or E. 3. A, B and D but not C and E. 4. B, C, D and E but not A.

Question 8 The two accused were convicted in the district magistrate's court based on

1. the assistance that the state prosecutor received from the accused's father.

2. their pleas of guilty to a charge of stealing diesel. 3. the intimations of accused 1's father that he wished to have his son

punished. 4. 1 and 2 are correct.

Question 9 Three of the following statements are correct. Which is the EXCEPTION?

1. The interests of the father and those of the accused were at odds. 2. The father sacrificed the interests of the accused to advance his own

selfish personal interests. 3. The father would have done anything to assist the accused in his

case. 4. The father was only interested in a conviction followed by direct

imprisonment. Question 10 The phrase in casu (between paragraph d and paragraph e on page 621) means

1. just in case. 2. in order to make sure that. 3. in the case under review. 4. even though.

Question 11 In this context the word ‘vitiated’ (between paragraph d and paragraph e on page 621) means

1. weakened. 2. strengthened. 3. destroyed. 4. supported.

Question 12 In this context, ‘forced plea of guilty’ (between paragraph d and paragraph e on page 621) means

1. the two accused were forced to plead guilty.


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2. the two accused voluntarily pleaded guilty. 3. the pleas of the two accused were not free, voluntary and without

undue influence. 4. 1 and 3 are correct.

Question 13 It is clear from the magistrate's response to the judge that

1. the father of the accused did not play a major role in the trial. 2. he convicted the two accused based on the answers that they gave to

the State prosecutor. 3. the tough sentence imposed on the two accused was appropriate. 4. 1 and 2 are both correct.

Question 14 It is clear from the notes (between paragraph g on page 621 and paragraph c on page 622) that the judge does not agree with the magistrate on the following issues:

1. that the reasons for convicting the two accused are satisfactory. 2. the appropriateness of the sentence. 3. that the proceedings were in accordance with justice. 4. All of the above.

Question 15 Three of the following are additional irregularities raised by the Director of Public Prosecutions. Which is the EXCEPTION?

1. The Director of Public Prosecutions pointed out that the pleas of guilty were irregular.

2. The competent verdicts of theft and the legal implications were not properly explained to the accused.

3. The involvement of the complainant in the trial as an assistant to the accused was a serious irregularity.

4. The sentence imposed on the accused was harsh and inappropriate. Question 16 The phrase inter alia means

1. in addition. 2. among other things. 3. in conclusion. 4. therefore.

Question 17


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On page 622 at e, the Director of Public Prosecutions’ unanimous view is… The best synonym for ‘unanimous’ in this context is

1. undeniable. 2. questionable. 3. undisputed. 4. debatable.

Question 18 This case is on review in the high court

1. in terms of S 112 (1) (b) of the Criminal Procedure Act 51 of 1977. 2. in terms of S 302 (1) (a) (i) and (ii) of the Criminal Procedure Act 51 of

1977. 3. because the judge has serious doubts as to whether the proceedings

were in accordance with justice. 4. Both 2 and 3 are correct.

Question 19 The following actions relate to the facts of the case:

A. At the beginning of the trial the magistrate explained the right to legal representation.

B. Accused 1 asked for and accepted his father's assistance in this trial. C. The father of accused 1 was excused as an assistant to his son in this

trial. D. Utterances of the complainant were used against accused 1. E. Neither of the accused was asked if they pleaded guilty.

Which of the above actions is/are not revealed in the court records?

1. A, B and D but not C or E 2. A, D and E 3. C, D and E 4. B and C but not A, D or E

Question 20 It is clear that the Director of Public Prosecutions concedes to the (between paragraph a and paragraph b on page 623)

1. Magistrate. 2. State prosecutor. 3. Judge. 4. accused.

Question 21


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The second accused in this case is convicted for

1. stealing 25 litres of diesel. 2. receiving stolen property knowing it had been stolen. 3. attempting to steal 25 litres of diesel. 4. 1 and 2 are correct.

Question 22 The principle of a fair trial is enshrined in

1. s (112) (1) of the Criminal Procedure Act 51 of 1977. 2. s 302 (1) (a) (i) and (ii) of the Criminal Procedure Act 51of 1977. 3. The Constitution Act 108 of 1996. 4. 1 and 2 are correct.

Question 23 In reviewing the case, on which irregularities does the judge base his final decision?

1. pleas of guilty 2. appropriateness of the sentences 3. the role played by accused 1's father 4. 1 and 3 are correct.

Question 24 In handing down his judgement the judge says, the conviction and sentence in respect of both accused 1 and 2 are hereby set aside. This means that the

1. accused will have to appear in court for a new trial. 2. accuseds’ sentences have been suspended. 3. accused are free to go home, because the case has been dismissed. 4. accused will have their sentence reduced.

Question 25 The statement ‘Van der Merwe J concurred’ means that

1. Bosielo agreed with the magistrate’s decision. 2. Van der Merwe admitted defeat. 3. Van der Merwe declared the review to be concluded. 4. Van der Merwe J agreed with Bosielo J's decision.

ANSWERS


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1. 2 2. 2 3. 4 4. 1 5. 3 6. 1 7. 4 8. 2 9. 3 10. 3 11. 1 12. 3 13. 4 14. 4 15. 4 16. 2 17. 3 18. 2 19. 4 20. 3 21. 2 22. 3 23. 4 24. 3 25. 4


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S v NTZWELI CAPE PROVINCIAL DIVISION JALI J and ERASMUS AJ 2000 November 17; December 15 Evidence – Trial-within-a-trial – When necessary – Evidence that dagga found in accused’s house – Accused alleging that search of house illegal and requesting that a trial-within-a-trial be held to determine admissibility of evidence obtained by means of search – Magistrate’s refusal to hold trial-within-a-trial amounting to a failure of justice. The accused had been convicted in a magistrate’s court of possession of dagga and was sentenced to a fine of R10 000 or three years’ imprisonment, the whole sentence being suspended for a period of five years on various conditions. It appeared that the conviction was based largely on the evidence obtained by a search of the house where the accused lived. At the trial the accused’s legal representative contended that the search was illegal and requested that a trial-within-a-trial be held to determine the admissibility of the evidence obtained by means of the search. The court refused this request. On appeal, Held, that the holding of a trial-within-a-trial would have enabled the court to establish whether the police had the necessary warrant and whether the appellant gave the police permission or not, without the accused being subjected to cross examination on the issue of his guilt. The court’s refusal to entertain the application had deprived the court the opportunity of establishing these facts. Held, further, that this failure meant that the evidence had been admitted before the question of its admissibility was determined; the defending attorney could not put his client in the witness box on the issue of the admissibility of the evidence in dispute without subjecting him to general cross-examination on the issue of his guilt. This had amounted to a failure of justice and rendered the trial unfair. In th light of the irregularity and the evidence as a whole the conviction had to be set aside. Appeal from a conviction in a magistrate’s court. JM Theron for the appellant. LJ Badenhorst for the State. Cur adv vult. Postea (15 December). Jali J: The appellant in this matter was found guilty in the magistrate’s court in Clanwilliam of possession of dagga on 9 September 1998. He was sentenced to a fine of R10 000 or three years’ imprisonment. The whole sentence was suspended for a period of five years on condition that the appellant was not found guilty of contravening s 4(b) or s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 during the aforesaid period of suspension. The appellant appeals against both conviction and sentence.

361

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362 S v NTZWELI JALI J 2001 (2) SACR 361 CPD The facts of the matter are briefly that on or about 10 July 1998 at or near Uitbreiding South, Clanwilliam, in the district of Clanwilliam, the accused was allegedly found in possession of 25 packets of dagga. The aforesaid dagga was found pursuant upon a search by the police who did not have the necessary search warrant. The aforesaid dagga was found in the lounge of a two-roomed house under certain crates. It is apparent that, when the police arrived at the house they knocked at the door and the appellant opened the door for them. They then proceeded to search the house. According to members of the police, the appellant gave them permission to search the house. Subsequent to that, they found the aforesaid dagga in the main room or lounge. Whilst they were searching, the appellant’s co-accused in the court a quo, came out of the other room in the house. The appellant and his co-accused were subsequently arrested and charged as set out above. The accused pleaded not guilty and stated in amplification of their plea that they had no knowledge of the dagga. They lived together in one room in the same dwelling. There are other people who come and live there. They also raised the issue of the constitutionality of the search in their plea explanation. At the close of the State case, the accused applied for a discharge in terms of s 174 of the Criminal Procedure Act 51 of 1977, which was unsuccessful. Thereafter the accused closed their case. The appellant’s co-accused was found not guilty and discharged. The appellant was convicted and sentenced as aforesaid. Both accused did not testify or lead any evidence in their defence. The appellant’s counsel has submitted that the conviction was inappropriate in a number of respects, including the fact that the house was searched without the necessary search warrant, and the accused did not consent to the search. Secondly, the fact that the appellant was never advised of the fact that he could refuse to have his house searched. Thirdly, the fact that the magistrate disallowed an application by the defence counsel for a trial-within-a-trial to be held to decide on the admissibility of the evidence which had been illegally or unconstitutionally obtained. Fourthly, that the magistrate misdirected himself in convicting the accused of possession of dagga when there was not any proof beyond reasonable doubt that he was the one who was in possession of dagga. I will firstly deal with the third point which was raised by the appellant’s counsel. This submission is, obviously, inter-linked with the first two points as well. When Inspector De Waal Visser, a member of the South African Police Dog Unit, was testifying, the appellant’s legal representative in the court a quo made an application for the holding of a trial-within-a-trial. The basis of the said application was that the appellant did not consent to the search of the house, and thus the search violated the appellant’s constitutional rights. The magistrate ruled against the holding of a trial-within-a-trial at that stage and said the necessity thereof would be considered after cross-examination. That was never done thereafter. In this Division, since the advent of constitutionalism in our country, there have been a number of judgments which have considered the

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363 S v NTZWELI JALI J 2001 (2) SACR 361 CPD question of whether the issue of admissibility of the evidence which was allegedly obtained in conflict with the accused’s fundamental right to a fair trial as contained in s 35 of the Constitution of the Republic of South Africa Act 108 of 1996 (‘the Constitution’), has to be decided in a trial-within-a-trial by the court. In S v Mhlakaza and others 1996 (2) SACR 187 (C), Van Deventer J held that an accused’s constitutional right to a fair trial, as contemplated in s 25(3) of the Constitution of the Republic of South Africa Act 200 of 1993 (‘the interim Constitution’), included the right to an interlocutory enquiry to decide on the admissibility of any evidence in respect of an alleged infringement of a constitutional right. The Court went on, further, to state that this enquiry would take the form of a trial-within-a-trial held in accordance with the common procedure in respect of the admissibility of admissions and confessions which are usually held in terms of the Criminal Procedure Act. In S v Mayekiso 1996 (2) SACR 298 (C) at 303H-I, Van Reenen J, who had to decide on the admissibility of evidence obtained in an unlawful search and seizure of the accused’s bag, followed the views of Van Deventer J in Mhlakaza’s case. However, Classen J sitting in the Witwatersrand Local Division in S v Mokoena 1998 (2) SACR 642 (W) doubted the correctness of the judgment of S v Mhlakaza (supra) in this regard. Classen J was of the view that the violation of the accused’s right to a fair trial merely affected the weight to be attached to such evidence. Bailey v The State Case No 215/200, an unreported judgment delivered on 31 August 2000 by the Full Bench of this Division, dealt with the admissibility of identification parade evidence. The Court held that there is a need to establish whether the challenge to unconstitutionally obtained evidence is directed at the admissibility of the evidence or the weight to be attached to same. According to the Court that inquiry will, in turn, determine whether a trial-within-a-trial is to be held or not. In his judgment, Van Deventer J had expressed the view that in such matters the approach which should be followed should be the one similar to the one followed by courts in deciding the admissibility of admissions and confessions. In S v De Vries1989 (1) SA 228 (A) at 233 H-J, Nicholas AJA dealt with the question of the need to have a trial-within-a-trial to decide on the admissibility of a confession and also the fact that the question of the accused’s guilt should not be considered in a trial-within-a-trial. At 233H-J the Court held: ‘It is accordingly essential that the issue of voluntariness should be kept clearly distinct from the issue of guilt. This is achieved by insulating the inquiry into voluntariness in a compartment separate from the main trial. In England the enquiry into voluntariness is made at a “trial on the voir dire”, or, simply, the voir dire, which is held in the absence of the jury. In South Africa it is made at a so-called “trial-within-a-trial. Where therefore the question of admissibility of a confession is clearly raised, an accused person has the right to have that question tried as a separate and distinct issue. At such trial, the accused can go into the witness-box on the issue of voluntariness without being exposed to

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364 S v NTZWELI JALI J 2001 (2) SACR 361 CPD general cross examination on the issue of his guilt. See also S v Mofokeng 1992 (2) SACR 261 (O). Section 35(5) of the Constitution provides that evidence obtained in a manner that violates any 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. The second enquiry is to establish whether the refusal by the magistrate to hold a trial-within-a-trial ‘rendered the trial unfair or was detrimental to the administration of justice’ in this case. Kriegler J in Key v Attorney General Cape of Good Hope Provincial Division and Another 1996 (4) SA 187 (CC) at para [13], adopted a very flexible approach which leads to the consideration of the admissibility of unconstitutionally obtained evidence on a case-by-case basis. This judgment was dealing with the right to a fair trial in the interim Constitution. However, I am of the view that the same approach would apply to the right to a fair trial contained in the new Constitution (s 35(3)). In S v Zuma and Others 1995 (4) BCLR 401 (CC) at 411G-412A, Kentridge AJ pronounced that ‘the right to a fair trial’ conferred by the Constitution embraces ‘a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force’. He went on to state that courts hearing criminal trials and criminal appeals had to give content to the ‘notions of basic fairness and justice’. The holding of a trial-within-a-trial would have enabled the court a quo to establish whether the police had the necessary warrant and whether the appellant gave the police permission or not, without the accused being subjected to cross-examination on the issue of his guilt. The court’s refusal to entertain the said application deprived the court the opportunity of establishing these facts. The State counsel argued that the court should draw an adverse inference because of the appellant’s failure to testify. The fact that the appellant chose to close his case prior to testifying does not mean that the mischief which was sought to be protected by the courts in S v De Vries, S v Mhlakaza and S v Mayekiso did not arise. In my view the fact that the accused exercised his right to remain silent and did not testify does not make the magistrate’s actions any fairer. The State bears the onus to prove his guilt. One cannot condone unfairness or an injustice because the accused person chose to exercise his other right which is enshrined in the Constitution. That approach would be tantamount to saying an accused person is entitled to a quota of rights otherwise judicial officers can ride roughshod over all his other rights once he has obtained protection in respect of his quota for that particular trial. I am of the view that the magistrate’s failure to proceed to hear the evidence on the voluntariness of the search of the appellant’s house in a trial-within-a-trial has consequences which are three-fold. Firstly, the evidence was admitted before the question of its admissibility was determined. Secondly, the defending attorney could not put his client in the witness box on the issue of admissibility of the evidence in dispute, if he decided to do so, without subjecting him to general cross -

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365 S v NTZWELI JALI J 2001 (2) SACR 361 CPD examination on the issue of his guilt. Thirdly, the appellant’s application, the consideration of which was deferred to the end of the cross-examination of Inspector Visser, was never conclusively dealt with. Furthermore, the failure by the magistrate to hold the trial-within-a-trial encouraged the very mischief which the rule as enunciated in S v Mhlakaza and S v De Vries seeks to avoid. Furthermore, in casu, not even the inquiry, as anticipated in S v Bailey to establish the nature of the constitutional objection, was held by the magistrate. In the circumstances I am of the view that there was a failure of justice in this matter and such rendered the trial unfair. The procedure of a trial-within-a-trial has been developed to ensure that an accused person receives a fair trial. Accordingly, refusal to have a trial-within-a-trial would amount to an infringement of an accused person’s constitutional right to a fair trial. I will turn to consider the merits in this matter. If one considers the evidence led, it is apparent that there were two people in the house on the night in question. The appellant was one of the two. The two accused people did not testify. There was no evidence as to the ownership of the dagga found on the said day. The magistrate then drew an inference that the appellant must be the possessor of the dagga. Notwithstanding the absence of the evidence relating to ownership, the magistrate proceeded to convict the appellant and released his co-accused. The basis for the aforesaid decision was the fact that members of the South African Police Service had testified they knew the appellant to be living in the aforesaid house. Notwithstanding the fact that members of the SAP knew that the appellant lived in the aforesaid house, as, according to their evidence, they had always found him in the house when they were looking for him, there was still no evidence to indicate that the appellant was the possessor or owner of the dagga found on the premises. The respondent’s counsel has argued that an inference can be drawn that it belonged to the appellant. I cannot find any objective facts from which to infer such. The dagga was found hidden under crates in the one room. The fact that the appellant lived in the house or that he opened the door does not mean that he possessed the dagga. There was no evidence to suggest that he was the only one who had access to his room or the crates. The dagga may have belonged to the appellant’s co-accused for that matter. In the absence of any evidence to prove the actual or constructive possession of the aforesaid dagga, or any other proven objective facts to support the drawing of such inference, this Court is of the view that the magistrate misdirected himself in drawing such inference against the appellant whilst not doing so against his co-accused. In S v Mello and Another 1998 (7) BCLR 908 (CC), and 1998 (3) SA 712 (CC), the Constitutional Court held that the presumption contained in s 20 of Act 140 of 1992 to the effect that where any drug was found in the immediate vicinity of the accused person, it shall be presumed, until the contrary is proved beyond a reasonable doubt, that the accused person was found in possession of such drug, was found to be unconstitutional. This provision was found to impose a burden of

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366 S v NTZWELI JALI J 2001 (2) SACR 361 CPD proof on the accused, a so-called ‘reverse onus’, to disprove an essential element of a charge which was found to be contrary to the provisions of s 25(3)(c) of the interim Constitution, which entrenched the presumption of innocence and the right to remain silent. I have no doubt in my mind that the conviction in this matter should be set aside also because of the magistrate’s misdirection with regard to the merits of the matter which led to the conviction of the appellant. In the absence of the presumptions regarding possession or any evidence to prove the intention to possess (animus possidendi) or the possession of dagga (detentio) by the appellant, I cannot find the bias upon which the magistrate drew the inference which led to the conviction of the appellant. On the other hand, the appellant’s co-accused was found not guilty. The two accused were in the same house at the same time. Accordingly, I cannot find the justification for the conviction of one and the release of the other. In the light of the aforegoing the order I will give, will be as follows:

1. The appeal succeeds; 2. The conviction and sentence are set aside.

Erasmus AJ concurred.

a b c d e

S v Ntzweli Question 1 The purpose of this trial is to establish whether or not

1. Ntzweli is guilty of the possession of dagga 2. The evidence against Ntzweli is admissible or not 3. The magistrate was right to refuse Ntzweli a trial-within-a-trial 4. 1 and 2

Question 2 It is clear from the paragraph at d on page 361 that, whether or not this appeal succeeds, the accused

1. Is going to pay a fine of R10 000 2. Is going to spend three years in jail 3. 1 and 2 4. Neither 1 nor 2

Question 3 The counsel for the appellant argued that

1. The search the police conducted in the accused’s house was illegal 2. The evidence gained from searching the defendant’s house was

inadmissible 3. The appellant gave the police permission to search the house


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4. 1 and 2

Question 4 The sense in which the word ‘entertain’ is used in this context (paragraph at e on page 361) is

1. ‘to provide amusement for (a person or audience)’ 2. To show hospitality to (guests)’ 3. To hold in the mind: to entertain an idea’ 4. To accept or allow (a proposal)’

Question 5 Judging from the first two paragraphs on page 362, the concept of ‘being in possession’ of dagga includes

1. Having it on your person 2. Having it among your possessions 3. Living in the house where it is discovered 4. Knowing the people to whom it belongs

Questions 6, 7, 8 and 9 test your ability to improve the style of the following sentence from paragraph a on page 362: ‘The aforesaid dagga was found pursuant upon search by the police who did not have the necessary search warrant.’ Question 6 Here are two possible changes:

A. Delete ‘aforesaid’ B. Replace ‘pursuant upon’ with ‘during’

It would be in keeping with the principles of Plain English to do

1. A only 2. B only 3. Both A and B 4. Neither A nor B

Question 7 Here are three reasons for using the passive:

A. To defuse hostility – actives are more blunt B. To avoid having to say who did the action C. To focus attention on the receiver of the action by putting it first

The sentence quoted above is in the passive voice. It would be best to

1. Leave it in the passive voice, since A applies 2. Leave it in the passive voice, since B applies 3. Leave it in the passive voice, since C applies 4. Change it to the active voice, since none of them apply


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Question 8 If you were (nevertheless/therefore) to change the sentence into the active voice, you would begin it with

1. ‘Pursuant upon …’ 2. ‘A search …’ 3. ‘The police …’ 4. ‘The necessary search warrant …’

Question 9 It would be more logical to move the reference to the lack of a search warrant to the next paragraph and to link it to

1. ‘… when the police arrived at the house …’ 2. ‘They then proceeded to search the house’ 3. ‘… the appellant gave them permission to search the house’ 4. ‘Whilst they were searching …’

Question 10 The phrase ‘the appellant’s co-accused in the court a quo’ refers to

1. Ntzweli’s roommate in the house where the dagga was found 2. The original trial in the magistrate’s court 3. The other appellant, who is also appealing against the magistrate’s

decision 4. 1 and 2

Question 11 In this context, the phrase ‘in amplification of’ (c on page 362) means

1. ‘in expanding on’ 2. ‘instead of’ 3. ‘in increasing’ 4. ‘contrary to’

Question 12 The phrase ‘which was unsuccessful’ (e on page 362) refers to

1. The close of the State case 2. The State case itself 3. The accused’s application for a discharge 4. The Criminal Procedure Act 51 of 1977

Question 13 In the sentence ‘thereafter the accused closed their case’ (at e on page 362), the word their refers to Ntzweli

1. And his legal representative 2. And his roommate 3. And his roommate and their legal representative 4. Only, and should therefore be replace with his


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Questions 14 to 18 deal with the following five assertions by the appellant’s counsel (the paragraph at f and g on page 362):

A. The house was searched without the necessary search warrant B. The accused did not consent to the search C. The appellant was never advised that he could refuse to have his

house searched D. The magistrate disallowed an application for a trial-within-a-trial E. There was not any proof beyond reasonable doubt that the dagga

belonged to the accused

Question 14 The assertion which is in conflict with a claim made by the police is

1. A 2. B 3. C 4. E

Question 15 The assertion which casts doubt on the magistrate’s ability to decide on issues of guilt is

1. A 2. C 3. D 4. E

Question 16 The assertion which relates to the appellant’s right to a fair trial is

1. A 2. C 3. D 4. E

Question 17 The assertion which relates to the appellant’s constitutional rights is

1. A 2. B 3. C 4. D

Question 18 Although it is not stated anywhere in this case report, the onus in assertion C must surely lie with

1. Educational institutions and the public press 2. The police when the accused opened his door to them 3. The accused’s defence counsel 4. The magistrate in the original trial


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Question 19 A term which is used with more or less the same meaning as trial-within-a-trial is

1. ‘court a quo’ 2. ‘cross examination’ 3. ‘interlocutory enquiry’ 4. ‘criminal appeal’

Question 20 Here are three points of view on the admissibility of evidence:

a. Hold a trial-within-a-trial to decide the admissibility of evidence b. Do not hold a trial-within-a-trial but give less importance to evidence

that might not be admissible c. Decide between A and B as seems appropriate in each new case

Here are three cases which between them reflect these points of view:

A. S v Mhlakaza and others (from b on page 363) B. S v Mokoena (d-e on page 363) C. Key v Attorney General Cape of Good Hope Provincial Division and

Another (c on page 364)

The correct matching of points of view and cases is

1. Aa Bb Cc 2. Ab Bc Ca 3. Ac Ba Cb 4. Ab Ba Cc

Question 21 It is clear from the discussion on pages 363 and 364 that the main function of considering the admissibility of evidence in a trial-within-a-trial and not in the trial itself is to

1. Protect the accused’s fundamental right to a fair trial 2. Keep the issue of admissibility of evidence separate from the issue of

the guilt of the accused 3. Conform with the spirit and letter of the Constitution 4. Emphasize the importance of following correct procedures in obtaining

evidence

Question 22 The italicized words in this sentence: ‘The State counsel argued that the court should draw an adverse inference because of the appellant’s failure to testify’ (g on page 364) means simply that the court

1. Will get a bad reputation if the appellant doesn’t co-operate 2. Should increase the penalty if the appellant does not appear at his

own trial 3. Should interpret the appellant’s silence as a sign of guilt


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4. 1 and 2

Question 23 The ‘mischief’ (at g on page 364) refers to

1. The 25 packets of dagga found in the accused’s home 2. The failure of the police to obtain a search warrant before visiting the

accused’s home 3. The guilt of De Vries, Mhlakaza and Mayekiso in the three trials cited 4. Unfairness in the three trials cited

Question 24 The reference to ‘his other right’ (h on page 364) is a reference to his right to

1. Insist on a search warrant before allowing the police into his home 2. A trial-within-a-trial to establish the admissibility of the evidence

against him 3. Be considered innocent until proven guilty 4. Remain silent

Question 25 In considering ‘the merits in this matter’, the judge overrules the conviction and sentence in the original trial. Three of the following are reasons why he does so. Which one is the exception?

1. Living in a house where dagga is found is not proof of possession 2. The ‘reverse onus’ which section 20 of Act 140 of 1992 places on

someone found in the vicinity of drugs is unconstitutional 3. There is no difference between the accused and his co-accused in

their link with the dagga 4. The appellant was entitled to a trial-within-a-trial but did not get one

ANSWERS 1. 3 2. 4 3. 4 4. 4 5. 3 6. 3 7. 3 8. 3 9. 2 10. 4 11. 3 12. 3 13. 3 14. 2


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15. 4 16. 3 17. 1 18. 2 19. 3 20. 4 21. 2 22. 3 23. 4 24. 4 25. 4


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BOPAPE AND ANOTHER v MOLOTO A TRANSVAAL PROVINCIAL DIVISION MARITZ J 1999 February 18, 22 Case No. 4385/98 B Husband and wife — Proprietary rights — Marriage in community of property — Effect of s 15(3) of Matrimonial Property Act 88 of 1984 — Husband making donation without consent of wife — Where consent lacking, alienation unlawful and of necessity void — Fact that alienation can be ratified merely providing that juristic act can be completed by later consent — Once clear that required consent not sought or given, illegality C follows and particular juristic act cannot survive. The second plaintiff, who was married in community of property to the first plaintiff, had, during an illicit relationship with the defendant, made certain payments to the defendant. The plaintiffs instituted action for repayment of those sums paid to the defendant on the basis that they constituted D donations which were invalid in terms of s 15(3)(c) of the Matrimonial Property Act 88 of 1984, which prohibited donations made from the joint estate without the consent of the other spouse. The defendant contended inter alia that the prohibition was only effective as between the spouses and the aggrieved spouse had a remedy, in that an adjustment in favour of the aggrieved spouse would be effected upon division of the joint estate and, E further, that the fact that, in terms of s 15(4), consent could be given by way of ratification indicated that the alienations could not be void ab initio for want of consent. Held, that there was not sound reason why an aggrieved spouse should suffer prejudice pending the possible eventual division of the join estate, which might or might not come about. It could also have been prejudicial to an F aggrieved spouse to seek a division of the joint estate in terms of s 20 of the Act. To accommodate a lawful donation or an alienation without value, the consent of both spouses was required. When it was clear that such consent was absent, the alienation could not be lawful. It followed of necessity that such alienation was void. (At 386J-287B.) Held, further, that the Legislature had merely provided for the manner in which G informal consent could be given. The particular juristic act was incomplete without the consent of the other spouse and therefore without any force or effect. Section 15(4) merely provided that the juristic act could be completed by later consent. Once it was clear that the required consent had neither been sought nor given, illegality followed and the particular juristic act could not survive. (At 388E-F.) H Held, further, that the moment the causa for the acquisition fell away, it followed of necessity that the particular asset or assets had to be returned whence it or they came, being the joint estate. The defendant had no right to retain what she had received and the plaintiffs had every right to recover it. (At 388F-G.) I

Annotations: Reported cases Amalgamated Banks of South Africa Bpk v De Goede en ‘n Ander 1977 (4) SA 66 (SCA): dictum at 82C applied Amalgamated Banks of South Africa Bpk v Lydenburg Passasiersdienste BK en Andere 1995 (3) SA 314 (T): dictum at 322F-I applied.


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383 J

384 BOPAPE AND ANOTHER v MOLOTO MARITZ J 2000 (1) SA 383 TPD Avis v Verseput 1943 AD 311: referred to. A Statutes

The Matrimonial Property Act 88 of 1984, ss 15(3)(c), 15(4) and 20: see Jutas’ Statutes of South Africa 1998 vol 5 at 2-158-2-159.

Civil trial in action for repayment of a donation made contrary to B s 15 of the Matrimonial Property Act 88 of 1984. The facts appear from the reasons for judgment.

M Snyman for the plaintiffs. P Ellis for the defendant. Cur adv vult.

Postea (February 23). C

Maritz J: In this matter I have been favoured with written heads of argument, for which I am indebted to counsel. First and second plaintiffs were married in community of property in D 1974. Two children were born of the marriage. In 1982 second plaintiff started an extra-marital affair with the defendant. In 1984 first plaintiff became aware of the affair and confronted second plaintiff. Second plaintiff confessed and undertook to end his relationship with the defendant. He never did. E Defendant had been resident in Lenyenye. At the end of 1986 or the beginning 1987 she moved to Seshego in Pietersburg. Second plaintiff paid for the rental of the house occupied by defendant. Defendant also attended a college in Pietersburg for which second plaintiff paid. It appears that from about 1990 defendant was employed by the Lebowa Corporation and that roundabout the same time she bought her own F house in Pietersburg. She stayed in close proximity to the plaintiffs. The relationship between second plaintiff and defendant continued unabated. On the evidence before me, defendant knew throughout, as from about 1984, that plaintiffs were married as aforesaid. G In 1996 defendant requested second plaintiff to obtain a dwelling for her. They decided that their purposes would best be served if a house were to be acquired at a place other than Pietersburg and they decided on Potgietersrus. In September 1996 defendant bought an unimproved residential erf in Potgietersrus for a purchase consideration of R24 690. Second plaintiff gave defendant R10 000, of which R9 000 was used to pay the deposit on the erf. Second plaintiff thereafter continued to pay H monthly instalments on the erf until the full purchase price was paid. This occurred at the end of August 1997. Second plaintiff then obtained the services of an architect, one Ramonyane, to draw building plans for a dwelling to be erected on the erf in Potgietersrus. It appears that at the same time second plaintiff undertook the building of a new dwelling in I Pietersburg for himself and his family. With minor alterations, the building plans for these two dwellings where identical. Both dwellings have been completed.


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While the building of the two dwellings was in progress, second plaintiff had occasion to go on vacation to Cape Town with his children in December 1997. Defendant also went on vacation to Cape Town J

BOPAPE AND ANOTHER v MOLOTO 385 MARITZ J 2000 (1) SA 383 TPD accompanied by her children. It is clear that second plaintiff and defendant arranged matters so as to have been able to share a vacation A and second plaintiff paid for defendant’s expenditure. Apparently second plaintiff and defendant were so brazen that plaintiffs’ second son gathered what was afoot and this was conveyed to first plaintiff. First plaintiff confronted second plaintiff but she was met with denials. B Early in 1998 first plaintiff had occasion to meet defendant by chance in a bank in Pietersburg and a very unpleasant incident between them ensued. Roundabout the same time, plaintiffs’ youngest son threatened to shoot defendant. The entire matter became rather nasty and the upshot was that second plaintiff confessed his enduring relationship C with defendant to the first plaintiff, as well as the fact that he was building a dwelling for her. First plaintiff did not take this lying down. Chief Chris Mothiba is a friend and confidant of the plaintiffs of longstanding. First plaintiff asked him to intervene and to persuade the defendant to repay the expenditure by second plaintiff on her dwelling in Potgietersrus to the joint estate. Defendant refused and this litigation D ensured in which plaintiffs claim repayment of the expenditure on her behalf. It must also be said that second plaintiff conducts a business under the name and style of Lebogang Electrical Appliances and Contractors (I will refer to it is Lebogang Electrical hereafter). All payments towards E the building of the dwelling in Potgietersrus were made through the banking account of such business. I shall speak of all payments having been made by second plaintiff. Second plaintiff testified that at the meeting between defendant and Chief Mothiba which he attended, defendant became acrimonious and ended the relationship between them and that the relationship has in fact F been ended. There is not much to be said morally for defendant and second plaintiff, but I will endeavour not to have my judgment clouded thereby. The manner in which plaintiffs sought to prove the quantum of their claim was to refer to 57 cheques which were drawn on the account of Lebogang Electrical and which were paid. These payments were related G to invoices for building material supplied and services rendered. Thus the total amount claimed was R221 458,14. During the course of the trial it appeared that some items had been duplicated or not used in building the dwelling and that no allowance had been made for VAT repayments. The claim was therefore reduced to R194 159,95. H The claim is founded in the provisions of s 15 of the Matrimonial Property Act 88 of 1984 (to which I will hereafter refer as the Act). In short the plaintiffs’ case amounts to this: That the said expenditure amounts to a donation which falls foul of the provisions of the Act. If the said expenditure were found to have been a donation, it is abundantly I clear that first plaintiff never consented thereto nor would she have done so. Plaintiffs rely on the illegality of the alleged donation for the claim of


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repayment. It also needs to be said that second plaintiff personally supervised the construction of the dwelling. He attended the erf with the defendant to choose the building site. He instructed the aforesaid architect. He also J

386 BOPAPE AND ANOTHER v MOLOTO MARITZ J 2000 910 SA 383 TPD employed a builder and ordered most if not all of the building materials. A He attended the building site on virtually every second day during weekdays. Both plaintiffs testified and they adduced the evidence of Chief Mothiba and the builder, Lukas Motiga. Defendant applied for absolution from the instance, which I refused, B whereupon defendant closed her case without adducing evident. Mr Ellis, on behalf of defendant, raised three defences to the claim. Firstly, he contends that the provisions of s 15 of the Act do not afford plaintiffs a right of recourse against defendant. Secondly, he contends C that the expenditures out of the plaintiffs’ joint estate do not constitute a donation. Thirdly, he argues that the extent of the claim has not been proved and that, in any event, what has been proved does not accord with the pleadings. I shall deal with these contentions in the order that I have listed them. Section 14 of the Act has done away with the erstwhile marital power. It reads as follows: D ‘Subject to the provisions of this chapter, a wife in a marriage in community of property has the same powers with regard to the disposal of the assets of the joint estate, the contracting of debts which lie against the joint estate, and the management of the joint estate as those with which a husband in such a marriage had immediately before the commencement of this Act.’ Section 15(1) is in the same vein and reads as follows: E ‘Subject to the provisions of ss (2), (3) and (7), a spouse in a marriage in community of property may perform any juristic act with regard to the joint estate without consent of the other spouse.’ Subsection (2) of 15 then provides that: ‘Such a spouse shall not without the written consent of the other spouse ...’ and then follows a listed number of juristic acts. Subsection (3)(c) of F s 15 then provides as follows: ‘A spouse shall not without the consent of the other spouse ― (c) donate to another person any asset of the joint estate or alienate such an asset without value, excluding an asset of which the donation or alienation does not and probably will not unreasonably prejudice the interest of the other spouse in the joint estate, and which is not contrary to the provisions G of ss (2) or para (a) of this subsection.’ This prohibition is couched in peremptory terms. As to the form of consent, there are no formal requirements. In the instant case consent was undoubtedly absent and nothing further need H be said about it. Mr Ellis has argued that, despite the prohibition in the Act, a donation or an alienation without value without the required consent has no effect other than between the spouses. He argues that in terms of s 15(9)(b) of the Act the aggrieved spouse has his or her remedy. Should the joint estate suffer a loss as a result of a transaction without the required consent, an I adjustment shall be effected in favour of the other spouse upon the


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division of the joint estate. Mr Ellis further points out that a division of the joint estate is possible in terms of s 20 of the Act. I do not agree. There is no reason to limit the remedies of an aggrieved spouse to the J four corners of s 15(9)(b) of the Act. There is no sound reason why an

BOPAPE AND ANOTHER v MOLOTO 387 MARITZ J 2000 (1) SA 383 TPD aggrieved spouse should suffer prejudice pending a possible eventual A division of the joint estate, which may or may not come about. It may also be prejudicial to an aggrieved spouse to seek a division of the joint estate in terms of s 20 of the Act. To accomplish a lawful donation or an alienation without value, the consent of both spouses is required. When it is clear that such consent is absent, the alienation cannot be lawful. In my view it follows of necessity that such alienation is void. B In Amalgamated Bank of South Africa Bpk v Lydenburg Passasiersdienste BK en Andere 1995 (3) SA 314 (T) at 322F-I the following was stated: ‘Namens die eiser is betoog dat die aangaan van ‘n borgakte teenstrydig met die bepalings van subarts ( )(h) en (5) nie nietig is nie, veral in die lig van die feit dat die Wet nie so bepaal nie en ook omdat daar geen strafbepaling vir so ‘n C handeling in die Wet is nie. Die beginsels wat toegepas moet word, word uiteengesit in Swart v Smuts 1971 (1) SA 819 (A) te 829 in fine-830C. Sien ook Metro Western Cape (Pty) Ltd v Ross 1986 (3) SA 181 (A) te 188F. Die bewoording van art 15(2) is gebiedend: “So ‘n gade mag nie ...” (“such D a spouse shall not”). Uitsonderings word in subarts (5) en (6) geskep; wat subart (5) betref, word formele vereistes neergelê om die ander gade te beskerm. Subartikel (6) bepaal dat, in sekere besondere omstandighede wat om die een gade wentel, hy ‘n borgakte kan onderteken sonder the vereiste toestemming van die ander gade. Om te betoog dat nie nie-nakomding van subart (2)(h) nie tot nietigheid lei nie, sal die gevolg hê dat subarts (5) en (6) irrelevant is, wat nooit die bedoeling van die Wegewer kon gewees het nie. E Die feit dat die verbod in subart (2)(h) in die negatief gestel is en dat daar ook geen strafbepaling vir oortreding daarvan is nie, kan nie tot ‘n ander uitleg lei noe. Die bewoording en die bedoeling van art 15 in die geheel is voor-die-handliggened: ‘n borgakte deur ‘n gade aangegaan waar subarts ( 5) en (6) nie van toepassing is nie is nietig. Hierdie nietigheid is nie alleen gemik op borgaktes nie maar ‘n heel reeks aktiwiteite wat ‘n gemeenskaplike boedel nadelig kan affekteer (vergelyk art 15(2)(a)-(g) en ook art 15(3)).’ F Although the learned Judge’s remarks in regard to s 15(3) of the Act appear to have been obiter, the reasoning adopted is nevertheless sound and persuasive. Although the Supreme Court of Appeal reversed the aforesaid judgment on appeal on the merits, the aforesaid remarks by the G learned Judge were not met with disfavour. (See Amalgamated Banks of South Africa Bpk v De Goede en ‘n Ander 1997 (4) SA 66 (SCA).) I respectfully find the following dictum by Streicher AJA in his dissenting judgment in the latter case at 82C apposite: ‘Dit is dan ook ‘n algemene reël van wetsuitleg dat, by die uitleg van H regstellende wette, die regstelling sover as wat die woorde toelaat uitgebrei behoort te word. (Sien Looyen v Simmer & Jack Mines Ltd and Another 1952 (4) SA 547 (A) op 554C en Kinekor Films (Pty) Ltd v Dial-a-Movie 1977 (1) SA 450 (A) op 461D.)’ In my view the dictum supports the finding of the learned Judge in the I


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Court a quo which I have quoted above. See further Joubert (ed) The Law of South Africa (first re-issue) vol 16, para 73 at 99 where the following is remarked: ‘The Matrimonial Property Act makes no direct pronouncements on the validity of acts requiring the consent of the other spouse which are entered into without such consent except in one case. A distinction can be drawn between J

388 BOPAPE AND ANOTHER v MOLOTO MARITZ J 2000 (1) SA 383 TPD (a) instances where a third party does not know and cannot reasonably know that he is entering into a transaction without the consent of the other spouse as required (b) instances where he does know and A (c) instances where he does not know, but can reasonably be expected to know that this is the position. In the first mentioned instance the Act deems the transaction to be one entered into with the required consent. In respect of the other instances the Act is silent B and the better view appears to be that the transaction is void.’ In footnote 4 the learned authors rely on Van Wyk 1985 De Rebus 22, Van Aswegen 1984 MB 146 and Barnard, Cronje and Olivier Persons and Family Law at 219, but points out that Sinclair An Introduction to the Matrimonial Property Act 1984 at 20 says that the acts are not invalid. C However, Mr Ellis pointed out that s 15(4) provides as follows: ‘The consent required for the purpose of paras (b) to (g) of ss (2), and ss (3) may, except where it is required for the registration of a deed in a deeds registry, also be given by way of ratification within a reasonable time after the act concerned.’ He argues that an alienation which is void ab initio cannot be ratified. D As a general rule this is so. However, I do not consider that this is the true meaning to be ascribed to the provision. The Legislature has merely provided for the manner in which informal consent may be given. The particular juristic act is incomplete without the consent of the other spouse and therefore without any force or effect. This E provision merely provides that the juristic act may be completed by later consent. Once it is clear that the required consent was neither sought nor given, illegality followed and the particular juristic act cannot survive. Furthermore it would smack of injustice if a paramour were to be F allowed to retain gains which are clearly prejudicial to a joint estate. The moment the causa for the acquisition falls away, it follows of necessity in my view that the particular asset or assets must return whence it or they came, being the joint estate. In my view defendant has no right of retaining what she has received and the plaintiffs have every right to G recover it. Secondly, relying on Avis v Verseput 1943 AD 311, Mr Ellis contended that ‘donation’ should be narrowly construed . In this regard he stressed the element of pure liberality. He argued that the evidence demonstrates that the motive of second plaintiff was also to benefit himself in H advancing his affair with the defendant and in facilitating it. It is difficult to imagine an unfaithful husband acting out of pure liberality in showering his paramour with gifts. There is nothing attractive in the argument and there is no room for limiting the plain meaning of the act


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in such a gratuitous manner. It does strike a false note that second I plaintiff has joined in the action against defendant. It may be that an unfaithful husband could not recover unlawful donations to his paramour, but I do not have to decide this issue. First plaintiff has full capacity to sue. The joinder of second plaintiff does not appear to have prejudiced defendant and none has been advanced. The joinder has also not burdened the costs unduly. Should J

BOPAPE AND ANOTHER v MOLOTO 389 A MARITZ J 2000 (1) SA 383 TPD the innocent spouse be able to recover, there is nothing to suggest that the proceeds could not form part of the joint estate and that the guilty spouse could in this way benefit. B Thirdly, Mr Ellis argued that the evidence falls short of proving the cause of action set out in the particulars of claim. Paragraphs 5, 6 and 8 of the particulars of claim read as follows: ‘5. Second plaintiff, without the consent of first plaintiff and contrary to the provisions of s 15(3)(c) of the Matrimonial C Property Act 88 of 1984, donated moneys by cheque from the common assets to the defendant; alternatively made payments by cheque on defendant’s behalf on the dates and to the payee and in the amounts as set out in annexure AA hereto. 6. Alternatively to para 5 D 6.1 Second plaintiff and defendant entered into an oral agreement in Pietersburg during 1996 in terms whereof second plaintiff undertook to donate the moneys set out in para 8 hereunder to defendant. 6.2 At the time of entering into the aforesaid agreement, neither E second plaintiff nor defendant was aware of the illegal nature of the agreement; alternatively second plaintiff was unaware thereof. 6.3 The payments were made by second plaintiff to defendant as set out in para 8 hereunder. 6.4 In the premises defendant has been enriched at both plaintiffs’ F expense in the sum of R221 548,14.’ And then para 8 reads as follows: ‘8. The payments as set out in annexure AA hereto were made by means of cheques, copies of the back and front of each cheque are attached hereto as annexure BB.’ G Having regard to the annexures, it is clear that all the expenditure, in regard to the building of the dwelling, came out of the joint estate. Mr Ellis argues that this is not enough, but that plaintiffs should have proved a corresponding increase in the value of defendant’s estate. I do not agree. The expenditure is readily ascertainable with reference to the cheques drawn on the baking account in the name of Lebogang H Electrical which forms part of the joint estate. There is nothing to suggest that any of the expenditures were unreasonable and other than in the normal course of the building of a dwelling. Furthermore, defendant accepted that which was presented to her. If second plaintiff had not paid for the erf, the building material and services, defendant would have had to I do so from her own funds. The simple fact is that defendant accepted


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the benefits which were clearly prejudicial to the interest of first plaintiff in the joint estate. In the result there will be judgment for plaintiffs against defendant for: (a) payment in the sum of R194 159,96; (b) interest on such amount at the rate of 15,5% per annum from J date hereof to date of payment; (c) costs of suit. Plaintiffs’ Attorneys: Haasbroek & Boezaart Inc. Defendant’s Attorneys: Booysen, Dreyer & Nolte.

Bopape and Another Question 1 What law is applicable in this case?

1. Persons and Family Law 2. Proprietary Rights 3. Section 14 of the Matrimonial Property Act 4. Matrimonial Property Act 88 of 1984

Question 2 What legal principle is decided in this case?

1. The husband made a donation to his lover without his wife’s consent. 2. The couple were married in community of property. 3. Where there is no consent to the donation from the other spouse, the

alienation is unlawful and of necessity void. 4. The alienation can be ratified provided that the juristic act can be

completed later by consent. Question 3 ‘Juristic act’, as used in the headnotes, means

1. A legal act. 2. An action intended to, and capable of having, a legal effect, such as

the creation, termination, or modification of a legal right. 3. An action intended to, but not capable of having, a legal effect. 4. A decision made by a judge.

Question 4 Plaintiff 1 in this case is

1. Mrs Bopape. 2. Mr Bopape. 3. Ms Moloto. 4. Chief Mothiba.


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Question 5 The defendant in this case is

1. Mrs Bopape. 2. Mr Bopape. 3. Ms Moloto. 4. Chief Mothiba.

Question 6 The presiding officer/judge in this case is

1. Ellis. 2. Haasbroek. 3. Motiga. 4. Maritz.

Question 7 Who represented the defendant in court?

1. Ellis. 2. Haasbroek. 3. Motiga. 4. Maritz.

Question 8 The first plaintiff

1. was married to the defendant in 1974. 2. was married to the second plaintiff in 1974. 3. had an affair with the defendant in 1982. 4. had an affair with the second plaintiff in 1982.

Question 9 Which of the following statements about the defendant is NOT true?

1. The defendant moved from Lenyenye to Pietersburg in 1987. 2. The defendant worked for the Lebowa Corporation. 3. The defendant was aware that her lover was married. 4. The defendant bought her own house in Potgietersrus.

Question 10 Eventually the first plaintiff became aware of the affair. Place the following events which alerted her to this in the correct chronological order.

a. First plaintiff appealed to a family friend to step in and help to resolve the situation, and to recoup the money already spent by second plaintiff.

b. The plaintiffs’ youngest son threatened to shoot the defendant.


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c. First plaintiff reacted strongly to the situation. d. The defendant and the second plaintiff aroused the suspicion of the

plaintiffs’ second son while on holiday in Cape Town. e. First plaintiff confronted second plaintiff about the affair but the latter

denied everything. f. First plaintiff and defendant had an acrimonious chance meeting in

the bank. g. Second plaintiff confessed that he still had a relationship with the

defendant and was in fact building her a house.

1. b d e f g c a 2. d e f b g c a 3. e d f b g a c 4. d f e b g c a

Question 11 The plaintiffs claimed an amount of money back from the defendant. What were the grounds for this claim?

1. The expenditure amounted to a donation. 2. The alleged donation was illegal. 3. The first plaintiff had never consented to the payment of this money to

the defendant. 4. All of the above.

Question 12 Mr Motiga is the

1. builder who built the house paid for by the second plaintiff. 2. attorney representing the defendant. 3. attorney representing the plaintiffs. 4. architect who designed the house paid for by the plaintiff.

Question 13 The judge states ‘I will endeavour not to have my judgement clouded thereby’ (page 385 F). The best interpretation of the words in italics is

1. I will try not to let this affect my ability to make the right decision. 2. I hope this will not prevent me from making the right decision. 3. I will try not to let this prevent me from making the right decision. 4. I hope I will be able to keep a clear head in this situation.

Question 14 The judge states ‘I will endeavour not to have my judgement clouded thereby’ (page 385 F). What does the word ‘thereby’ refer to in this context?


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1. The unpleasant ending to the affair which took place at the meeting with Chief Mothiba.

2. The fact that the relationship had ended after the meeting with the chief.

3. The adulterous relationship between the second plaintiff and the defendant.

4. The unpleasant ending to the affair which took place at the meeting between the defendant and Chief Mothiba, which the second plaintiff also attended.

Question 15 The judge has particular feelings about Mr Bopape’s joining his wife in this action. These are best expressed by

1. ‘It does strike a false note that second plaintiff has joined in the action against the defendant.’

2. ‘It may be that an unfaithful husband could not recover unlawful donations to his paramour … .’

3. ‘It is difficult to imagine an unfaithful husband acting out of pure liberality in showering his paramour with gifts.’

4. ‘There is nothing attractive in the argument and there is no room for limiting the plain meaning of the act in such a gratuitous manner.’

Question 16 If Mr Bopape were the only plaintiff, the judge would be likely to decide

1. that the proceeds could form part of the joint estate and the guilty spouse could benefit in this way.

2. that the proceeds could not form part of the joint estate and the guilty spouse could not benefit in this way.

3. that an unfaithful husband could not recover unlawful donations to his paramour.

4. that an unfaithful husband could recover unlawful donations to his paramour.

Question 17 ‘The manner in which the plaintiffs sought to prove the quantum of their claim …’ (page 385 G). The word quantum as it is used here means

1. quantity. 2. amount. 3. quantification. 4. calculation.


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Question 18 ‘The first plaintiff did not take this lying down’ (page 385 C). This means that the first plaintiff

1. took to her bed on hearing about her husband’s affair. 2. reacted very strongly to the fact that her husband had been

unfaithful. 3. did not take to her bed on hearing about her husband’s affair. 4. accused the defendant of lying to her.

Question 19 ‘Both plaintiffs testified and they adduced the evidence of Chief Mothiba and the builder, Lukas Motiga’ (page 386 A). The best replacement for adduced in this context is

1. proved. 2. added. 3. ceded. 4. cited.

Question 20 The judge’s findings were

1. that the defendant accepted benefits which were clearly prejudicial to the first plaintiff.

2. that the defendant had no right to retain what she had received from the second plaintiff and the plaintiffs had every right to recover it.

3. for the plaintiffs against the defendant. 4. for the plaintiffs against the defendant for repayment of a sum of R194

159, 95 with interest and the costs of the suit. Question 21 ‘Once clear that required consent not sought or given, illegality follows and particular juristic act cannot survive’ (page 383 C). What does this sentence NOT imply in this context?

1. If one is married in community of property, both partners must consent to a donation being made to a third party

2. First plaintiff did not know about the gifts to the defendant and thus could not give her consent.

3. If consent to a gift is not given by both spouses, the gift becomes unlawful.

4. If one is married in community of property, both partners need not consent to a donation being made to a third party.


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Question 22 ‘The defendant contended, inter alia, that the prohibition was only effective as between the spouses and the aggrieved spouse had a remedy, in that an adjustment in favour of the aggrieved spouse would be effected upon division of the joint estate and, further, that the fact that, in terms of s 15 (4), consent could be given by way of ratification indicated that the alienation could not be void ab initio for want of consent.’ The implication of the underlined words is that the defendant

1. expected the second plaintiff to divorce his wife. 2. expected the second plaintiff to divorce his wife and pay her back from

the subsequent division of their estate. 3. expected the second plaintiff to marry her. 4. did not expect the second plaintiff to divorce his wife.

Question 23 The judge cites the following cases to support his decision:

1. Avis v Verseput 1943, The matrimonial Property Act 88 of 1984, and Juta’s Statutes of South Africa 1998.

2. Avis v Verseput 1943, Amalgamated Banks of South Africa Bpk v De Goede en ‘n Ander 1997, Amalgamated Bank of South Africa Bpk v Lydenburg Passasiersdienste BK en Andere 1995.

3. Amalgamated Banks of South Africa Bpk v De Goede en ‘n Ander 1997, Amalgamated Bank of South Africa Bpk v Lydenburg Passasiersdienste BK en Andere 1995.

4. Avis v Verseput 1943. Question 24 ‘A spouse shall not without the written consent of the other spouse - (c) donate to another any asset of the joint estate or alienate such an asset without value, excluding an asset of which the donation or alienation does not and probably will not unreasonably prejudice the interest of the other spouse in the joint estate … .’ (page 386 para. G) can best be expressed in plain English as

1. a spouse married in community of property cannot give away or sell anything belonging to their joint estate without receiving written permission from the other spouse.

2. a spouse married in community of property cannot give away or sell anything of value belonging to their joint estate without receiving written permission from the other spouse.

3. a spouse married in community of property can give away or sell anything of value belonging to their joint estate without receiving written permission from the other spouse.

4. a spouse married in community of property can give away or sell anything belonging to their joint estate without receiving written permission from the other spouse.


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Question 25 The Matrimonial Property Act only makes one direct pronouncement on the validity of acts which demand the consent of the marriage partner. Which of the following does it pronounce as invalid?

1. Instances where a third party does not and cannot reasonably know that he is entering into a transaction without the consent of the other spouse.

2. Instances where a third party knows that he is entering into a transaction without the consent of the other spouse.

3. Instances where a third party knows that he is entering into a transaction without the consent of the other spouse and can reasonably be expected to know that this is the position.

4. Instances where a third party does not know that he is entering into a transaction without the consent of the other spouse, but can reasonably be expected to know that this is the position.

ANSWERS

1. 4 2. 3 3. 2 4. 1 5. 3 6. 4 7. 1 8. 2 9. 4 10. 2 11. 4 12. 1 13. 1 14. 3 15. 1 16. 3 17. 2 18. 2 19. 4 20. 4 21. 4 22. 2 23. 2 24. 2 25. 1


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PREVIOUS ASSIGNMENT

TASK 1: READING Below are the questions which were set on the passage.

Tug-of-divorce kids at risk of abduction

[1] ‘The Central Authority for the Republic of South Africa wants him to return to England and for the custody issue to be dealt with in a British court.’ (paragraph 8)

a. Quote the sentence from the passage which gives the reason for this demand.

‘The habitual country will deal with the custody and access battle.

b. Explain in your own words why the custody issue should be dealt with in England.

c. ‘The mother, who is the legal custodian of the child, resided legally with him in England, the ‘habitual’ country.

[2] ‘Yesterday, the smartly dressed boy was entered into the court record

as an intervening applicant, after he had applied, through the family lawyer, to join the court proceedings.’ (paragraph 7).

a. Judging by the context, what do you think an intervening applicant

means here?

Someone for whom the court’s permission has been obtained to enter into a lawsuit which has already started between other parties and to file a complaint stating the basis for a claim in the existing lawsuit. Such intervention will be allowed only if the party wanting to enter into the case has some right or interest in the suit and will not unduly prejudice the ability of the original parties to the lawsuit to conduct their case.

b. Why do you think the family lawyer would want the boy to be part of

court proceedings?

His testimony on the treatment he allegedly received at the hands of his mother would presumably strengthen the applicant’s (the father’s) case in the custody battle.


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[3] Find a synonym in the passage for ‘unlawful removal and/or retention’ (paragraph 11).

Abduction [4] ‘It (unlawful removal and/or retention) has now become any everyday

matter as South Africa becomes part of the international community.’ (paragraph 12)

a. What is the implication of the words in italics?

Now it is relatively easy for South Africans to obtain visas to most countries in the world. This was not the case during apartheid when South Africa was excluded from the international community.

[5] Explain the powers of the High Court in a case such as this one.

The High Court can decide whether the child was unlawfully taken away, but not who should have custody of the child. One is a criminal offence, the other a case for the family courts.


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TASK 2: WRITING You were asked to write a letter addressed to the Course Coordinator. For a business letter you need to use the following format (please note that although the textbook provides an example with the date in the middle of the page, this is not really acceptable). Your address …………………………... …………………………… …………………………… …………………………… Date (e.g. 2 May 2007) Name/ Title of Addressee Address ……………………………… ……………………………… ……………………………… Dear Sir/ Madam (or person’s title and surname, e.g. Dr Spencer) SUBJECT LINE (capitals or underlined) Introductory paragraph ………………………………………………………………………………………. One paragraph or more on the substance of the letter (in this case your reason(s) for requesting an extension) ………………………………………………………………………………………. ………………………………………………………………………………………. ………………………………………………………………………………………. ………………………………………………………………………………………. ………………………………………………………………………………………. ………………………………………………………………………………………. ………………………………………………………………………………………. Concluding paragraph ………………………………………………………………………………………. ………………………………………………………………………………………. Yours faithfully (if you wrote Dear Sir/ Madam), Yours sincerely (if you used a name after Dear) Signature Printed name


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TASK 4: READING AND WRITING

Question 1 Work through the activities on pp. 184 – 186 (pp 172 – 174 in the first edition). Simplify the clauses in the box on pp. 186 – 188 (pp 176 – 178 in the first edition) and submit only this section in your assignment.

13 Alterations, additions and improvements 13.1 The Lessee will not make any structural alterations or additions

to the premises before obtaining the consent of the Lessor, but the Lessor will not be unreasonable in granting permission for alterations or additions that are not structural.

13.2 If the Lessee makes any alterations, additions or improvements, either with or without the Lessor’s permission, the Lessor may request the Lessee in writing to return the Premises to their original condition (the condition they were in when the lease was taken up) at the end of the lease. The Lessor may request this at any time, but not later than (a previously specified number) days after the Lessee has handed over the premises on termination of the lease. The Lessor remains entitled to seek remedies to breaches under 13.1, however.

13.3 All improvements that are made by the lessee (other than those removed in terms of 13.2) become the Lessor’s property and may not be removed at any time. The Lessee will not be entitled to compensation from the Lessor for any improvements made to the premises.

14 Exclusion of lessor from certain liability and indemnity 14.1 The Lessee has no claim for damages against the Lessor and

neither may he/she delay or withhold rent for any of the following reasons, direct or indirect: 14.1.1 a breach of any of the obligations of the lease by the

Lessor; 14.1.2 an act or omission (regardless of negligence, fault or

legality) by the Lessor, his agents, servants, contractors, or of any cleaner, maintenance person, handyman, artisan, labourer, workman, watchman, guard, or commissionaire;

14.1.3 the condition or state of repair of any part of the Building or Property at any time;

14.1.4 any failure of or interruption in the supply of water, electricity, gas, air conditioning, heating, or any other amenity or service to the premises, whatever this is caused by;


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14.1.5 any breakdown or interruption (for whatever reason) in the operation of any machinery, plant, equipment, installation or system that is in or on the premises or which serves it, regardless of cause. This includes but is not limited to lifts, escalators, boilers, burglar alarms and security installations or systems.

Criminal incapacity or non-responsibility

Legal criterion for non-responsibility Criminal responsibility is a legal concept and not a medical or psychiatric concept. In South Africa the criterion for criminal responsibility is contained in section 78 of the Criminal Procedure Act, which provides as follows: “A person who commits an act which constitutes an offence, and who at the time of such commission suffers from a mental illness or mental defect which makes him incapable –

(a) of appreciating the wrongfulness of his act; or (b) of acting in accordance with an appreciation of the wrongfulness

of his act, shall not be criminally responsible for such act.”

Responsibility a prerequisite for criminal liability Criminal responsibility is an indispensable prerequisite for criminal liability in regard to any offence, whether mens rea be required in the form of intent or negligence, or whether no mens rea be required for the crime in question. Before the question can be asked whether the accused had a specific form of fault – where fault is, in fact required – it must be established that we has responsible at the time of the act. The criterion of non-responsibility embodied in section 78 (1), in particular the use of the word “incapable” in the context of the subsection, confirms this view. It would be juridically untenable to assess the responsibility of the wrongdoer by asking whether he had the intent to commit the deed with which he is charged.

Mental illness or defect In order not to be found criminally responsible for his conduct, it must first be established that the accused was suffering from a mental illness or defect at the time of the act. As I have mentioned, “mental illness” and “mental defect” are not defined in the Act. Whether mental illness or defect was present or not is therefore a question of psychiatric evidence, as indicated expressly in section 78. It is impossible and dangerous too, for a court to try and seek a general symptom by which a mental disorder can be recognised. As we have seen, “mental illness” has been defined in the Mental Health Act, but certifiability


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under that Act does not per se lead to the conclusion that an accused is not criminally responsible or that his responsibility will be diminished. “Mental illness” or “mental defect” refers to a pathological disturbance of the mental faculties of the accused and not simply to a temporary mental aberration in a normal individual, which is not attributable to mental abnormality or is due exclusively to external stimuli such as brain, concussion, the use of alcohol, drugs or medicines, or is the result of provocation. It must therefore be shown that the condition of the accused constitutes a recognised pathological deviation. The fact that the mental condition of the accused could have deviated to a certain degree from what is normal is not proof of a state of illness. “intelligent people also sometimes think and do stupid things, more particularly when emotions are abused.” It would likewise be wrong to interpret an inclination to violence in the accused as being in itself an indication of mental illness. It is not necessary, however, to prove that the origin of the accused’s mental illness or defect lies in his mind. It could just as well be organic in origin, eg arteriosclerosis (hardening of the arteries). So too, functional (as distinguished from mere temporary, alcohol-induced) hypoglycaemia (shortage of blood-sugar) can occasion mental illness as can a traumatic head-injury. On the other hand, however, mere concussion, which causes a temporary interruption in the flow of blood to the brain and loss of consciousness, does not constitute mental illness; such a contrition could in fact cause automatism, which means that legally the accused is regarded as not having acted at all. Moreover, it need not be proved that the mental illness was of a permanent nature or that it is incurable. The doctrine of partial or limited mental illness – according to which one part of a person’s mind is normal and the remaining part abnormal – no longer has any support. The illness of the accused must have existed at the time of the conduct. A person who suffers from mental illness and commits an unlawful act during a lucidum intervallum, can in fact be found to have been responsible at the time of the act. This would be so even where a court had previously held that the person was mentally deranged. Although, as we have seen, mere occasional mental aberration as the result of the use of alcohol does not constitute mental illness, the consumption of alcohol, especially if it is chronic, can result in a condition which can be clearly diagnosed as mental illness, eg delirium tremens. The same would apply to the long-term use of drugs or medicines which results in serious brain dysfunction.


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In this extract the writer discusses the interpretation of section 78 of the Criminal Procedure Act, 51 of 1977. The sub-headings are used to tell the reader what a paragraph is about. In the light of our discussion of section 78, are you able to predict the topic of each paragraph by looking at the three sub-sections? Write down what you expect to be discussed under each heading. Were you right in your predictions about the content of each sub-heading? Now read the whole text carefully. Note how the writer discusses different aspects of section 78. He takes key-concepts from the section and then looks at how these have been interpreted by law writers and the courts. Look carefully at the first sentence under the sub-heading ‘Mental illness or defect’. The writer starts his discussion by summarising the content of section 78. He goes on to look at the content of the section in detail. Reread the rest of what has been written under this heading and try to find answers to the following questions:

a) What are the key words or key concepts that the writer thinks need to be defined?

b) How does the writer suggest one determines whether mental illness is present or not?

c) Does the fact that ‘mental illness’ has been defined in the Mental Health Act of 1973, help us in our search for an accurate definition of what it is? Quote from the text to substantiate your answer.

d) What then are the properties or qualities of a ‘mental illness’ or ‘mental defect’?

e) What does the writer want to tell us when he stresses the fact that a deviation from what is normal cannot be considered proof of mental illness?


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CITIZENSHIP (TO BE LIBERIAN MAN)

Article 27 All persons who were proper Liberian citizens long time ago will still be citizens according to this big Law Book. For us to live together as true Liberians, only black man, or person whose mother or father is black can be Liberian citizen. The Legislature will pass law to show how any black foreigner can become Liberian citizen.

Article 28 If any foreigner has a child by a Liberian citizen, that child will be a Liberian citizen too, but when that child becomes man or woman he or she must tell the government whether he will not be a citizen of different country where his mother or father comes from. Only the law can say that a person is a citizen again and any Liberian can change his or her citizenship.

i) Do you think this is a successful attempt at simplifying the original

text of the constitution? Why/why not? ii) Are you perhaps able to detect any errors in the text in which

words are left out? Do these omissions hamper comprehension? iii) Quote an example of sexist language from this extract. (Sexist

language is language which assumes the inferiority of one gender.) iv) Rephrase:

‘Only the law can say that a person is a citizen again and any Liberian can change his or her citizenship.’

Simplify the following clauses so that they are understandable to the parties to the contract.

13 Alterations, additions and improvements 9 See Preliminary Note pars 5.2 and 10. 13.1 The lessee shall not make any alterations or additions to the Premises without the Lessor’s prior consent, but the Lessor shall not withhold its consent unreasonably to an alteration or addition which is not structural. e.g. delirium tremens.(72) The same would apply to the long-term use of drugs or medicines which results in serious brain dysfunction.


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(72) CFR v Bourke 1916 TPD 303, 307; R v Holliday 1924 AD 250. 13.2 If the Lessee does alter, add to, or improve the Premises in any way,

whether in breach of clause 13.1 or not, the Lessee shall, if so required in writing by the Lessor, restore the Premises on the termination of this lease to the condition as it was prior to such alteration, addition or improvement having been made. The Lessor’s requirements in this regard may be communicated to the Lessee at any time, but not later than the (specify) day after the Lessee has delivered up the Premises pursuant to the termination of this lease; and this clause 13.2 shall not be construed as excluding any other or further remedy which the Lessor may have in consequence of a breach by the Lessee of clause 13.1.

13.3 Save for any improvement which is removed from the Premises as

required by the Lessor in terms of clause 13.2, all improvements made to the Premises shall belong to the Lessor and may not be removed from the Premises at any time. The Lessee shall not, whatever the circumstances, have any claim against the Lessor for compensation for any improvements to the Premises.

14 Exclusion of lessor from certain liability and indemnity 14.1 The Lessee shall have no claim for damages against the Lessor and

may not withhold or delay any payment due to the Lessor by reason directly or indirectly of

14.1.1 a breach by the Lessor of any of its obligations under this lease; 14.1.2 any act or omission of the Lessor or any agent or servant of or

contractor to the Lessor, whether or not negligent, wilfully wrongful, or otherwise actionable at law, and including (without limiting the generality of the aforegoing) any act or omission of any cleaner, maintenance person, handyman, artisan, labourer, workman, watchman, guard, or commissionaire;

14.1.3 the condition or state of repair at any time of the Property, the Building, or any part of the Property or the Building.

14.1.4 any failure or suspension of, or any interruption in, the supply of water, electricity, gas, air conditioning, heating, or any other amenity or service to the Premises, the Building, or the Property (including, without generality being limited, any cleaning service), whatever the cause;

14.1.5 any breakdown of, or interruption in the operation of,k any machinery, plant, equipment, installation or system situated in or on or serving the Property, the Building, or the Premises,m and including (but without limiting the generality of the aforegoing) any lift, escalator, geyser, boiler, burglar alarm, or security installation or system, again regardless of cause.


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Documents

English Notes 113 2011