CLS cc © English Notes 1

 

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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CLS cc © English Notes 2

 

 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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CLS cc © English Notes 3

  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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is irregular service under articles or a contract of service as defined.’ Section 1 provides that in this Act. If there were any doubt about this a reference to the (signed) Afrikaans text would dispel it.. Counsel for the applicant. upon being satisfied that such irregular service was occasioned by sufficient cause. and that such service although irregular. that such service is substantially equivalent to regular service. 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. Counsel for the law society submitted that on the plain wording of s 13(2) an applicant seeking relief there under must have served. In contending for a different construction. albeit irregularly. it is ambiguous. This was the construction placed on s 13(2) by the full bench of the Transvaal Provincial Division in Bosman v Prokureursode van Transvaal.CLS cc © English Notes 4   employed pursuant to the letter of appointment. the court. and that the society concerned has had due notice of the application. which section was the predecessor of s 13(2) of the present Act. Mr Shaw was constrained to rely solely on the judgment of Farlam J(Van Niekerk J concurring) in Ex Parte Edwards and Another. In my view. is substantially equivalent to regular service. the court.’ 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. kan die hof. 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. on such conditions as it may deem fit. and again in Ex Parte Singer: Law Society. the ambiguity flowing from the fact that it is not clear what words are governed by the word “not”. within the meaning of s 13(2). is to be regarded as having been served under articles of clerkship duly registered in terms of the Attorneys Act. and that such service was substantially equivalent to regular service under articles. submitted that the court could grant an order to this effect by virtue of the provisions of s 13(2) of the Attorneys Act. In that case the applicants sought an order in terms of s 13(2) to regularise service which was not rendered under articles. In my view. 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. save that it referred to irregular service as ‘an articled clerk’.. The language of the subsection is clear and unequivocal: it is irregular service as a candidate attorney that the court may regularise. may permit such person.’ It follows that irregular service. 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”. as a candidate attorney. ie under articles. 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. Mr Shaw. Transvaal. if satisfied that such irregular service was occasioned by sufficient cause. unless the context otherwise indicates. to apply for admission as an attorney as if he had served regularly under articles or a contract of service. not irregular service generally. That provides: ‘Indien iemand nie gereeld diens as kandidaat-prokureur verrig het nie. which reads: ‘If any person has not served regularly as a candidate attorney. ‘candidate attorney’ ‘means any person bound to serve under articles of clerkship or to perform community service under a contract of service. Notaries and Conveyancers Admission Act 23 of 1934. it manifestly does not. Attorneys. and that the law Critical Law Studies cc © .

purported service as a candidate attorney is not service under articles. 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. 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. not simply because the applicant was not legally qualified to enter into the articles. may. A fortiori. The mere fact that the legislature has been more economical in its use of language does not signify a change of intention. The court held. 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. 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. Ex Parte Singer. 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. 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. In any event.CLS cc © English Notes 5   society concerned has had due notice of the application. although qualified to do so. In other words. 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. the case of Ex Parte Edwards and Another (supra) was wrongly decided and should not be followed. In my respectful opinion. of any assistance in the present matter. Both first and second applicant were legally qualified to enter into a contract of articles. Either way. It was a case of legal disqualification. but because the service was ‘wholly ineffectual. the learned Judge might usefully have added that. subject to the provisions of clause 6 of the First Schedule. But considerations of that kind do not arise here. If my interpretation of s 13(2) is correct. where no articles are entered into. 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.’ As Mr Shaw observed. 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 service was not service under articles. The word ‘not’ obviously governs the entire phrase.’ The change of wording in the present case is. having been rendered pursuant to a “contract” which was void and therefore unproductive of legal consequences’.’ I find myself in respectful but total disagreement with these views. the first and second applicants never did enter into a contract of articles. upon such conditions as it may deem fit. as a principal and as a clerk respectively.’ (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”. it is service as a candidate attorney that is postulated. Critical Law Studies cc © . permit such person. 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’. in my view. The perceived ambiguity does not exist. that s 13(2) could not be invoked to regularise this service.

Durban Respondent’s Attorneys: Von Klemperer. it included:  obiter dicta  the order  the names of the attorneys in the case Critical Law Studies cc © . Davis & Harrison Words and their meanings Plaintiff and Defendant State and Accused Applicant Appellant and Respondent Held To deny an application To deliver judgment To award damages The decision confirmed Court a quo Entitled to Reciprocal obligation Obiter dictum Cur adv vult V LTD JA AJA JP civil case criminal case ex parte case .CLS cc © English Notes 6   Levinsohn J concurred Applicant’s Attorneys: Shepstone & Wylie.application an appeal decided not to allow an application to appeal etc the judge gives his decision the “plaintiff” wins – find in favour of plaintiff uphold the decision of the previous court court of 1st instance can get 2 obligations (2 performances) remarks in passing the court wishes to consider its verdict versus limited judge of appeal acting judge of appeal 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.

 If you are unsure of the answer in the multiple choice. work by process of illumination. Critical Law Studies cc © . make sure you can divide a case into the relevant “sections” and skim-read for answers using key words.the page on which the case begins .the court in which the case was heard (Durban HC)  There is hardly time to read the entire case.CLS cc © English Notes 7   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 1995 (2) BCLR 226 (D) the parties names the year in which it was heard the volume number of the law report the law report in which you can find the case (Butterworths Constitutional Law Reports) .

d) Common nouns: these are names given to certain groups – e. etc. on. b) Preposition of place: across. above. s) They are both parties to the contract. h) The contract should have been signed in the presence of the judge. love.g. o) He said the court will be adjourned until three o’clock. b) Common nouns: these are things that are common to everyone – e. run. after etc. by. they are feelings – e. l) He was walking away from his attacker when he was killed. etc. at. etc. etc. speak. since. happy. c) Abstract nouns: these are things that one cannot use their five senses to determine. 3) Verbs: these are doing words – e. c) The lawyer was engaged in negotiation on their return to the country. anger. persons name (Sam). name of a town. q) You must have your summary of the case ready by Wednesday. sadly. ideas etc.g. d) The prisoner was remanded into custody. etc. e) The union entered into wage negotiations. a) Preposition of time: to. i) The courthouse is around the corner from the police station. tables. g) The buyer’s signature was added to the contract. k) The woman was raped while she was standing at the bus stop. a pile of books. litter of puppies. b) You will get involved in a court case. etc. a) He will take you to court for breach of contract. p) The clerk was late for work on Tuesday.g. before. girls. r) The witness testified that he finished the work in a short period of time. etc. until. Critical Law Studies cc © . Exercise Complete the sentences by filling in the correct preposition where necessary. chairs.g.g. j) A fight took place between the witness and the accused. brown. m) The forensic pathologist looked at the blood sample under a microscope. 2) Adjectives: these are words which describe nouns – e.g. t) He was arrested on a charge of murder.g. n) I found the murder weapon under the bed upon which the victim was lying. 4) Adverbs: these are words which describe the verb – e. 5) Prepositions: this is where something is / indicates the relation of objects. u) She is suspected of helping a convicted felon to escape. etc. on. f) The court gave judgment on the matter.CLS cc © English Notes 8   ENGLISH LANGUAGE Definitions and examples of basis language 1) Nouns: these are names given a) Proper nouns: these are names of something specific – e. behind. cars. softly. along.

married D. a successful male nurse.g. it. his. they. etc. itself. 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. she. social and political changes forced the legislature to radically change its attitude towards the homeless. their a) This course does not deal with creditor’s rights. D found out and D (she) forced M (him) to move out of D and M’s (their) house and instituted divorce proceedings. Critical Law Studies cc © . himself. whereas M (he) had just finished M’s (his) studies and had to pay back a big study loan. that Where Whose CLAUSE TO USE Exercise Choose from the following pronouns to fill the gaps in the sentences He. 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. M now claims half of the value of D’s practice and insists that D (she) repays half of M’s (his) study loan. she. Relative pronouns: WHEN TALKING ABOUT People Things Places Possession Who Which. Substitute pronouns for the underlined nouns. it. the correct tense. It is important that when you change a noun into a pronoun. since they are dealt with in other courses. etc. D (she) had a successful practice which D (she) had built up over three years. its. e) Economic. herself. themselves.CLS cc © English Notes 9   6) Pronouns: these are words which replace the noun – e. her. d) The court made its decision on the basis of the owners inability to produce his /her bill of sale. his. f) The facts of the case are as follows: M. the pronoun must agree with the noun – male/female. singular/plural. a surgeon. after M and D (they) had signed a pre-nuptial contract.

An alternative would then be to sell it (the land) for the normal price. you would like that potential to be reflected in the sale price. the interests of the general public and their right to information have (had) to be considered. 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. 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). Simon and his friend Bongi are discussing current political changes. On the other hand. i) The dentist is entitled to remove her equipment from the practice as long as she does not cause damage. 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. excluding the possible potential for development. 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. but to provide that the seller would be entitled to a share in the profit from such development. h) In this case the court based their (its) decision on a balance of convenience. k) The court examined the meaning of the word ‘required’ and decided that they (it) had to be given a wider interpretation.CLS cc © English Notes 10   Say to which nouns the underlined pronouns refer. Normally this (reflection of the potential sale price) would be done by raising the price of the land by a certain amount. This provision for a share in the development would constitute a valid contract between the seller and purchaser. and these rights would be enforced against the purchaser only. but he (she) could not manage the business without the expertise of his (her) husband. but do not add nouns. Decide which ones are wrong and improve the sentences. should it take place eventually. g) If you sell land that might perhaps have potential to be developed as a holiday resort at a later stage. Critical Law Studies cc © . Take care – not all the sentences are incorrect. m) Correct the following conversation if you think there might be a more suitable pronoun. j) Anybody could gain entry to the house and then they could help themselves to its context. l) The ante-nuptial contract gave the wife control over her mother’s business. but it (the agreement) would create contractual creditor’s rights only. In the following sentences some pronouns have been used incorrectly. 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.

therefore.): this is used to end a sentence or in abbreviations. a) The parties in this case are under (contract) (contractual) obligation to inform each other of a change of address.): these are used to show the omission of a few words.): this is used for a pause in the sentence. since. 3) Comma (. it is best to find the word from which this word was derived in order to formulate a definition. etc. 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. James’s ring). irretrievable – ir=negative. etc). to contrast two ideas (but. 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. 2) Eclipse dots (.. if all agreed with me. but any (anyone) with a bit of money wants to cling to it desperately without consideration for the have-nots. an 8) Conjunctions / connectors: these words join sentences or ideas (and.. etc. 10) Apostrophe (‘): this can be used for omission (the leaving out of letters in words – e. retrieve=get. You’re ignoring the fact that more optimism about the economy might persuade anyone to invest their money.g. 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. etc.CLS cc © English Notes 11   S: B: Yes. Stacy’s car. yet.g.): this is used in lists. b) The minister announced (regulate) (regulatory) measures until such time as legislation has been (act) (enacted) by parliament. as. 4) (. Root words  Where a word is difficult to understand. is not = isn’t) or for possession (to show ownership – e. something important. Critical Law Studies cc © .g. – e. 5) (:): this is used to start lists.) or to give a reasoning to a statement (because. in spite of. something might change. when. however. 6) Quotation marks (“ “): these are used for direct speech.) Punctuation 1) Full stop (. 7) Articles: these are found before the noun a) Definite article: the b) Indefinite articles: a. the lawyers’ books. 7) Brackets ( ): these are used to add a thought or group ideas.

If the parents leave the land to only one child. Re-arrange the following words into groups of words that are more or less similar in meaning or that belong to the same category. intangible 2 An unlawful act that cause harm or damage 4 to someone Physical 7 5 11 12 3 10 D Relationship E F Transportable A right to use part of somebody else’s property G A person who is owed money H Comprehensively Critical Law Studies cc © . a husband and wife left in a mutual will a piece of land to their children in undivided shares. e) If you (want) (wanted) to raise a small loan. The question is whether the children’s rights are real or creditor’s rights. Person 1 Individual 1 Acts 3 Rights and duties Regulates 2 Relationship 1 Determines 2 3 Relation 1 Dictates 2 Subject 1 Contract 3 Provisions 3 Party 1 Match the two columns – words and their meanings 1 2 3 4 5 6 7 8 An asset Immaterial goods A creditor A delict The correlation between 2 thing A bond A corporeal thing an immovable A B C Not physical. they can be enforced against any person. they can only be enforced against a specific debtor. d) The contract can be (individual) (individualised) to (provision) (provide) for the (person) (personal) needs of each customer. you (can) (could) use your movable property to provide security. the neighbour (acquire) (acquires) the right to a certain limited use of your property. but if they (are/were) real rights. If they (are/were) creditor’s rights. he will have to provide his birthday watch as security.CLS cc © English Notes 12   c) Under the general’s (dictate) (dictatory) rule the citizens of the country were (subject) (subjected) to countless house-to-house searches. g) In Ex Parte Geldenhuys. Simon was in a difficult position: if he (want) (wants) to raise a small loan. there (will not be) (won’t) such a problem. 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.

Correct them. b) That is the murderer. Employ – employer – employee Lease – lessee – lessor Pay – payer – payee Credit – creditor Debit – debtor Grant – grantor – grantee Legate – legatee Complete the table Noun Constitution Limit Tolerance Practice Difference Adjective constitutional Limitable Tolerable Practical Different Negative Adjective Unconstitutional Unlimitable Intolerable Impractical Indifferent In a few of the sentences the relative pronouns have been used incorrectly. c) I am going to consult with a lawyer that (who) is a specialist in divorce settlements. Critical Law Studies cc © . who killed the woman.CLS cc © English Notes 13   thing 9 A lease I J Possessions A scheme to borrow money against a house or a land Something that is fixed A temporary lending of something against regular payments 1 6 10 To do something extensively 11 A movable thing K 12 A servitude L 8 9 Change the following adjectives to the negative inCorporeal imMaterial imMovable ilLegal Try to form similar nouns with the following words. Use your dictionaries. a) The child that (who) appeared in court is my niece.

give and is). – e.g. They doubt The court made a decision to.. Modal verbs: degrees of certainty and uncertainty  Modal verbs differ from other verbs as they do not usually stand alone in a sentence..... you will also find words that indicate uncertainty: may/might. the lawyer advises An important source for lawyers is the Lawyer’s Journal.the court put emphasis on’ .. suppose..  Somewhere in the sentence. adverb or adjective with only one verb.  They change the meaning of the main verb slightly: Critical Law Studies cc © ... make. e. on the condition that.should have been – ‘the court emphasied’ Exercise • • • • • They have doubts about the reliability of. the judge’s opinion is The lawyer gives advice on. In the index reference is made to the most important judgments of each quarter. The lawyers journal is an important source for lawyers. This is also when vague verbs are used (put.g.. the court decided The judge is of the opinion that.. will/would. shall/should. The judge put into doubt the wisdom of the establishment of children’s courts... who abused his children. The judge doubted The rules of the interpretation of statutes put emphasis on the establishment of clear and unambiguous meaning. can/could. have.. unless. .CLS cc © English Notes 14   d) e) f) g) This is the hotel where the man was shot. I studied every case which (that) I could get my hands on. 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... where reference is made to the important judgments of each quarter...statutes emphasised. understand (know) – misunderstand. Have you met the lawyer whom is going to defend you? That is the man whose advocate I am. ‘.... • • Conditionals  A sentence which expresses a condition usually starts with words that indicate the speculative nature of the message: if.. Nominalization  Where a writer uses nouns where they could use an active verb....

understandable English sentence. certain should win the case. uncertain may win the case. b) The attorney will question the suspect. obligation or duty. complicated sentences into shorter. etc. such as statues. simple ones.  You need to simplify complex language to allow it to be easily accessible and understandable to the general public. uncertain shall win the case. Strong obligation o I might speak to you about these crimes. Critical Law Studies cc © .  Ways of correcting this include: o Breaking up of long.CLS cc © English Notes 15   o I must speak to you about these crimes. Moral obligation  The use of shall often presents problems and is used in formal written laws. This word is used to indicate command. The issue must be decided by the court Say whether the following are certain or uncertain a) b) c) d) e) The The The The The advocate advocate advocate advocate advocate might win the case.  To do this it is best not to use jargon and colloquial slang. (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. The truth ought to be told by the witness e) The court must decide the issue. certain Plain English  This is just taking a sentence which is formulated from difficult English language and words and reformulating it into an easy. Shall has more or less the same meaning as must but is much stronger. (active) o You will be sent to jail. The suspect will be questioned by the attorney c) You need to claim compensation for loss of income. Slight possibility o I ought to speak to you about these crimes.  It is possible to make passive sentences with moral verbs: o They will send you to jail. Compensation ought to be claimed for loss of income d) The witness ought to tell the truth. uncertain will win the case.

Tenses 1) Past: something that already happened. c) Present continuous tense: this is used to show that something happened and will continue to happen for some time. The event happens in the present but not at a specific point. 5) Don’t repeat yourself. – e. o Redundancy: . Critical Law Studies cc © . OR She had known who stole the will before the police told her.g. 4) Never use Latin words where an English one will do. 2) Never use a big word where a small one will suffice. a) Simple past: this is used to indicate that something happened at a definite past time and is no longer happening.g. The legatee died before the legacy could pass to him. Passives and actives  English sentences containing a subject. the document is sufficient. 6) Refer to your opponents arguments. newspapers. 3) Future: something that could happen / something which is expected. OR He has started drawing up his will. textbooks.  The passive is not very common in informal speech or writing but is a regular feature in formal impersonal texts. The spouses have massed their estates. a) Simple present tense: this is something that happens regularly. After his daughter had decided to marry a convicted felon.the use of too many words to convey something which could have been done in fewer words. It is used to indicate that two actions happened in the past but that one of the actions finished earlier than the other. b) Past perfect: this is also known as the double past tense. verb and object are either active or passive sentences.g. legal documents and statutes. the testator revoked his will.  Principles of legal writing (take the following advice into consideration): 1) Never use ten words where one will do.g. A legatee always inherits a specific asset or amount of money. 3) Use simple sentences. – e. – e. – e. – e. Anybody who has seen Jurassic Park remembers the scene where the Tyrannosaurus Rex grabs the lawyer. 2) Present: something that is currently happening.  Passives are often used if the following place: notices. b) Present perfect tense: this is used to describe an action which continues up to the present or which happened in the recent past.CLS cc © English Notes 16   o Substitution of difficult words with words that are easier to understand.g. 7) If a lay person can read the document from beginning to end without falling asleep. sometimes from time to time.

g. The prisoner will be pardoned by the president next week Transform the following passive sentences into the active. The new act in the high court is being challenged by the lawyer f) The president will pardon the prisoner next week. Interviews between patients and doctors are protected by professional privilege e) The lawyer is challenging the new act in the High Court. the decision is correct. As a matter of law. such as joy or anger.g. The act was struck down by the constitutional court c) Parliament voted on the proposed bill amending the Abortion Act. This refers to the way in which a person’s voice is modulated to express and emotion. poverty. suspicious. apartheid. A writers tone refers to the corresponding style in writing. Critical Law Studies cc © . – e. Divorce endsn the reciprocal duty of support Manipulating language  Tone: this is closely linked with attitude. etc. angry. impatient. Parole will no longer be granted to serial killers j) The reciprocal duty of support is ended by divorce. love.  Emotion: is exploited in language in an attempt to convince the reader to make a decision based on emotion rather than reason. lively. g) It is submitted that. it is submitted that the decision is correct h) That fact was attested to by all the witnesses for the state. disappointed. All the state’s witnesses attested to the fact i) It was decided that serial killers will no longer be granted parole. – e.CLS cc © English Notes 17   Exercise Transform the following sentences into the passive. a) The man paid maintenance to his ex-wife. etc. despondent. as a matter of law. The ex-wife was paid maintenance by the man b) The Constitutional Court has decided to strike down the act. The proposed bill amending the abortion act was voted on by parliament d) Professional privilege protects interviews between patients and doctors.

CLS cc © English Notes 18    Purpose: is the reason why the writer wrote something. inform. a) b) c) d) e) f) g) They‘re not going to find the will. A writer may aim to amuse. he could not have committed the murder. b) He told his client that it would be difficult to represent him on account (of) his lies. He‘s not always thinking you know. criticise or even provoke an action. 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. 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. Didn‘t father put the keys with his will? I‘ve no idea. e) Because (as) the hospital is very far from the murder scene. We‘ve looked everywhere. We can‘t drive the car. Go and look in John‘s room for the keys. c) The client countered that he was lying for (because) no one would believe the truth. he could of put them anywhere. Critical Law Studies cc © . Exercise Place the apostrophe in the correct place in each of these sentences. were unable to find the keys.

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.CLS cc © English Notes 19   f) For the account of heavy traffic (due to heavy traffic). b) Laws based on blood alcohol content are unfair to those who can take their drink. 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. many thieves feel justified in what they do. he could not have reached the murder scene in time. 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. i) Peter has to study hard so that (in order) to be a lawyer. [5] Theft of various kinds is rife in South Africa. [6] Write an argumentative essay of between 1½ to 2 pages (about 450 words) on the following topic: Critical Law Studies cc © . h) Peter caught the early bus to the university so as to be there on time. m) Peter leaned over (so) as to examine his friend’s notes. g) The lawyer was very angry with his client for lying. j) Peter has to pay attention in class in order to understand the work. n) Peter borrowed his friend’s notes (just) in case of his own notes were not adequate. Choose one of the following thesis statements to defend or oppose (or both) or formulate your own thesis statement. followed by the case against theft. Given the South African sociopolitical context. [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. a) Drunk pedestrians are a greater hazard than drunk drivers. 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. d) Write your own thesis statement on the topic of driving under the influence of alcohol. c) Sober people who let a drunk person drive are more to blame for the consequences than the driver him/herself. [4] Write an argumentative essay of about 1½ 2 pages on the following topic of driving under the influence of alcohol.

give both points of view on the contested rights of victims on the other. and why?  Strike action is tertiary education: should academic life be above strike action? Once you have decided on a focus. Your essay must not be more than two pages in length. In the course of your essay you should also present the arguments against your point of view. You must adapt a point of view in support of your argument. Consider crimes of varying seriousness and be specific in discussing sentencing.” Are we becoming a materialistic society? In a well reasoned essay. If you think you are adequately informed on this debate. Her are some possibilities:  Justifications for strike action  How effective it is: does it achieve more than it sacrifices. You must decide which aspect of this topic to focus on. express your point of view in a thesis statement. [11] Critical Law Studies cc © . [10] Write an essay in which you argue for and against polygamy (custom of having more than one wife at a time). i) In your opinion. a) Strike action is justified under certain circumstances. [8] Write a well reasoned argument of about 250 words on the topic of strike action. [7] Write an argumentative essay on one of the following topics. discuss the validity of this statement. iii) Some people feel that the South African Constitution and statutes do more to protect the rights of criminals than the rights of victims. b) Capitalism is unfair. or vice versa?  Limitations to strike action: what should be disallowed. Write an essay in which you argue the case both for and against the banning of smoking in public places. This can serve as a heading for your essay.CLS cc © English Notes 20   “Shopping has become the new religion. 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. It is important that you present both sides of the argument. 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. [9] Write an argumentative essay of about 250-300 words on one of the following topics.

This is not however an argument which can stand up to close scrutiny. Proponents of capital punishment point to South African recent history as justifying their claim that it does act as a deterrent. society.. 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 …. There are numerous factors besides the abolition of the death penalty which may (and probably do) affect the crime rate. In the USA certain ……… have retained the death penalty on the statue books.. 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. …. Today the law is recognized as a neutral …………… that does not make value judgments or allows moral indignation over-rule justice. Medieval society accepted the death sentence because at that stage our development the law. ethics and morality were closely interwoven. as an example). Explain what you think the relationships should be between customary law and the Constitution.CLS cc © English Notes 21   [12] [13] [14] Should the father’s of illegitimate children have any legal rights regarding these children? Argue both sides of the questions. They are drawing conclusions based on an invalid premise. The incidence of serious crime has increased significantly since we abolished the death penalty. breakdown of family life. Finally the international community has placed “the right to life” at the top Critical Law Studies cc © . Write an essay in which you argue for or against capital punishment. The concept of “an eye for an eye” is also closely linked to the clause of retributive justice.argument that the threat of a possible death sentence will deter the criminal has not been borne out in practice. increase in drug abuse. Give reasons for your argument. 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. and an increase in poverty are factors which all contribute to the increase in crime. Many studies have shown that the presence or not of legislation of capital punishment has little effect on the prevalence of serious crime. The right to life is an internationally recognized concept and should not be altered through national legislation. (Texas. Understaffing of police stations.

Attention and energies should be diverted from this fruitless debate and given to more deserving causes such as poverty relief. first offender. a policeman of eight years’ standing. CASE WORK QUESTIONS MAKHUDU v DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF APPEAL Marais JA. At the request of the investigating officer. It had not been mechanically recorded and the magistrate h stated that his entire judgment on sentence was delivered ex tempore. who shot complainant. d The appellant. and leave to appeal was refused. c Assault with intent to do grievous bodily harm – Sentence – Accused a policeman. against whom he had laid a charge of crimen injuria. With leave of the Supreme Court of Appeal. and that Critical Law Studies cc © . Since the Constitution is the supreme law of the land. The magistrate’s judgment on sentence was not available. When the matter came before the Court a quo what was placed before it was a partly reconstructed record. a sergeant in the South African Police Services. and was not removed because it was considered too dangerous to do so. While the complainant was waiting for his return. the e appellant entered the office and shot him twice.Sentence of five years’ imprisonment imposed on appeal. South Africa has followed the lead and has included this right in the Constitution (Act 108 of 1996). one above the left knee and once in the right hip. in charge office . had laid a charge of crimen injuuria against the complainant. the complainant reported at a police station but found that the investigating officer was not available. 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. He was then asked to wait for him in one of the offices.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. In summary. An appeal against sentence to a Provincial Division failed. Despite a couple of minor errors. would not otherwise have acted as he did. Cameron JA and Mthiyane AJA 2001 February 16. capital punishment does not reduce crime rate and flies in the face of current legal opinion. this essay was given full marks.plaintiff was removed to hospital. one of the appellant’s colleagues took possession of the firearm and the com. One of the bullets penetrated the right hip and remains lodge in the left pelvis. March 16 a b Trial . it is unlikely that parliament will be able to counter this right easily. After the shooting. both domestic and international. 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.CLS cc © English Notes 22   of the list of basic human rights.

applied the more restrictive test traditionally applied when considering appeals against sentence and consequently misdirected themselves. 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 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. further. 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. By adopting the approach which it did. was wrong. the magistrate declared that he had considered all sentencing options and stood by the seven year sentence he imposed on the appellant. There are magistrates’ courts where neither recording facilities nor shorthand writers are available and magistrates have perforce to record the evidence and their rulings. The possibility that the judgment on sentence suffered from such defects could not simply be arbitrarily excluded. That notwithstanding. Held. yet it approached the matter as though there was an adequate i record before it. the Provincial Division. 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. 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. further. By so doing.CLS cc © English Notes 23   he could not remember what he had said in that respect. 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. 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. Held. verdicts and sentences in longhand. 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. They cannot be expected to do the same while Critical Law Studies cc © . instead of dealing with the question of the sentence on the footing that they were at large to consider the question afresh. 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. Held. a reviewing court was at large to decide the case on the recorded evidence. viz that simply because a magistrate has given an oral judgment which has not been recorded in any manner. 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. Notwithstanding this. that the approach adopted in S v Adams 2001 (1) SACR 59. 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.

Pietersburg. In all the circumstances. 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. He was then asked to wait for him in one of the offices. further. S E Motloung for the appellant. one detective Mkgakane. He should not have allowed his emotions to get the better of him. 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. After the shooting. 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. and leave to appeal was refused. that the appellant was a first offender who had i lost his employment as a result of this incident. the magistrate is unable to h furnish his or her reasons. One of the bullets penetrated the right hip and remains lodged in the left pelvis. He was sentenced to seven years’ imprisonment. He was no longer a very young man (he was 33 years of age) a and he should have known better. As against that. Held. If a magistrate furnishes them. the appellant entered the office and shot him twice. While the complainant was waiting for his return. At the request of the investigating officer. there were strongly aggravating features: the appellant was a police officer at the time. once above the left knee and once in the right hip. Critical Law Studies cc © . e Makgakane was not available. as regards sentence. a sentence of five years’ imprisonment would be appropriate. that is an entirely different matter and the principles applied by the Court in Adams’ case come into play. had laid a charge of crimen injuria against the complainant. one of the appellant’s colleagues took possession of the firearm and the complainant was removed to hospital. the complainant reported at the Sheshego police station but found that Mr. 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. He shot twice at an unarmed member of the public in the police station in full view of his colleagues. His behavior was utterly reprehensible and called for a severe response. [2] The background to the conviction may be summarized briefly. Leave to appeal to this Court was granted on d application to it. b Appeal against the dismissal by the Transvaal Provincial Division of an appeal against a sentence imposed in a regional court. The appellant. stationed at Sheshego.CLS cc © English Notes 24   orally delivering judgment. using a weapon issued to him to enable him to protect the j 496 public. a sergeant in the South African Police Services. An appeal against sentence to the Transvaal Provincial Division failed. and was not removed f because it was considered too dangerous to do so. that where. G D Baloyi for the State. Held. as in the present case. 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.

h Hy se daardie dag wil hy my sy ware kleure wys. a policeman of eight years’ standing. Hy gaan niks met my praat nie. applied the more restrictive test Critical Law Studies cc © . b found proved). Sotho ‘masipha’ laat arresteer. Ek gaan kyk waarheen gaan hy.’ i The appellant then went on to describe how he lost control of himself and how he shot the complainant. The complainant denied that he insulted the appellant. Gese ek is dom. Se sy prokureurs gaan my laat kak. First. presumably. 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. Toe ek deur kyk sien ek die klaer. the magistrate declared that he had considered all the “vonnis opsies”² and stood by the seven year sentence he imposed on the appellant. Iemand maak. drew out his service pistol and j 497 [4] [5] [6] [7] shot him twice. the learned Judges. and that he could not d remember what he said in that respect. Plus minus 08:00 alleen in my kantoor. It had not been mechanically recorded and the magistrate stated that his entire judgment on sentence was delivered ex tempore. Ek se hoekom elke keer as jy my ontmoet vertel jy my so iets. skielik die deur oop sonder om te klop. would not otherwise have acted as he did. When the complainant did not return the greeting. Dit het vinnig gebeur. instead of dealing with the question of the sentence on the footing that they were at large to consider the question afresh. He se voertsek hy praat niks met my nie. In as much as the appellant does not question his conviction on appeal. He denied that he went to the appellant’s office or that he knew where it was situated. The appellant’s version in this regard was recorded as follows by the magistrate: g …Oggend 29 Julie 1997 aan diesn. the appellant swore at him. Makgakane’s return the appellant entered the office and greeted him. My kantoor toegemaak. The magistrate’s judgement on sentence was not available. Notwithstanding this.CLS cc © English Notes 25   [3] There was a dispute as to the events preceding the shooting. Op daardie oomblik was ek baie kwaad gewees. Hy beledig my toe hy begin inkom. By so doing. Ek kom van die plase af. no more need be said about this aspect of the matter. Se ek het vir . 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. so the argument goes. He alleged that the appellant said that he would kill a him. Dit my uit. yet it approached e the matter as though there was an adequate record before it. c 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. He justified that while waiting for Mr. This then brings me to the two issues raised in this appeal. 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. Hy trek deur hardop toe.

I am constrained to say that I consider the adoption and application of that approach in that case to be Critical Law Studies cc © . namely.CLS cc © English Notes 26   traditionally applied when considering appeals against sentence and consequently misdirected themselves. 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. It is clear that if the appellant is to be afforded the unfettered right of appeal to which he was then entitled. By adopting the approach which it did. 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. g I proceed to deal with the first issue. 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. The possibility that the judgment on sentence did suffer from such defects cannot simply be arbitrarily excluded. this Court must of necessity be at large to consider the question of sentence afresh in the light of all the d circumstances. Tempting as it is to seek to also draw support for that approach from the decision in S v Adams 2001 (1) SACR 59. In any event it is not that court’s sentence which is being appealed against but the magistrate’s sentence. e See S v Masuku and others 1985 (3) SA 908 (A) at 912 G-I. ‘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. 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. Its failure to do so necessitates this Court having to undertake that task. 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 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. 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. 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 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. 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 [8] [9] [10] [11] appeal. 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 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. Critical Law Studies cc © . 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. if required by a reviewing judge to do so. It was not competent for him in law to give his reasons for the first time c ex post facto. 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. 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. a reviewing court is at large to decide the case on the recorded evidence. 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. He has lost his employment as a result of this incident. namely f that simply because a magistrate has given an oral judgment which has not been recorded in any manner. They cannot be expected to do the same while orally delivering judgment. The judicial officer there was a judge. 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. the magistrate is unable to furnish his j 499 [12] [13] [14] [15] or her reasons. 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. verdicts and sentences in longhand. b The decision in S v Masuku and Others (supra) on which the court in Adam’s case relied is not in point. as in the present case. The reasoning there adopted. is based upon a misunderstanding of the principles laid down in the decided cases cited in the judgment and a misapplication of them. s 304(2)(a) of the Criminal Procedure Act 51 of d 1977). If a magistrate furnishes them. if required. 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. Where. because its implications for the reviewing process are serious. A magistrate who did give reasons at the time but whose reasons were not recorded. that is an entirely different matter and the principles a applied by the court in Adams’s case come into play. g Those principles do not apply where the magistrate did in fact give an oral judgment at the trial and is in a position. to furnish again ex post facto the reasons for judgment or sentence. e In considering the question of sentence afresh I bear in mind the following mitigating factors. it is necessary to say so.CLS cc © English Notes 27   clearly wrong and. (Rule 67(5) of the Magistrates’ Courts Act 32 of 1944. The judge had given no reasons at all either orally or otherwise for his decision at the time and was entirely functus officio. The appellant is a first offender. not a magistrate. He will have to live with the knowledge that his folly will cost his wife and three children dearly.

there are strongly aggravating features. It will suffice. a sentence of five years’ imprisonment would be appropriate. I believe. He was no longer a very young man (he was 33 years of age) and he should have known g better. considering all the circumstances and balancing the seriousness of the offence against the appellant’s personal h circumstances. i I make the following order: 1. and taking into account the interests of the community. It follows that the sentence of seven years’ imprisonment imposed by the magistrate cannot stand and must be set aside. The appeal succeeds 2. the bullet had been lodged in the complainant’s pelvis for about: 1) 2) 3) 4) 8 months 5 years 5 years and 8 months 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 Critical Law Studies cc © . 500 [17] [18] [19] 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) 2) 3) 4) The The The The appellant complainant investigating officer magistrate Question 2 When the appellant was charged in a regional court. He shot twice an unarmed member of the public in the police station in full view of his colleagues.CLS cc © English Notes 28   [16] As against that. Marais JA and Cameron JA concurred. His behaviour was utterly reprehensible and calls for a severe response. using a weapon issued to him to enable him to protect the public. In my view. the seriousness of the matter. to bring home to the appellant and to anyone who may be tempted to follow his example. The sentence of seven years’ imprisonment is set aside and replaced with a sentence of five years’ imprisonment. He should not have allowed his emotions to get the better of him. The appellant was a police officer at the time.

CLS cc © English Notes 29   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) 2) 3) 4) the original case in the regional court the appeal against sentence in the Provincial Division both 1 and 2 the case in the Supreme court of Appeal Question 5 The complainant in the original / first case 1) 2) 3) 4) was a sergeant in SAPS laid a charge of crimen injuuria was shot above the knee and in the right hip was charged with attempted murder Question 6 The issue before the court was brought by the 1) 2) 3) 4) judge complainant director of public prosecutions appellant Question 7 The police sergeant (page 495 at d – e) is the _____________ in this case 1) 2) 3) 4) accused complainant first offender appellant Question 8 The phrase “ex tempore” (page 495 at g – h ) means 1) 2) 3) 4) after careful deliberation at a different time based on rough notes spontaneously Question 9 The best synonym in this context for contemporaneous (page 496 f – g) is Critical Law Studies cc © .

CLS cc © English Notes 30   1) 2) 3) 4) mechanical continuous concurrent 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) 2) 3) 4) the recovery of the offence the intention with which the offence was committed the consequences of the offence 1 and 2 Question 13 The word ‘Held’ used to introduce the paragraphs on page 496 can best be understood to mean 1) 2) 3) 4) ‘the court a quo argued’ ‘I declare’ ‘it was the judge’s view’ ‘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 Critical Law Studies cc © .

respectively. the wrong test v the right test would be. In this context. 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) 2) 3) 4) unavoidably the obligation perhaps by chance Critical Law Studies cc © . 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).CLS cc © English Notes 31   1) 2) 3) 4) appropriate or not inappropriate or not too lenient or too severe 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’.

7. 2. 3. 10. 9. 5. 8.CLS cc © English Notes 32   Question 19 Match the surnames that appear on p497 descriptions in column B A (1) Makhudu (a) (2) Motloung (b) (3) Baloyi (c) (4) Mthiyane (d) (5) Makgakane (e) (f) (g) 1) 2) 3) 4) 1d 1e 1f 1e 2c 2c 2b 2b 3b 3b 3c 3c 4g 4a 4a 4d 5e 5d 5f 5d (column A) with their correct B Supreme court judge prosecuting attorney defence attorney investigating officer appellant complainant regional court magistrate Question 20 The first paragraph of italicized headnotes on page 495 states the legal principles that 1) 2) 3) 4) were applied in the original case in the regional court were applied in the case in the provincial reviewing court were not properly applied in the case in the provincial reviewing court 1 and 2 Question 21 The second paragraph of italicized footnotes on page 495 summarizes 1) 2) 3) 4) the original sentence in the original court the sentence as upheld by the provincial reviewing court the sentence as amended by the supreme court of appeal 1 and 2 ANSWERS 1. 4. 3 3 2 1 3 4 2 2 3 3 Critical Law Studies cc © . 6.

19.CLS cc © English Notes 33   11. 12. 17. 1 2 3 4d 5 6 7 8 9e 10 11 12 13 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. some of which justified referral – Preferable that all counts be referred for sentence to High Court. The Court held that although the Act made no provision for such a situation. having decided that the sentence on count would be one which he was not competent to impose. 52 and 53 of Criminal Law Amendment Act 105 of 1997 – Referral of matter from regional court to High Court – Multiple counts. referred the matter to the High Court in terms of the provisions of ss 51 and 52 of the Criminal Law Amendment Act 105 of 1997. 16. The Court then considered the sentence on the count of attempted murder in respect of which the regional magistrate had declined to impose a sentence. 20. 21. 15. the magistrate’s decision to refer the accused to the High Court for sentencing on all the counts was the correct one: it was more in accordance with justice that all sentences imposed on an accused should be pronounced by the same court. 18. 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 counts. Conradie J: The accused was charged in the Wynberg magistrate’s court with two counts of murder and one of attempted murder. SM Galloway for the accused. 4 3 2 3 1 2 2 2 3 4 3 a S v ZONDO CAPE PROVINCIAL DIVISION CONRADIE J 2000 September 22 Sentence – Penalty clause – Minimum sentences – Imposition of in terms of b ss 51. C Bischoff for the State. He was found guilty on Critical Law Studies cc © g . 14. The court considered the circumstances of the offences and held that sentences of life imprisonment ought to be imposed on each of counts 1 and 3. 13. including those in respect of which regional court empowered to pass sentence. The regional magistrate.

h Mr. However. Mamani fled but could not escape his killer. He has joined a church group in prison. abdomen and both arms. The manner in which the test is framed has. 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. He died from multiple gunshot wounds involving the neck. The regional magistrate correctly considered that the murder of Nyaba Seleka was planned or premeditated. the deceased in count 1. He proclaimed his g regret at what had occurred. The Critical Law Studies cc © . by his conduct. Part 1 of Schedule 2 to the Act read with s 51 provides that. She was with Sipho Mamani. It is. in many h cases. 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 accused first shot his girlfriend Veronica Mapupu. The first murder and the attempted murder were committed on the same day. (S v Ibrahim 1999 (1) SACR 106 (C). anyone who commits a planned or premeditated murder must be sentenced to d imprisonment for life. After she had helped to get the deceased into a taxi. an execution of the c deceased. The submissions have no merit. None of this amounts to substantial and compelling circumstances. The accused had armed himself. Nyaba Seleka. I should say in passing.) 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. He seems. Galloway appeared on behalf of the accused. he wants to put his unhappy childhood behind him. died from multiple gunshot wounds. In the present case there is none. She offered the accused peanuts j 76 which Mamani had given her. The minimum sentence for a killing of this kind is prescribed by the Act. 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. given rise to difficulties. thorax. There is reason to believe that the accused really intended to shoot Mamani and not the girlfriend. The accused then pursued or tracked him and shortly thereafter shot him dead. f (S v Willemse 1999 (1) SACR 450 (C). it does not apply to this crime. He died shortly thereafter from a gunshot wound in the chest.) In my view the murder of Sipho Mamani can also be categorized as e ‘panned or premeditated’. subject to two exceptions with which I shall deal presently. The regional magistrate. There is an element of vengeance in this killing as well. It was. to have come to the place where Mamani and Mapupu were with no purpose other than to shoot Mamani. since it is not retrospective. Nothing of what he has said lessens the accused’s moral blameworthiness. He says that he wants to lead a better life. Without a word he shot her as she was trying a to hide behind Mamani. having decided that the sentence on count 2 would be one which he was not competent to impose. Seleka was murdered before the Act came into operation and. in fact. The accused testified before this Court. b He was first shot and wounded outside the home of Nokwanda Mamani. She was wounded in the lower arm.CLS cc © English Notes 34   all three. The deceased in count 3. 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’). the accused came up to the taxi and at close range fired several shots at the deceased which killed him.

Moreover. The accused is on each of counts 1 and 3 sentenced to imprisonment for Critical Law Studies cc © a b c d e f g h . In cases where a district magistrate after conviction. a sentence which I would have imposed even if there had been no s 51. it seems to be generally assumed that the regional magistrate is empowered. The same conclusion was reached in S v Masinga en ‘n Ander 1984 (3) SA 446 (T). He is a man of 32. having 77 i j regard to the nature of the killing and the disposition to violence shown by the record of his previous convictions. The accused was not under the age of 16 at the time of the commission of the offence. On top of that there are three convictions for housebreaking on his record. preferred the approach of the Court in S v Ngubane 1991 (1) SACR 163 (N). 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 at 488D). The other exception to s 51 does not apply. It remains to consider what should be done with regard to the sentence on the count of attempted murder. in respect of less serious charges on which an accused has been convicted. It motivated its preference in several ways. to impose such sentence as the magistrate might have imposed had the accused not been committed. On count 1 I consider that I should. that not all the accused in a case. decides that a sentence merited by an accused exceeds his jurisdiction and in terms of s 116 of the Criminal Procedure Act 51 of 1977 commits him for sentence to a regional court having jurisdiction. those who did not merit sentences exceeding the jurisdiction of the magistrate’s court had to be committed for sentence as well. 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. In my view this solution was the correct one. regardless of their probable sentences. I accordingly conclude that there is nothing to prevent me from sentencing the accused on the second charge. Although the Act makes no provision for such a situation. he is a recidivist. He has four previous convictions for assault with intent to do grievous bodily harm. The regional magistrate declined to impose a sentence on this count. The accused must on count 3 be sentenced to imprisonment for life. 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. in the exercise of my discretion. It is more in accordance with justice that all sentences on an accused should be pronounced by the same court. he decided to refer the accused to this court for sentencing on all the counts. The sentence will in terms of s 32(2) of the Correctional Services Act 8 of 1959 run concurrently with the life imprisonment. S v Cele and Others 1994 (1) SACR 616 (N). had to be sentenced in the regional court.CLS cc © English Notes 35   accused advanced no reasons for his conduct. also impose a sentence of life imprisonment on the accused.

some of which justified referral D) Preferable that all counts be referred for sentence to High Court.CLS cc © English Notes 36   life. 4) 1. On count 2 he is sentenced to five years’ imprisonment. 2 and 3. 2) ‘penalty clause’. 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’. 3) ‘minimum sentences’. 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) 2) 3) 4) A B C D Question 3 Which of the four quotations above describes the legal process that has led to this hearing? 1) 2) 3) 4) A B C D Question 4 Which of the four quotations above refers to the circumstances facing the regional magistrate? 1) 2) 3) 4) A B C D Critical Law Studies cc © . 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. The letters A to D below identify four quotations from the headnotes. Use these letters in answering questions 2.

because murder is a much more serious offence than attempted murder. on less serious counts like attempted murder instead of more Critical Law Studies cc © . which he felt gave him no option. based on his interpretation of ss 51 and 52 of the Criminal Law Amendment Act 105 of 1997. both 1 and 2 together. B and C but not D Only A. 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) 2) 3) 4) on counts on which he is competent to impose a sentence. 1. on counts on which he is not competent to impose a sentence. decision on his own lack of competence as a regional magistrate to impose a sentence on count 2 decision to refer the accused to the High Court for sentencing on all three counts. because he wanted all sentences in this case to be imposed by the same court. B and D but not A or C. Question 7 It is clear from the summary below the headnotes on page 76 that the judge agrees with the district magistrate’s 1) 2) 3) 4) sentences of life imprisonment on counts 1 and 3.CLS cc © English Notes 37   Question 5 The regional magistrate’s decision to refer the accused to the High Court was 1) 2) 3) 4) later criticized by the judge. A. Question 6 Here are some of the actions relating to the trial of the accused in this case: A) B) C) D) decide his innocence or guilt on a count of murder decide his innocence or guilt on a count of attempted murder sentence him on a count of murder 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) 2) 3) 4) A and B but not C or D.

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) 2) 3) 4) are not satisfactory in terms of justice being done. Question 12 In the judge’s opinion. sister and brother. by accident – he was actually aiming at Sipho Mamani. are based on the accused confessing to the murder. The judge is unable to make sense of the magistrate’s case report. The judge thinks the magistrate’s decision was wrong. Question 11 In this context. Question 13 The relationship between Nokwanda Mamani and Sipho Mamani is 1) 2) 3) 4) mother and son. have no merit in the opinion of the judge.CLS cc © English Notes 38   serious ones like murder. because that was the only part of her that was not hidden behind Sipho Mamani. wife and husband. The judge rejects Mr Galloway’s argument. specifically to the High Court. Question 9 The reference to ‘the same court’ at the end of the summary refers 1) 2) 3) 4) to this particular regional magistrate’s court. the accused shot Veronica Mapupu in the arm 1) 2) 3) 4) on purpose. to any court with the appropriate competence. Question 14 This case deals with these three events: Critical Law Studies cc © . because as his girlfriend she should not have been with Sipho Mamani. not mentioned in this case report. ‘The submissions have no merit’ means 1) 2) 3) 4) Mr Galloway thinks the magistrate’s decision was wrong. have no merit in terms of s 119A of the Criminal Procedure Act 51 of 1977.

B. A. his wish to lead a better life and put his unhappy childhood behind him. C. 3) are rejected by the judge as substantial and compelling circumstances justifying the imposition of a lighter sentence. 3) B. 2) are offered by his defence as substantial and compelling circumstances justifying the imposition of a lighter sentence. The correct links between the cases and the decision is 1) 2) 3) 4) Aa and Bb Ab and Bc Ac and Ba Ac and Bb Question 16 The accused’s regret at what he had done.CLS cc © English Notes 39   A) B) C) the passing of the Criminal Law Amendment Act 105 of 1997 the murder of Sipho Mamani the murder of Nyaba Seleka The order in which they occurred is 1) A. f on page 77. e. d. b) Murders committed before the Criminal Law Amendment Act 105 of 1997 was passed cannot be tried in terms of this Act. 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. C. 2) B. the following two cases are cited: A) B) S v Ibrahim 1999 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. c) Someone accused of premeditated murder can be tried in a regional court. 4) 2 and 3 Critical Law Studies cc © . 4) A. Question 15 In the two paragraphs at c. C. A. C. B.

the phrase ‘disposition to violence’ refers to 1) 2) 3) 4) the manner in which the accused killed Nyaba Seleka. In terms of s116 of the Criminal Procedure Act 51 of 1977’. is a repeat offender. ‘in respect of less serious charges’.CLS cc © English Notes 40   Question 17 ‘in the present case there is none’ (at h on page 77) means there is no 1) 2) 3) 4) moral blameworthiness in what the accused did. this crime was committed beforehand. The four occasions earlier in his life when the accused was found guilty of assault with intent to do grievous bodily harm. 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) 2) 3) 4) ‘by the district magistrate’. the ruthlessness of both the count 1 and the count 2 murders. 1 and 2 Question 18 The judge refers to the accused as a ‘recidivist’ (between h and i on page 77) because he 1) 2) 3) 4) receives stolen goods. 1. reason given by the accused for what he did. difficulty in deciding that no exception applies in this case. a life sentence for premeditated murder became mandatory only after the passing of the Act. 1 and 3 Question 20 In its context at a on page 78. has been sentenced to life imprisonment. he has the power to overrule the sentence passed by the regional magistrate’s court. ‘for sentence to a regional court having jurisdiction’. Question 19 The judge says ‘in the exercise of my discretion’ (at j on page 77) because 1) 2) 3) 4) the murder in count 1 was not as cold-blooded as the executionstyle murder in count 3. Question 22 Critical Law Studies cc © . had an unhappy childhood.

CLS cc © English Notes 41

 

The following four cases are cited in d to g on page 78: A) B) C) D) S v Selebogo S v Masinga en h Ander S v Cele and Others 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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CLS cc © English Notes 42

 

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

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

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CLS cc © English Notes 43

 

S v PULWANE AND OTHERS
TRANSVAAL PROVINCIAL DIVISION WEBSTER J and BOSIELO J 2002 July 16 Case No M257/2002

d

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
Critical Law Studies cc ©

Undoubtedly the youth was the hope for the future. Held. that while it was true that where a crime was serious and prevalent. of course. Sentences set aside and the matter referred back to the court a quo to obtain pre sentencing reports and reimpose sentence accordingly. Held. 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. The magistrate had failed to request the assistance of relevant experts. It was after all a salutary principle of sentencing that sentence had to be individualized. further. 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. It was also trite that c direct imprisonment was not always the appropriate sentence. the reintegration of the youthful offender back into her or his family and. 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 it was clear from the record that the magistrate had adopted an incorrect approach in sentencing the accused. that in casu the magistrate had not considered other sentencing options. d Held. social workers or probation officers. The accused were aged 20. When a youth or juvenile strayed from the path of rectitude to criminal conduct. 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’. as its priority. 22 and 18 respectively and first offenders. further. (Paragraph [10] at 635b-c. It was a patent and serious irregularity for a sentencing officer to ignore the personal circumstances of an accused when considering sentence. That would inevitably lead to a sentence which was flawed. (Paragraph [9] at 634h-635a). (Paragraph [7] at 634 a-c). The result was a sentence that had the effect of destroying rather than h rehabilitation and improving accused for their future reintegration into society. The option of sentence of correctional supervision was viable and had merited serious consideration. further. Held. 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. particularly where it threatened the well-being of society. In any event. (Paragraph [11] at 635d-e). 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.CLS cc © English Notes 44   pre-sentencing reports and reimpose sentence accordingly. such as correctional officers. it remained a trite principle of sentencing that each case had to be decided on its own merits. 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. the community. courts should impose appropriate sentences. Annotations: Critical Law Studies cc © j . to assist him to decide on an appropriate sentence.

[2] The learned Neukircher AJ prepared a query regarding the appropriateness of the sentence. The three accused were convicted of housebreaking with intent to steal and theft on 3 April 2002.CLS cc © English Notes 45   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. Praktiseer. The Magistrate has since responded a b c Critical Law Studies cc © . Bosielo J : [1] This is a review matter from the magistrate’s court. Each accused was sentenced to an effective term of imprisonment for three years.

h 5. [3] The gist of the Magistrate’s response is that he duly considered all the relevant facts which had a bearing on the case. His parents are unemployed. He is still attending school where he is doing standard 9. In conclusion.2 Ad accused 2 Accused 2 is 22 years old. He has no money to pay a fine.1 Ad accused 1 Accused 1 is 20 years old. He was injured in a motor collision. He is not married and has no dependants. He attended school only up to standard 8 (eight).CLS cc © English Notes 46   to the query. He has a single parent. Accused 1 asked for forgiveness and lenient sentence as his parent is unemployed. he requests that the sentence he imposed be confirmed as appropriate. I now have to deal with the matter as Neukricher AJ is not available. It is the unanimous view of the Director of Public Prosecutions that the sentence imposed on the accused is excessive and inappropriate. He has no money to pay a fine. Critical Law Studies cc © . He is neither employed nor attending school. which he failed. He is unmarried and has no dependants. g 5. The personal circumstances of the accused are as follows: 5. He has no money for a fine. He is unmarried and has no i dependants. He failed grade 12. 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. He pleaded for a lenient sentence. e [4] The office of the Director of Public Prosecutions has submitted a wellresearched and motivated opinion on the appropriateness of the sentence.3 Ad accused 3 Accused 3 is 18 years old. 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.

633 [7] It is true that where a crime is serious and prevalent. However it remains a trite principle of sentencing that each case has to be decided on its own merits. 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’).CLS cc © English Notes 47   [6] As against the personal circumstances of the accused. particularly where a it threatens the well being of society that courts should impose appropriate sentences. It is a patent and serious irregularity for a sentencing officer to ignore the personal circumstances of an accused when considering sentence. the accused were convicted of housebreaking with intent to steal and theft of groceries worth R1 500. It is also trite that direct imprisonment is not always the appropriate sentence. All three j accused are first offenders. The accused pleaded guilty to the charge. A sentencing officer must never allow the seriousness of the offence and b Critical Law Studies cc © .

When a youth or juvenile strays from the path of rectitude to criminal conduct. for a mistaken form of punishment might easily f d e result in a person with a distorted personality being eventually returned to g society. c [8] As the Director of Public Prosecutions correctly pointed out. a salutary principle of sentencing that sentence must be individualized. who deserved a sentence based more on rehabilitation than deterrence. 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 and interests of the particular youth. It is. the learned Magistrate failed to acknowledge the important fact that the accused herein are relatively young. This will inevitably lead to a sentence which is flawed. after all.CLS cc © English Notes 48   the interests of the community to receive undue weight at the expense of the personal circumstances of the accused. Undoubtedly the youth is our hope for the future. with clean criminal records. 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 j i Critical Law Studies cc © .” h [9] It is clear from the record that the Magistrate adopted an incorrect approach in sentencing the accused. As the learned Cachalia J correctly remarked in S v Nkosi 2002(1) SACR 135 (W) at 143b: ‘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.

as its priority. In all likelihood they will come out of prison more hardened and benefit of the fear of prison. of course. 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. By the time they are released from prison. will have to live with the ‘new and hardened criminals’ in their midst. Experience teachers us that one way or another their personal lives exposed to some unsavoury criminal elements in prison. The option of a sentence of correctional supervision is viable and merited serious consideration. that the Magistrate did not consider other sentencing options. In any event. the community. The magistrate failed to request the assistance of relevant experts like correctional b officers. the interests of the Critical Law Studies cc © . they shall have formed new personalities. the reintegration of the youthful offender back into his or her family and. Unfortunately the same society which sent them to jail through the instrumentality of the courts. the Magistrate could not have done that properly as he had very little information regarding the accuseds’ personal circumstances and their family and social backgrounds.CLS cc © English Notes 49   634 promote the rehabilitation of that particular youth and have. social workers or probation officers. 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. to assist him to decide on an appropriate sentence. f e [12] Having considered the nature of the offence. a [10] It is clear from the record. [11] In conclusion. including the Magistrate’s reasons.

I would propose the following order: 1.CLS cc © English Notes 50   community and balancing that against the interests. into her or his family and community B Accused pleaded guilty to ….. with regard to sentence in the case of juvenile offenders during trial both 1 and 2 The letters A to D below identify four quotations from the head notes. The case is referred back to the magistrate. 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. 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. 2. Use these letters in answering questions 2 and 3. A Every judicial officer …. who must obtain the necessary pre-sentence reports either from the correctional official or probation officer to assist him to decide on a proper and appropriate sentence for the accused. In the premises. h g Webster J concurred. 4. needs and personal circumstances of the accused. The sentence of three years’ imprisonment imposed on each accused is set aside.. 22 and 18 respectively Critical Law Studies cc © . The conviction of the accused is confirmed. I am of the view that the sentence imposed on the accused is disturbingly inappropriate. 2. groceries worth R1 500 C Magistrate failing to request …. 3. an appropriate sentence D Accused were aged 20.

3. Question 6 In this context the word ‘rectitude’ (page 631 f) could best be replaced with 1. Honesty Righteousness Respectability lawlessness. A B C D Question 3 Which of the above quotations led to the present hearing being held? 1. 4. 4. 3. 2. 3. 2. 4. it summarises pages 633 (from paragraph b) to 635 2 and 3. 2. 2. it adds information it summarises a to j on page 632. A B C D Question 4 The issue before the court has been brought by the 1. 4.CLS cc © English Notes 51   Question 2 Which of the quotations above could best be described as the appropriate legal principle? 1. The following considerations when sentencing are mentioned in this case: Critical Law Studies cc © . Question 7 In this context (page 632 at b – d) the word ‘trite’ can best be replaced with 1. 3. 4. ‘trivial’ ‘well known’ ‘dull’ ‘clichéd’. 2. 3. 2. Judge State Defendant magistrate Question 5 The relationship between paragraphs e to j on page 631 and the rest of the case report is that 1. 3. 4.

2. 3. A B C F Question 10 Which consideration does the magistrate cite in defence of his original sentence. a and b a. 4. 3. 4. 2.CLS cc © English Notes 52   a b c d e f the needs and interests of the particular youth the rehabilitation of the particular youth the reintegration of the youthful offender back into his or her family and community the seriousness of the offence the prevalence of the offence 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. 4. 3. 2. 4. 2. although he didn’t make this point during the original trial? 1. even though in the event of in the present circumstance in the case of Question 12 The phrase ‘court a quo’ (page 632 at I – j) means 1. 2. 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. in the court in a higher court in the court of first instance 1 and 2 Critical Law Studies cc © . 3. C D E F Question 11 The phrase in casu (page 632 at f – g) means 1. 4. b and c d and e d. 3.

Question 18 The accused pleaded guilty to and were convicted of 1. the age of the offenders the fact that they were first time offenders the personal circumstances of the offenders all of the above Question 15 Mentioned in the case are the following names: Bosielo. 2. 4. They had all left school They all had single parents They were all unmarried with no dependents All of the above are true.CLS cc © English Notes 53   Question 13 The word ‘held’. the Public Prosecutor’s view that the sentence was excessive the Public Prosecutor’s view that the sentence was inappropriate the magistrate’s view that he had imposed an appropriate sentence all of the above. the initials of the two judges Johannes and Andrew John. respectively all of the above. Bosielo is referring to 1. 2. 2. The letters J and AJ stand for 1. 3. respectively Judge and Appeal Judge. 4. used on page 632 from paragraphs b to I. 4. 2. 1. 2. ‘it was the judge’s view’ ‘the magistrate argued’ ‘it was the view of the Director of Public Prosecutions’ ‘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. 3. 4. 4. 3. 3. Question 16 In the words “In order to resolve this vexed legal question’ (page 633 at e – f). can best be understand to mean 1. 2. 3. Which of the following is true. Question 17 The three young offenders had certain things in common. 4. AJ. 3. Housebreaking housebreaking and the intent to steal theft of groceries worth R1 500 both 2 and 3 Critical Law Studies cc © . J and Neukircher.

sentences must ensure that the accused is rehabilitated 3. regardless of personal circumstances 4.CLS cc © English Notes 54   Question 19 Three of the following principles of sentencing mentioned in this case emphasise the interests of the offender. ‘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. ‘courts should impose appropriate sentences’ 3. a salutary principle of sentencing that sentence must be individualised’ (page 634 at h – j) means 1. marital status age criminal record education level. 2. Which one is the exception? 1. 3. Question 23 Which of the following is most likely to be seen as a mitigating factor when the sentence is reviewed? 1. 3. the rule of law should be applied. each offender’s personal circumstance should be taken into account when sentencing 2. 4. Question 24 Three of the following are wrong interpretations of the judge’s decisions in Critical Law Studies cc © . 3. Question 22 ‘It is. after all. paragraph g – h on page 362 contained in the quotation from S v Nkosi on page 634 paragraph 10 on page 635 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. 2. 2. 4. the punishment should always fit the crime. ‘promote rehabilitation of that particular youth’ 2. 2 and 3 were all first time offenders 2 was injured in a car accident 3 is unmarried and has no dependents. 4. Accused Accused Accused Accused 1 failed standard 8 1. ‘a salutary principle of sentencing (is) that sentence had to be individualised’ 4.

8. 18. 21. 2. 6. Which one is the exception? 1. 24. 17. 11. A new magistrate must study the offenders’ background and come up with a more appropriate sentence 4. 4 1 3 1 4 2 2 2 3 4 4 3 1 4 3 4 3 4 2 4 2 1 2 4 3 Critical Law Studies cc © . 2. 14. 19. Botha JA. The three accused must spend three years in prison for their crimes 3. Bosielo J.CLS cc © English Notes 55   this case. 22. 3. 4. The three accused are not guilty 2. 5. The original magistrate must come up with a more appropriate sentence. 3. 12. 10. 7. 4. ANSWERS 1. 16. 20. Cachalia J. Erasmus J. 25. Question 25 Webster J agrees with Question 25 Webster J agrees with 1. 15. 13. 9. 23.

CLS cc © English Notes 56   Critical Law Studies cc © .

further. 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.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. 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. further. the applicant was sentenced to imprisonment. represents client. Held. after the magistrate had refused a postponement. which discretion should be exercised judicially and not capriciously nor upon a wrong principle. 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. that the presiding officer had a discretion as to whether an application for a postponement should be granted. The applicant had pleaded guilty in a magistrate’s court on the basis of advice given to him by his attorney. as a result of previous convictions for similar offences. would represent the client.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. No evidence was led in mitigation and. with whom he had consulted and who was unavailable. 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. 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. that. in casu the applicant had not been deprived of legal representation in the sense of having somebody to stand up and speak on Critical Law Studies cc © c d e f . the attorney having been appointed by the Legal Aid Board to stand in for his usual attorney. WESTERN CAPE. Representation entailed that the legal adviser would act in the client’s best interests. AND OTHERS CAPE PROVINCIAL DIVISION SELIKOWITZ J and CARSTENS AJ 2002 March 22 Case No 7849/01 a b Trial . (Paragraph r) Held. 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 h) Held.CLS cc © English Notes 57   BEYERS v DIRECTOR OF PUBLIC PROSECUTIONS. He had met that attorney that same day and had a hurried ten minute consultation. Trial . 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. In a review.

They amount in fact to a claim that he was rushed to trial when his usual attorney. as is guaranteed to him in terms of s35(3) of the Constitution of the Republic of South Africa Act 108 of 1996. He was also disqualified from obtaining a driver’s licence for a period of five years. Earlier this year his attorney of record withdrew and he is not present in Court today. No evidence was led in mitigation and by reason of the fact that the applicant has a number of previous convictions for similar offences. The second respondent initially indicated that he wished to oppose the application. further. he had been deprived of effective legal representation. accordingly. (Paragraph z) Held. No appearance for the respondents. 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. He was sentenced on the same day to three years’ imprisonment. reasons for judgment. but thereafter filed a notice of withdrawal. did not file any answering affidavit or any further papers. and who had been sent to stand in for his usual attorney by the Legal Aid Board. he was sent to prison for three years. He therefore had a hurried consultation of ten minutes with an attorney whom he had only just that day been introduce to. It had been abundantly clear that there was a need for evidence to be led in mitigation of sentence. It had not been his fault that his regular legal adviser had taken ill and had been unable to attend. a contravention of s 122(1)(a) of the Road Traffic Act 29 of 1989. 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 Review of proceedings in a magistrate’s court. (Paragraph y) Held. First respondent in this matter is the Director of Public Prosecutions. The application was refused. as a result of which he pleaded guilty.CLS cc © English Notes 58   g his behalf. that the applicant had not been remiss in obtaining representation. with whom he had consulted. A C Webster for the applicant. Third respondent filed a notice of opposition. The applicant raises a number of grounds in support of his contention that he did not have a fair trial. Critical Law Studies cc © . That attorney gave him certain advice. that the applicant had not had a fair trial. In September of that year. The facts appear from the h i j k l m n 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. 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. an application was made for leave to appeal. was unable to be at court and in circumstances where a request for a postponement was declined by the second respondent. Western Cape. who does not oppose this application but abides the decision of the Court. The conviction and sentence set aside. However.

as he in fact did. nor upon any wrong principle. in order to secure a postponement. 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. if such legal adviser is not in terms of any law prohibited from appearing in the proceedings in question. The importance of the benefit of legal representation on an Critical Law Studies cc © . 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. The uncontradicted facts indicate that the attorney who was due to appear and who had been properly instructed.aquarter hours in which to make other arrangements and in which to prepare for the further conduct of his trial. and more important. The uncontroverted evidence of the applicant is all that we have. Representation entails that the legal adviser will act in your best interest. 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. 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 idea of being represented by a legal adviser cannot simply mean having somebody stand next to you to speak on your behalf. He was entitled to insist. ‘It is. but only where there is substantial reason to exercise it in the manner chosen. In the first place he only gave him one and. will say everything that needs to be said in your favour. According to the applicant’s uncontested evidence. which can hardly be described as a reasonable opportunity to do what was necessary. 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. as to whether an application for postponement should be granted. Secondly. that that discretion should be exercised judiciously and not capriciously. 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. was indisposed.CLS cc © English Notes 59   o p q r s t u Not only does our Constitution guarantee a fair trial but it. that his attorney be present before the case proceeded. 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. applicant’s mother went to the legal aid office and third respondent then was nominated to appear for the applicant. He drew attention to the fact that the trials Judge or presiding officer. When she did not arrive at court. Section 73(2) of the Criminal Procedure Act 51 of 1977 provides: ‘A accused shall be entitled to be represented by his legal adviser at criminal proceedings. there was no obligation on the appellant to engage the services of another attorney. 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. in my view. in particular. 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. has a discretion.

The gravity of the charge and the possible sentences and the complexity of the case are amongst the factors o be taken into consideration. As far as the remissiveness of the accused is concerned I this particular case. relating to the fat that he was having psychotherapy and psychiatric treatment. One of that evidence was put before the Court. w x y z aa bb Critical Law Studies cc © . So too is the remissiveness or otherwise of the accused in failing to arrange for his legal representation. He was. however. there are no reasons given for the refusal of the postponement. I want to make reference to S v Harris 1997 (1) SACR 618 (C). In these circumstances I am satisfied that the applicant has established that he did not have a fair trial. As I have said. 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. would interfere with the smooth administration of justice. A factor of lesser weight. where possible. If the trial court fails to exercise a discretion judicially. That discretion is to be exercised judicially and upon all the facts and circumstances pertaining to the matter. is something virtually presumed where the effect of the postponement is to deprive him of legal representation. It was not his fault that his regular legal adviser had taken ill and was unable to attend. the applicant was not remiss at all. Carstens AJ concurred. then a Court of appeal will interfere with its decision.CLS cc © English Notes 60   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. as I shall show. which is to say capriciously or in accordance with wrong principles or not on material grounds.’ In this matter the accused was not deprived of legal representation in the sense of having somebody stand up and speak on his behalf. In this regard. if granted. prejudice to an accused flowing from the refusal of a postponement. There is no need to consider any of the other grounds upon which he relies and I would set aside the conviction and sentence. is that a postponement. deprived of effective legal representation. 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. are not to be underestimated. The importance of legal representation and. Applicant’s Attorneys: Bisset Boehmke McBain. a representative of the accused’s choice. If one has regard to the factors mentioned in the Harris case.’ Finally. where at 622 c-f the Court said the following: ‘The decision whether or not to grant a postponement is in the discretion of the trial court.

3. 2. 4. A B C D Question 4 Which of the quotations above can be described as the legal process that is under consideration in this hearing? 1. 4. failing to consult. legal representation. 2. irregularity. 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. 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. 4 and 5. legal representation. A B C D Critical Law Studies cc © . a trial. 3. 4. 4. a just sentence. 2. 2. 3. postponement. Use these quotations to answer questions 3. a fair trial. The letters A to D below identify four quotations from the headnotes. 3.CLS cc © English Notes 61   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.

2. 2. ‘his unreadiness to proceed is not due to delaying tactics’. include details of previous convictions. add to the seriousness of the offence. as he in fact did. A B C D Question 6 If paragraph f were read aloud. 3. 3. 2 and 3 are correct. 2. The evidence which [the review judge believes] should have been led is 1. the Constitution of the Republic of South Africa Act 108 of 1996. the word which should be given the greatest emphasis would be 1. 4. Question 9 ‘Evidence in mitigation’ (paragraph c) is evidence that will 1. influence the judge to impose a harsher sentence. 4. ‘he was entitled to insist. that his attorney be present before the case proceeded’. deprived. 3. 3. applicant. Question 8 The summary notes that ‘No evidence was led in mitigation’ (paragraph c). 4. ‘relating to the fact that he was having psychotherapy and psychiatric treatment’. the Road Traffic Act 29 of 1989. the Criminal Procedure Act 51 of 1977. legal. ‘there was evidence that was crying out to be led on behalf of the applicant relating to his drinking problem’. Question 10 The judge held (paragraphs e and f) that the trial court should grant a postponement Critical Law Studies cc © .CLS cc © English Notes 62   Question 5 Which of the quotations above provides the grounds for the present hearing? 1. influence the judge to impose a more lenient sentence. 2. effective. 4. 2. Question 7 The accused pleaded guilty at the first trial to a contravention of 1. 3. 4. 1.

4. 3. Which is the exception? 1. if the applicant was using delaying tactics. if the applicant was ill-prepared through no fault of his own. Question 15 The applicant in this case contends that he did not have a fair trial. a postponement of the trial. 2. 2. 4. Question 13 Three of the following words used in paragraphs p.CLS cc © English Notes 63   1. . s and x are synonyms. evidence was not led in mitigation of sentence. be willing to grant a postponement. 2. Critical Law Studies cc © . just in case. in order to make sure that. delay a decision on a postponement. leave to appeal his sentence. 3. the original conviction and sentence to be reviewed. even though. a new attorney as his original attorney took ill. … … … … should should should should be reluctant to allow a postponement. uncontradicted. capriciously and not judiciously Question 11 In paragraph f. He bases his contention on the fact that 1. his request for a postponement was declined. if an attorney had been appointed by the Legal Aid Board. 2. not grant a postponement willingly. Question 12 The applicant is asking for 1. 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 . underestimated. . in the case under review. 3. 4. the phrase ‘in casu’ means 1. uncontested. the italicized words could be expressed in plain English as 1. 2. the replacement attorney did not act in his best interests. uncontroverted. 4. 3. 3. ‘ (paragraph t). 3. 2. 4.

Question 19 The first respondent in this case is 1. 3. J Selikowitz. 4. opposed the application. is the applicant’s attorney of record. the magistrate in the original trial. 3. Beyers refused to replace his original attorney. whereas Yelani was not. The second respondent 1. 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. 2. 4. 2.CLS cc © English Notes 64   4. whereas Yelani accepted a new attorney. Question 17 The differences between Beyers v Director of Public Prosecutions and S v Yelani are that 1. is none of the above. whereas Beyers accepted a new attorney. A. Beyers was invited to find a replacement for his original attorney. B and C. 2. 4. Yelani was invited to find a replacement for his original attorney. A and B. Yelani refused to replace his original attorney. is the magistrate who passed the original sentence. the Director of Public Prosecutions. 3. Question 18 Three respondents in this matter are mentioned. 3. B and C. in disagreement with the decision of the Court in the original trial. 4. Critical Law Studies cc © . 2 and 3 are correct. A. whereas Beyers was not. 2. 1.

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 accused will serve the sentence only at a later date. the judge is critical of the attorney appointed for the accused. Question 23 The review was presided over by 1. This implies that 1. declined a request for a postponement. Question 24 The last part of the final sentence ‘… I would set aside the conviction and sentence’ means that 1. was indisposed and did not appear in court. 3. 4. 2. 3. the records were not properly kept. the attorney appointed for the accused was negligent in that he did not fully acquaint himself with his client’s record. J Selikowitz. A C Webster. 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. 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. 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’. 4. 3. was nominated by the legal aid office to appear for the applicant. 3. all the above are correct. 2. was appointed by the applicant’s mother to appear for the applicant. Critical Law Studies cc © .CLS cc © English Notes 65   Question 20 The third respondent 1. J Selikowitz and A J Carstens. 4. 2. the applicant himself was remiss because he had previous convictions for drunken driving. Chief Justice Mahomed. 1 and 2 are correct. 2. 4.

4. between two and three years. 5. 3.CLS cc © English Notes 66   2. the accused is freed with immediate effect and this conviction is erased. 3. 13. 4 1 2 2 4 3 2 2 2 1 3 3 4 3 4 4 2 2 2 4 1 2 3 4 1 Critical Law Studies cc © . 24. 23. 4. 17. 15. less than one year. 16. 25. 2. 12. the accused received a suspended sentence. 3. 7. 6. 9. 19. 21. ANSWERS 1. 18. 10. 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. 22. 20. three years. 8. 4. the accused is freed with immediate effect. 11. 14. 2. between one and two years.

The accused had been convicted on their pleas of guilty to a charge of stealing diesel from accused 1's father. It was seriously unthinkable that accused 1's father could have done anything that would assist accused 1 in his case. 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. an 18-year-old. (Paragraphs [8] and [9] at 622i-23e. During the proceedings the father of accused 1 had intimated that he wished to have him punished. 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. It was clear from his utterances that he had been interested only in a conviction. As was to be expected. In simple terms accused 1 had not received a fair trial. 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.CLS cc © English Notes 67   S v SEABI AND ANOTHER: 620 S v SEABI AND ANOTHER 2003 910 SACR 620 S v SEABI AND ANOTHER TRANSVAAL PROVINCIAL DIVISION VAN DER MERWE J and BOSIELO J 2002 June 28 Case No B181/2002 d 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. Held. Neither of the accused were asked i whether they were pleading guilty freely and voluntarily. particularly unrepresented accused. it is both desirable and in keeping with constitutional ideals of ensuring fair trial for every accused. It was 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. 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 in a serious and irreconcilable conflict of interests. he had sacrificed the interests of accused 1 to advance his own selfish personal interests. was assisted by his father. voluntarily and without any undue influence. a b Critical Law Studies cc © . During the trial proceedings accused 1. that they be asked if their pleas are free. followed by direct imprisonment. The dictates of fairness and justice demanded that the entire proceedings be set aside as not being in accordance with justice.

c it was both desirable and in keeping with the constitutional ideals of ensuring a fair trial for every accused.) Held. to assist the accused? Didn't the magistrate perceive a conflict of interests. 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. Accused 2: Three thousand rand or one-and-a-half years' imprisonment. 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.2] Regarding the appropriateness of the sentence. not unrealistic. voluntarily and without any undue influence. S v SEABI AND ANOTHER 2003 910 SACR 620 622 e f g h i j a 3. 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). further. not too severe or disturbingly inappropriate? 4. particularly in view of his personal circumstances and financial resources. 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. The two accused were charged with stealing 25 litres of diesel. Automatic review. vague as they may appear. The magistrate then sentenced the accused as follows: 'Accused 1: Two thousand rand or one year imprisonment. which had culminated in a failure of justice. Both accused were convicted on their pleas of guilty.1] In his response. the magistrate maintains Critical Law Studies cc © .CLS cc © English Notes 68   Held. The conviction was based on the questioning and answering of questions by the accused. Why did the magistrate permit the accused's father. manifestly harsh and inappropriate? [3. further. Annotations: Reported case S v Naidoo 1989 (2) SA 114 (A) — dictum at 121E applied. that in casu the proceedings in the magistrate's court had been vitiated by gross irregularities. Why he proceeded to sentence accused 1. s 112(1): see Juta's Statutes of South Africa 2001 vol 1 at 1-295-1-296.' [3. illiterate and unsophisticated accused. Is the sentence imposed on accused 1. With regard to accused 2 is the sentence imposed. This was particularly important where the court had to deal with uneducated. particularly unrepresented accused. who was 18 years old at the time without a pre-sentence report. in the light of the facts of this case. (Paragraph [10] at 623g-h. who is the complainant. that they be asked if their pleas were free. The facts appear from the reasons for judgment.' [2] After I had read the transcript. 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'. particularly as there are suggestions. 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. voluntary and without any undue influence. Statutes The Criminal Procedure Act 51 of 1977. which could lead to a failure of justice? 2.

as theft is a serious offence which is prevalent not only in the district where the magistrate serves. However. 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. the Director of Public Prosecutions points out that the pleas of guilty tendered by both accused are irregular. He is therefore the complainant in this matter. As was to be expected. Consequently. the court appointed accused 1's father to be his assistant during the trial. the Director of Public Prosecutions conceded that the proceedings during which the accused were convicted are not in accordance with justice. It is hardly surprising that accused 1's father is recorded to have made the following utterances against accused 1. The two accused pleaded guilty to theft of 25 litres of diesel valued at R125. According to the record both accused elected to conduct their own defence. He is always stealing from me. He is not attending school as he is usually away to Johannesburg with criminals. the person he purported to assist: 'I have had enough of accused's conduct. but in the entire country. Accused 1 was 18 years old. [9] However. Inter alia. After some questioning in terms of s 112(1)(b) of Act 51 of 1977 the magistrate convicted accused 1 of theft and accused 2 of receiving stolen property knowing it to have been stolen. [4] In his detailed response.' [8] It is patently clear from the utterances of accused 1's father that his interests and those of accused 1 were at loggerheads. [5] Reverting to the facts of the case. the magistrate maintains that the conviction and sentence be confirmed. Accused 2 was 20 years old.CLS cc © English Notes 69   that the sentences imposed are appropriate. the record reveals clearly that at the commencement of the trial the magistrate explained the right to legal representation to both accused. 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 Critical Law Studies cc © a b . He was home on 1983/09/4. 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. He was in a serious c d e f g h i j S v SEABI AND ANOTHER 2003 910 SACR 620 623 and irreconcilable conflict of interests. The director of Public Prosecutions has raised additional irregularities. Clearly accused 1's father was not able or even willing to assist accused 1. [6] It is clear from the evidence that the stolen diesel belonged to accused 1's father. I want him punished. It does not appear anywhere in the record if accused 1 asked for his father's assistance or whether he was asked if he accepts his father (the complainant again him) as his assistant during his trial. he sacrificed the interests of accused 1 to advance his own selfish personal interests. Furthermore it appears clearly from the record that competent verdicts of theft and the legal implications thereof were never explained to the accused. the question to be answered is whether this irregularity is so serious that it can be said to have resulted in a failure of justice. as the two accused were never asked whether they pleaded guilty freely and voluntarily.

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'. 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. 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. accused 1 was indeed entitled to a fair trial. daarby voorgelig word. vir sover nodig. This is particularly important where the court has to deal with uneducated. it must manifestly be seen to be done. particularly unrepresented accused. Die eerste oogmerk van die pleitproses is immers om vas te stel of die Critical Law Studies cc © . However. 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. and that in conformity with the object of the Legislature our courts have correctly applied the section with care and circumspection . which prides itself on a progressive and enlightened Constitution underpinned by an impressive Bill of Rights. 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. 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. In simple terms accused 1 did not receive a fair e trail.) 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. It is clear from his utterances that he was only interested in a conviction. illiterate and unsophisticated accused. [10] As the Director of Public Prosecutions correctly pointed out. voluntarily and without any undue influence. . according to the record neither accused 1 nor accused 2 were ever asked if they pleaded guilty freely. followed by direct imprisonment. 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. The dictates of fairness and justice demand that the entire proceedings be set aside as not being in accordance with justice.. Indeed accused 2 pleaded guilty to the charge. What happened to accused 1 in this trial is unfortunate. that they be asked if their pleas are free. 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.' (My own emphasis. It is seriously unthinkable that c accused 1's father could do anything that would assist accused 1 in his case. voluntary and without any undue influence. Daarom is dit belangrik dat 'n onverteenwoordigde beskuldigde. 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)..CLS cc © English Notes 70   flourish. which was read f out to him. 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. which conforms strictly to the basic notions of d fairness and justice. voluntarily and without any undue influence. As a citizen of our country.

2. I do not think that it is necessary to deal with the other irregularities raised by the Director of Public Prosecutions.. I find that the proceedings herein were vitiated by gross irregularities. [12] In the view that I take of this matter. This would be in serious conflict with s 35(3)(h) and (j) of the Constitution. 3. The conviction and sentence in respect of both accused 1 and 2 are hereby set aside. 2. In conclusion. C Failure to do so can result in travesty of justice where accused . presiding officer. 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..CLS cc © English Notes 71   beskuldigde vrywilling. parent or guardian.'* (My own emphasis. 4.) Without doubt.. bewustelik en ewe belangrik. which culminated in a failure of justice. 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 B C D Critical Law Studies cc © . The attitude and role played by accused 1's father raises serious suspicions about the fairness of the trial relating to accused 1. knowingly and without any undue influence. betroubaar iedere element van die ten laste gelegde misdaad erken.. D Undefended accused having to contend with combined might and force . A In simple terms accused not receiving fair trial. I am in respectful agreement with c the views expressed above. No civilised or enlightened system of criminal justice can allow accused to be d convicted on 'forced pleas of guilt'. B Although S112 (1) of Criminal Procedure Act 51 of 1977 doesn't . f Van der Merwe J concurred.. Act 108 of 1996. attorney. The letters A to D below identify four quotations from the head notes. [11] Clearly it cannot be said that the pleas of guilty tendered by both accused 1 and 2 were made freely. including the appropriateness or otherwise of the e sentences imposed. Use these letters in answering questions 2 and 3. 3. 4.

4. 'it was the judge's view'.CLS cc © English Notes 72   Question 3 Which of the quotations above led to the present hearing being held? 1. that the conviction and sentence be confirmed. for leave to appeal the sentence. 2. for a postponement of the trial. had no attorney to defend him. 3. 4. The accused's father was not able or willing to assist the accused. Question 6 The word 'held'. refused to defend himself. Question 7 Here are some of the actions relating to the trial of the accused in this case: 1. 5. was not in court to defend himself. that the conviction and sentence be set aside. 4. A B C D Question 4 The applicant in this case is asking 1. 2. It is clear from the summary on page 620 that the two accused did not receive a fair trial because of 1. A only. 2. was defended by his father. 3. 2. Question 5 In the head notes the words ‘undefended accused’ means that the accused 1. 4. 2. it was the view of the director of Public Prosecutions'. The accused's father and the accused were at loggerheads. The accused was assisted by his father who was the complainant at the same time as he was assisting the accused. (used between paragraph j to paragraph d pages 620 to 621) can best be understood to mean 1. 'the magistrate argued'. 4. 3. Critical Law Studies cc © . The undefended accused had to contend with the combined might and force of the state prosecutor and his father. 'it is a fact'. 3. The accused was a minor who was assisted by a parent. 3.

C. weakened. Question 9 Three of the following statements are correct. 2.CLS cc © English Notes 73   2. Question 11 In this context the word ‘vitiated’ (between paragraph d and paragraph e on page 621) means 1. supported. just in case. D and E but not A. Question 10 The phrase in casu (between paragraph d and paragraph e on page 621) means 1. 4. The interests of the father and those of the accused were at odds. Question 12 In this context. the intimations of accused 1's father that he wished to have his son punished. The father would have done anything to assist the accused in his case. 3. the assistance that the state prosecutor received from the accused's father. The father was only interested in a conviction followed by direct imprisonment. The father sacrificed the interests of the accused to advance his own selfish personal interests. B. 2. in the case under review. 1 and 2 are correct. Critical Law Studies cc © . even though. Question 8 The two accused were convicted in the district magistrate's court based on 1. 2. 3. B and C but not D or E. destroyed. 2. 4. 4. 4. 3. B and D but not C and E. 4. strengthened. the two accused were forced to plead guilty. 3. Which is the EXCEPTION? 1. ‘forced plea of guilty’ (between paragraph d and paragraph e on page 621) means 1. A. A. in order to make sure that. their pleas of guilty to a charge of stealing diesel. 3.

the appropriateness of the sentence. he convicted the two accused based on the answers that they gave to the State prosecutor. 3. Which is the EXCEPTION? 1. the pleas of the two accused were not free. 1 and 3 are correct. The sentence imposed on the accused was harsh and inappropriate. 4. Question 17 Critical Law Studies cc © . the two accused voluntarily pleaded guilty. in conclusion. Question 15 Three of the following are additional irregularities raised by the Director of Public Prosecutions. Question 13 It is clear from the magistrate's response to the judge that 1. among other things. The involvement of the complainant in the trial as an assistant to the accused was a serious irregularity.CLS cc © English Notes 74   2. 3. therefore. in addition. 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. The Director of Public Prosecutions pointed out that the pleas of guilty were irregular. that the proceedings were in accordance with justice. 4. All of the above. 2. 3. 4. voluntary and without undue influence. 1 and 2 are both correct. 2. Question 16 The phrase inter alia means 1. 2. 4. 3. the tough sentence imposed on the two accused was appropriate. 2. 4. The competent verdicts of theft and the legal implications were not properly explained to the accused. the father of the accused did not play a major role in the trial. that the reasons for convicting the two accused are satisfactory. 3.

2. The father of accused 1 was excused as an assistant to his son in this trial. Neither of the accused was asked if they pleaded guilty. accused. undisputed. D. Both 2 and 3 are correct. the Director of Public Prosecutions’ unanimous view is… The best synonym for ‘unanimous’ in this context is 1. B and D but not C or E A. 2. 3. questionable. B. 4. Which of the above actions is/are not revealed in the court records? 1. C. because the judge has serious doubts as to whether the proceedings were in accordance with justice. undeniable. 3. Question 19 The following actions relate to the facts of the case: A. 2. 4. Question 21 Critical Law Studies cc © . At the beginning of the trial the magistrate explained the right to legal representation. Question 18 This case is on review in the high court 1. 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.CLS cc © English Notes 75   On page 622 at e. E. D and E C. A. Accused 1 asked for and accepted his father's assistance in this trial. State prosecutor. D and E B and C but not A. Magistrate. 3. 4. Judge. in terms of S 302 (1) (a) (i) and (ii) of the Criminal Procedure Act 51 of 1977. in terms of S 112 (1) (b) of the Criminal Procedure Act 51 of 1977. 2. debatable. 3. 4. Utterances of the complainant were used against accused 1.

The Constitution Act 108 of 1996. 4. s 302 (1) (a) (i) and (ii) of the Criminal Procedure Act 51of 1977. 3. receiving stolen property knowing it had been stolen. ANSWERS Critical Law Studies cc © . 4. Question 23 In reviewing the case. pleas of guilty appropriateness of the sentences the role played by accused 1's father 1 and 3 are correct. on which irregularities does the judge base his final decision? 1. Van der Merwe admitted defeat. 2. 2. Question 25 The statement ‘Van der Merwe J concurred’ means that 1. Van der Merwe declared the review to be concluded. Question 22 The principle of a fair trial is enshrined in 1. 3. 3. accused are free to go home. Van der Merwe J agreed with Bosielo J's decision. 4. 1 and 2 are correct. stealing 25 litres of diesel. 1 and 2 are correct. 2. 2. the conviction and sentence in respect of both accused 1 and 2 are hereby set aside. 2. because the case has been dismissed.CLS cc © English Notes 76   The second accused in this case is convicted for 1. 4. This means that the 1. s (112) (1) of the Criminal Procedure Act 51 of 1977. accuseds’ sentences have been suspended. 3. accused will have to appear in court for a new trial. 4. Bosielo agreed with the magistrate’s decision. Question 24 In handing down his judgement the judge says. accused will have their sentence reduced. attempting to steal 25 litres of diesel. 3.

21. 22. 16. 17. 4 8. 18. 12. 20. 13. 25. 2 3. 1 7. 15. 3 6. 11. 2 9. 2 2. 3 1 3 4 4 4 2 3 2 4 3 2 3 4 3 4 Critical Law Studies cc © . 24. 4 4. 19. 14. 3 10. 23.CLS cc © English Notes 77   1. 1 5.

It appeared that the conviction was based largely on the evidence obtained by a search of the house where the accused lived. He was sentenced to a fine of R10 000 or three years’ imprisonment. the defending attorney could not put his f 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. 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. Cur adv vult. The court refused this request. In th light of the irregularity and the evidence as a whole the conviction had to be set aside. Held. g Appeal from a conviction in a magistrate’s court. further.CLS cc © English Notes 78   S v NTZWELI CAPE PROVINCIAL DIVISION JALI J and ERASMUS AJ 2000 November 17. At the trial the accused’s legal representative contended that the d 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. without the accused being subjected to cross examination on the issue of his guilt. This had amounted to a failure of justice and rendered the trial unfair. Held. LJ Badenhorst for the State. On appeal. Postea (15 December). JM Theron for the appellant. 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 e permission or not. c 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.   361 Critical Law Studies cc © h i j . The appellant appeals against both conviction and sentence. 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. that this failure meant that the evidence had been admitted before the question of its admissibility was determined. The court’s refusal to entertain the application had deprived the court the opportunity of establishing these facts. the whole sentence being suspended for a period of five years on various conditions. December 15 a b 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.

including the fact that the house was searched without the necessary search warrant. There are other people who come and live there. They also raised the issue of the constitutionality of the search in their plea explanation. This submission is. there have been a number of judgments which have considered the d e f g h i j Critical Law Studies cc © . Whilst they were searching. The accused pleaded not guilty and stated in amplification of their plea that they had no knowledge of the dagga. the appellant’s legal representative in the court a quo made an application for the holding of a trial-within-a-trial. Both accused did not testify or lead any evidence in their defence. The aforesaid dagga was found in the lounge of a two-roomed house under certain crates. It is apparent that. 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. Thirdly. inter-linked with the first two points as well. They lived together in one room in the same dwelling. the accused was allegedly found in possession of 25 packets of dagga. since the advent of constitutionalism in our country. The appellant and his co-accused were subsequently arrested and charged as set out above. The aforesaid dagga was found pursuant upon a b search by the police who did not have the necessary search warrant. The basis of the said application was that the appellant did not consent to the search of the house. the appellant gave them permission to search the c house. Thereafter the accused closed their case. I will firstly deal with the third point which was raised by the appellant’s counsel. The appellant was convicted and sentenced as aforesaid. When Inspector De Waal Visser. The appellant’s co-accused was found not guilty and discharged. Clanwilliam. which was unsuccessful. Secondly. Subsequent to that. The appellant’s counsel has submitted that the conviction was inappropriate in a number of respects. According to members of the police. was testifying. That was never done thereafter. The magistrate ruled against the holding of a trialwithin-a-trial at that stage and said the necessity thereof would be considered after cross-examination. They then proceeded to search the house.CLS cc © English Notes 79   362 JALI J S v NTZWELI 2001 (2) SACR 361 CPD a The facts of the matter are briefly that on or about 10 July 1998 at or near Uitbreiding South. a member of the South African Police Dog Unit. the appellant’s co-accused in the court a quo. Fourthly. 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. they found the aforesaid dagga in the main room or lounge. obviously. and the accused did not consent to the search. when the police arrived at the house they knocked at the door and the appellant opened the door for them. and thus the search violated the appellant’s constitutional rights. In this Division. 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. in the district of Clanwilliam. came out of the other room in the house. the fact that the appellant was never advised of the fact that he could refuse to have his house searched.

In S v Mayekiso 1996 (2) SACR 298 (C) at 303H-I. 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. The Court went on. 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 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. Van Deventer J had expressed the view that in such matters the g approach which should be followed should be the one similar to the one followed by courts in deciding the admissibility of admissions and confessions. 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. In his judgment. an accused person has the right to have that question tried as a separate and distinct issue. an unreported judgment delivered on 31 August 2000 by the Full Bench of this Division. However. Van Deventer J held that an accused’s constitutional right to a fair trial. Bailey v The State Case No 215/200. the voir dire. In England the enquiry into voluntariness i is made at a “trial on the voir dire”. This is achieved by insulating the inquiry into voluntariness in a compartment separate from the main trial. At such trial. In South Africa it is made at a so-called “trial-within-a-trial. which is held in the absence of the jury. simply. 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 h trial-within-a-trial. in turn. 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. or. Where therefore the question of admissibility of a confession is clearly raised. followed the views of Van Deventer J in Mhlakaza’s case. In S v Mhlakaza and others 1996 (2) SACR 187 (C). Van Reenen J. dealt with the admissibility of identification b c d e f parade evidence. the accused can go into the witness-box on the issue of voluntariness without being exposed to j Critical Law Studies cc © . According to the Court that inquiry will. determine whether a trial-within-a-trial is to be held or not.CLS cc © English Notes 80   363 JALI J S v NTZWELI 2001 (2) SACR 361 CPD a 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’). who had to decide on the admissibility of evidence obtained in an unlawful search and seizure of the accused’s bag. 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 De Vries1989 (1) SA 228 (A) at 233 H-J. as contemplated in s 25(3) of the Constitution of the Republic of South Africa Act 200 of 1993 (‘the interim Constitution’). further. has to be decided in a trial-within-a-trial by the court.

without subjecting him to general cross - b c d e f g h i j Critical Law Studies cc © .CLS cc © English Notes 81   364 JALI J S v NTZWELI 2001 (2) SACR 361 CPD a general cross examination on the issue of his guilt. 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. However. S v Mhlakaza and S v Mayekiso did not arise. 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. the evidence was admitted before the question of its admissibility was determined. Secondly. The State bears the onus to prove his guilt. adopted a very flexible approach which leads to the consideration of the admissibility of unconstitutionally obtained evidence on a case-by-case basis. One cannot condone unfairness or an injustice because the accused person chose to exercise his other right which is enshrined in the Constitution. The court’s refusal to entertain the said application deprived the court the opportunity of establishing these facts. 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 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. the defending attorney could not put his client in the witness box on the issue of admissibility of the evidence in dispute. 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. without the accused being subjected to cross-examination on the issue of his guilt. 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. Kriegler J in Key v Attorney General Cape of Good Hope Provincial Division and Another 1996 (4) SA 187 (CC) at para [13]. if he decided to do so. See also S v Mofokeng 1992 (2) SACR 261 (O). In S v Zuma and Others 1995 (4) BCLR 401 (CC) at 411G-412A. The State counsel argued that the court should draw an adverse inference because of the appellant’s failure to testify. Firstly. 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 same approach would apply to the right to a fair trial contained in the new Constitution (s 35(3)). The second enquiry is to establish whether the refusal by the magistrate to hold a trialwithin-a-trial ‘rendered the trial unfair or was detrimental to the administration of justice’ in this case. This judgment was dealing with the right to a fair trial in the interim Constitution. 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’.

I cannot find any objective facts from which to infer such. The magistrate then drew an inference that the appellant must be the possessor of the dagga. The dagga was found hidden under crates in the one room. This provision was found to impose a burden of b c d e f g h i j Critical Law Studies cc © . the magistrate proceeded to convict the appellant and released his co-accused. it shall be presumed. or any other proven objective facts to support the drawing of such inference. If one considers the evidence led. as. according to their evidence. I will turn to consider the merits in this matter.CLS cc © English Notes 82   365 JALI J S v NTZWELI 2001 (2) SACR 361 CPD a examination on the issue of his guilt. as anticipated in S v Bailey to establish the nature of the constitutional objection. There was no evidence as to the ownership of the dagga found on the said day. Accordingly. In the absence of any evidence to prove the actual or constructive possession of the aforesaid dagga. was found to be unconstitutional. Notwithstanding the absence of the evidence relating to ownership. that the accused person was found in possession of such drug. Thirdly. The dagga may have belonged to the appellant’s co-accused for that matter. In S v Mello and Another 1998 (7) BCLR 908 (CC). until the contrary is proved beyond a reasonable doubt. it is apparent that there were two people in the house on the night in question. not even the inquiry. The two accused people did not testify. Furthermore. There was no evidence to suggest that he was the only one who had access to his room or the crates. the appellant’s application. was held by the magistrate. 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. The fact that the appellant lived in the house or that he opened the door does not mean that he possessed the dagga. refusal to have a trial-within-a-trial would amount to an infringement of an accused person’s constitutional right to a fair trial. the consideration of which was deferred to the end of the cross-examination of Inspector Visser. in casu. Notwithstanding the fact that members of the SAP knew that the appellant lived in the aforesaid house. In the circumstances I am of the view that there was a failure of justice in this matter and such rendered the trial unfair. 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. 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. The procedure of a trial-within-a-trial has been developed to ensure that an accused person receives a fair trial. Furthermore. was never conclusively dealt with. and 1998 (3) SA 712 (CC). The appellant was one of the two. 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. 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. they had always found him in the house when they were looking for him.

2. 4. The two accused were in the same house at the same time. On the other hand. The appeal succeeds. the appellant’s co-accused was found not guilty. 3. d In the light of the aforegoing the order I will give. 2. the accused 1. will be as follows: 1. Accordingly. which entrenched the presumption of innocence and the right to remain silent. 4. The search the police conducted in the accused’s house was illegal 2. I cannot find the bias upon which the c magistrate drew the inference which led to the conviction of the appellant. Is going to pay a fine of R10 000 Is going to spend three years in jail 1 and 2 Neither 1 nor 2 Question 3 The counsel for the appellant argued that 1. I cannot find the justification for the conviction of one and the release of the other. 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. 3. The appellant gave the police permission to search the house Critical Law Studies cc © . e S v Ntzweli Question 1 The purpose of this trial is to establish whether or not 1. 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. Erasmus AJ concurred. a so-called ‘reverse onus’. Ntzweli is guilty of the possession of dagga The evidence against Ntzweli is admissible or not The magistrate was right to refuse Ntzweli a trial-within-a-trial 1 and 2 Question 2 It is clear from the paragraph at d on page 361 that.CLS cc © English Notes 83   366 JALI J S v NTZWELI 2001 (2) SACR 361 CPD a proof on the accused. The evidence gained from searching the defendant’s house was inadmissible 3. The conviction and sentence are set aside. b 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. 2. whether or not this appeal succeeds.

since none of them apply Critical Law Studies cc © . 3.CLS cc © English Notes 84   4. since B applies Leave it in the passive voice. It would be best to 1. Living in the house where it is discovered 4. 7. 3. Having it on your person 2. since C applies Change it to the active voice. 3. To avoid having to say who did the action C. 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. Knowing the people to whom it belongs Questions 6. the concept of ‘being in possession’ of dagga includes 1. 4. 2. ‘to provide amusement for (a person or audience)’ To show hospitality to (guests)’ To hold in the mind: to entertain an idea’ To accept or allow (a proposal)’ Question 5 Judging from the first two paragraphs on page 362. since A applies Leave it in the passive voice. 2. A only B only Both A and B Neither A nor B Question 7 Here are three reasons for using the passive: A. 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. 4. Replace ‘pursuant upon’ with ‘during’ It would be in keeping with the principles of Plain English to do 1.’ Question 6 Here are two possible changes: A. To focus attention on the receiver of the action by putting it first The sentence quoted above is in the passive voice. To defuse hostility – actives are more blunt B. Delete ‘aforesaid’ B. Leave it in the passive voice. Having it among your possessions 3. 2. 4.

Ntzweli’s roommate in the house where the dagga was found 2. 4. 3. The original trial in the magistrate’s court 3. the word their refers to Ntzweli 1. 2. ‘Pursuant upon …’ ‘A search …’ ‘The police …’ ‘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. 2. 4. ‘… when the police arrived at the house …’ ‘They then proceeded to search the house’ ‘… the appellant gave them permission to search the house’ ‘Whilst they were searching …’ Question 10 The phrase ‘the appellant’s co-accused in the court a quo’ refers to 1. The other appellant. the phrase ‘in amplification of’ (c on page 362) means 1. 3. 1 and 2 Question 11 In this context. And his legal representative And his roommate And his roommate and their legal representative Only. The The The The close of the State case State case itself accused’s application for a discharge Criminal Procedure Act 51 of 1977 Question 13 In the sentence ‘thereafter the accused closed their case’ (at e on page 362). 4. 4. you would begin it with 1. 2.CLS cc © English Notes 85   Question 8 If you were (nevertheless/therefore) to change the sentence into the active voice. 4. ‘in expanding on’ ‘instead of’ ‘in increasing’ ‘contrary to’ Question 12 The phrase ‘which was unsuccessful’ (e on page 362) refers to 1. 2. 2. 3. 3. and should therefore be replace with his Critical Law Studies cc © . who is also appealing against the magistrate’s decision 4. 3.

2. The magistrate disallowed an application for a trial-within-a-trial E. 4. 3. 3. A C D E Question 17 The assertion which relates to the appellant’s constitutional rights is 1. A C D E Question 16 The assertion which relates to the appellant’s right to a fair trial is 1. 3. 2. The accused did not consent to the search C. The appellant was never advised that he could refuse to have his house searched D. 2. Educational institutions and the public press The police when the accused opened his door to them The accused’s defence counsel The magistrate in the original trial Critical Law Studies cc © . 3. 3. 4. A B C E Question 15 The assertion which casts doubt on the magistrate’s ability to decide on issues of guilt is 1. 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. the onus in assertion C must surely lie with 1. The house was searched without the necessary search warrant B. 4. 2. A B C D Question 18 Although it is not stated anywhere in this case report. 4.CLS cc © English Notes 86   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. 4. 2.

S v Mokoena (d-e on page 363) C. 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. 2. Should interpret the appellant’s silence as a sign of guilt Critical Law Studies cc © . Do not hold a trial-within-a-trial but give less importance to evidence that might not be admissible c. S v Mhlakaza and others (from b on page 363) B. 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. Should increase the penalty if the appellant does not appear at his own trial 3. 3. 3. 4. ‘court a quo’ ‘cross examination’ ‘interlocutory enquiry’ ‘criminal appeal’ Question 20 Here are three points of view on the admissibility of evidence: a.CLS cc © English Notes 87   Question 19 A term which is used with more or less the same meaning as trial-within-atrial is 1. Conform with the spirit and letter of the Constitution 4. Hold a trial-within-a-trial to decide the admissibility of evidence b. 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. 2. Protect the accused’s fundamental right to a fair trial 2. Aa Ab Ac Ab Bb Bc Ba Ba Cc Ca Cb 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. Keep the issue of admissibility of evidence separate from the issue of the guilt of the accused 3. 4. Will get a bad reputation if the appellant doesn’t co-operate 2.

Remain silent Question 25 In considering ‘the merits in this matter’. A trial-within-a-trial to establish the admissibility of the evidence against him 3. The appellant was entitled to a trial-within-a-trial but did not get one ANSWERS 1. 4 4. The guilt of De Vries. the judge overrules the conviction and sentence in the original trial. 4 3. 3 13. The failure of the police to obtain a search warrant before visiting the accused’s home 3. 4 11. Living in a house where dagga is found is not proof of possession 2. Insist on a search warrant before allowing the police into his home 2. 4 5. 1 and 2 Question 23 The ‘mischief’ (at g on page 364) refers to 1. Be considered innocent until proven guilty 4. 3 14. 3 9. 3 6.CLS cc © English Notes 88   4. There is no difference between the accused and his co-accused in their link with the dagga 4. 2 10. Mhlakaza and Mayekiso in the three trials cited 4. 3 12. Which one is the exception? 1. 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. 3 2. 3 8. Three of the following are reasons why he does so. 2 Critical Law Studies cc © . The 25 packets of dagga found in the accused’s home 2. 3 7. The ‘reverse onus’ which section 20 of Act 140 of 1992 places on someone found in the vicinity of drugs is unconstitutional 3.

25. 17. 16. 18.CLS cc © English Notes 89   15. 23. 21. 22. 4 3 1 2 3 4 2 3 4 4 4 Critical Law Studies cc © . 20. 19. 24.

) 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. further. in terms of s 15(4).) Held. further. Section 15(4) merely provided that the juristic act could be completed by later consent. consent could be given by way of ratification indicated that the alienations could not be void ab initio for want of consent. Once it was clear that the required consent had neither been sought nor given. that there was not sound reason why an aggrieved spouse should suffer prejudice pending the possible eventual division of the join estate. that the Legislature had merely provided for the manner in which G informal consent could be given. It followed of necessity that such alienation was void. 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. (At 386J-287B. The second plaintiff. made certain payments to the defendant. Held. illegality C follows and particular juristic act cannot survive. the alienation could not be lawful. The defendant contended inter alia that the prohibition was only effective as between the spouses and the aggrieved spouse had a remedy. 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. in that an adjustment in favour of the aggrieved spouse would be effected upon division of the joint estate and. the consent of both spouses was required. who was married in community of property to the first plaintiff. 22 A Case No. being the joint estate. illegality followed and the particular juristic act could not survive. had. (At 388F-G. that the fact that. 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. E further. during an illicit relationship with the defendant. To accommodate a lawful donation or an alienation without value. that the moment the causa for the acquisition fell away. The particular juristic act was incomplete without the consent of the other spouse and therefore without any force or effect. Critical Law Studies cc © .CLS cc © English Notes 90   BOPAPE AND ANOTHER v MOLOTO TRANSVAAL PROVINCIAL DIVISION MARITZ J 1999 February 18. When it was clear that such consent was absent.) H Held. which might or might not come about. The defendant had no right to retain what she had received and the plaintiffs had every right to recover it. (At 388E-F. which prohibited donations made from the joint estate without the consent of the other spouse. it followed of necessity that the particular asset or assets had to be returned whence it or they came. 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.

On the evidence before me. First and second plaintiffs were married in community of property in 1974. It appears that at the same time second plaintiff undertook the building of a new dwelling in Pietersburg for himself and his family. It appears that from about 1990 defendant was employed by the Lebowa Corporation and that roundabout the same time she bought her own house in Pietersburg. Second plaintiff thereafter continued to pay monthly instalments on the erf until the full purchase price was paid. Second plaintiff paid for the rental of the house occupied by defendant. Cur adv vult. Defendant had been resident in Lenyenye. 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. Both dwellings have been completed. Critical Law Studies cc © B C D E F G H I .CLS cc © English Notes 91   383 384 BOPAPE AND ANOTHER v MOLOTO MARITZ J 2000 (1) SA 383 TPD A J Avis v Verseput 1943 AD 311: referred to. to draw building plans for a dwelling to be erected on the erf in Potgietersrus. In 1982 second plaintiff started an extra-marital affair with the defendant. At the end of 1986 or the beginning 1987 she moved to Seshego in Pietersburg. Second plaintiff gave defendant R10 000. Two children were born of the marriage. of which R9 000 was used to pay the deposit on the erf. one Ramonyane. Maritz J: In this matter I have been favoured with written heads of argument. Statutes The Matrimonial Property Act 88 of 1984. Second plaintiff confessed and undertook to end his relationship with the defendant. Second plaintiff then obtained the services of an architect. This occurred at the end of August 1997. With minor alterations. that plaintiffs were married as aforesaid. Defendant also attended a college in Pietersburg for which second plaintiff paid. He never did. for which I am indebted to counsel. the building plans for these two dwellings where identical. ss 15(3)(c). P Ellis for the defendant. The facts appear from the reasons for judgment. She stayed in close proximity to the plaintiffs. In 1984 first plaintiff became aware of the affair and confronted second plaintiff. In 1996 defendant requested second plaintiff to obtain a dwelling for her. 15(4) and 20: see Jutas’ Statutes of South Africa 1998 vol 5 at 2-158-2-159. M Snyman for the plaintiffs. as from about 1984. Civil trial in action for repayment of a donation made contrary to s 15 of the Matrimonial Property Act 88 of 1984. defendant knew throughout. The relationship between second plaintiff and defendant continued unabated. Postea (February 23).

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). It is clear that second plaintiff and defendant arranged matters so as to have been able to share a vacation and second plaintiff paid for defendant’s expenditure. 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). defendant became acrimonious and ended the relationship between them and that the relationship has in fact been ended. The claim was therefore reduced to R194 159.CLS cc © English Notes 92   While the building of the two dwellings was in progress. 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. but I will endeavour not to have my judgment clouded thereby. Chief Chris Mothiba is a friend and confidant of the plaintiffs of longstanding. All payments towards the building of the dwelling in Potgietersrus were made through the banking account of such business. If the said expenditure were found to have been a donation. There is not much to be said morally for defendant and second plaintiff. 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. Plaintiffs rely on the illegality of the alleged donation for the claim of Critical Law Studies cc © A B C D E F G H I . Roundabout the same time. second plaintiff had occasion to go on vacation to Cape Town with his children in December 1997.95. Defendant also went on vacation to Cape Town BOPAPE AND ANOTHER v MOLOTO MARITZ J 2000 (1) SA 383 TPD 385 J accompanied by her children. First plaintiff did not take this lying down. Defendant refused and this litigation ensured in which plaintiffs claim repayment of the expenditure on her behalf. Second plaintiff testified that at the meeting between defendant and Chief Mothiba which he attended. 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 entire matter became rather nasty and the upshot was that second plaintiff confessed his enduring relationship with defendant to the first plaintiff. First plaintiff confronted second plaintiff but she was met with denials. as well as the fact that he was building a dwelling for her.14. These payments were related to invoices for building material supplied and services rendered. plaintiffs’ youngest son threatened to shoot defendant. Thus the total amount claimed was R221 458. Apparently second plaintiff and defendant were so brazen that plaintiffs’ second son gathered what was afoot and this was conveyed to first plaintiff. it is abundantly clear that first plaintiff never consented thereto nor would she have done so. 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. 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. I shall speak of all payments having been made by second plaintiff.

Defendant applied for absolution from the instance. he contends that the provisions of s 15 of the Act do not afford plaintiffs a right of recourse against defendant. A He attended the building site on virtually every second day during weekdays. in any event. It reads as follows: D ‘Subject to the provisions of this chapter. He also 386 BOPAPE AND ANOTHER v MOLOTO J MARITZ J 2000 910 SA 383 TPD employed a builder and ordered most if not all of the building materials. a donation or an alienation without value without the required consent has no effect other than between the spouses. Mr Ellis. He argues that in terms of s 15(9)(b) of the Act the aggrieved spouse has his or her remedy.’ Subsection (2) of 15 then provides that: ‘Such a spouse shall not without the written consent of the other spouse . Lukas Motiga.’ This prohibition is couched in peremptory terms. Section 14 of the Act has done away with the erstwhile marital power. there are no formal requirements.. As to the form of consent. he argues that the extent of the claim has not been proved and that.CLS cc © English Notes 93   repayment. 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. Mr Ellis has argued that. Both plaintiffs testified and they adduced the evidence of Chief Mothiba and the builder. He instructed the aforesaid architect. Thirdly. B whereupon defendant closed her case without adducing evident. an I adjustment shall be effected in favour of the other spouse upon the Critical Law Studies cc © . he contends C that the expenditures out of the plaintiffs’ joint estate do not constitute a donation. He attended the erf with the defendant to choose the building site.. 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. on behalf of defendant. (3) and (7). 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. the contracting of debts which lie against the joint estate.’ and then follows a listed number of juristic acts. what has been proved does not accord with the pleadings. Secondly.’ Section 15(1) is in the same vein and reads as follows: E ‘Subject to the provisions of ss (2). raised three defences to the claim. Should the joint estate suffer a loss as a result of a transaction without the required consent. 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. In the instant case consent was undoubtedly absent and nothing further need H be said about it. despite the prohibition in the Act. I shall deal with these contentions in the order that I have listed them. which I refused. 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. Firstly. It also needs to be said that second plaintiff personally supervised the construction of the dwelling. and which is not contrary to the provisions G of ss (2) or para (a) of this subsection.

hy ‘n borgakte kan onderteken sonder the vereiste toestemming van die ander gade. Sien ook Metro Western Cape (Pty) Ltd v Ross 1986 (3) SA 181 (A) te 188F. word formele vereistes neergelê om die ander gade te beskerm. Although the Supreme Court of Appeal reversed the aforesaid judgment on appeal on the merits. There is no sound reason why an BOPAPE AND ANOTHER v MOLOTO 387 MARITZ J 2000 (1) SA 383 TPD J aggrieved spouse should suffer prejudice pending a possible eventual A division of the joint estate.. sal die gevolg hê dat subarts (5) en (6) irrelevant is. by die uitleg van H regstellende wette. the aforesaid remarks by the G learned Judge were not met with disfavour.’ F Although the learned Judge’s remarks in regard to s 15(3) of the Act appear to have been obiter. Subartikel (6) bepaal dat. In my view it follows of necessity that such alienation is void. die regstelling sover as wat die woorde toelaat uitgebrei behoort te word.)’ In my view the dictum supports the finding of the learned Judge in the I Critical Law Studies cc © . 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)). Die beginsels wat toegepas moet word. Mr Ellis further points out that a division of the joint estate is possible in terms of s 20 of the Act. wat nooit die bedoeling van die Wegewer kon gewees het nie. kan nie tot ‘n ander uitleg lei noe. wat subart (5) betref. (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. There is no reason to limit the remedies of an aggrieved spouse to the four corners of s 15(9)(b) of the Act. in sekere besondere omstandighede wat om die een gade wentel. I do not agree. 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. 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. which may or may not come about.. Die bewoording van art 15(2) is gebiedend: “So ‘n gade mag nie . To accomplish a lawful donation or an alienation without value. (See Amalgamated Banks of South Africa Bpk v De Goede en ‘n Ander 1997 (4) SA 66 (SCA).” (“such D a spouse shall not”). 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. When it is clear that such consent is absent. the alienation cannot be lawful. word uiteengesit in Swart v Smuts 1971 (1) SA 819 (A) te 829 in fine-830C. Om te betoog dat nie nie-nakomding van subart (2)(h) nie tot nietigheid lei nie.) 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. 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. the consent of both spouses is required. Uitsonderings word in subarts (5) en (6) geskep. the reasoning adopted is nevertheless sound and persuasive.CLS cc © English Notes 94   division of the joint estate.

except where it is required for the registration of a deed in a deeds registry. In respect of the other instances the Act is silent B and the better view appears to be that the transaction is void. and ss (3) may. I do not consider that this is the true meaning to be ascribed to the provision. In my view defendant has no right of retaining what she has received and the plaintiffs have every right to G recover it.’ In footnote 4 the learned authors rely on Van Wyk 1985 De Rebus 22. being the joint estate. 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. See further Joubert (ed) The Law of South Africa (first re-issue) vol 16. However. 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. The particular juristic act is incomplete without the consent of the other spouse and therefore without any force or effect. It is difficult to imagine an unfaithful husband acting out of pure liberality in showering his paramour with gifts. Once it is clear that the required consent was neither sought nor given. but points out that Sinclair An Introduction to the Matrimonial Property Act 1984 at 20 says that the acts are not invalid.’ He argues that an alienation which is void ab initio cannot be ratified. Cronje and Olivier Persons and Family Law at 219. There is nothing attractive in the argument and there is no room for limiting the plain meaning of the act Critical Law Studies cc © . 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. but can reasonably be expected to know that this is the position. C However.CLS cc © English Notes 95   Court a quo which I have quoted above. The moment the causa for the acquisition falls away. In the first mentioned instance the Act deems the transaction to be one entered into with the required consent. In this regard he stressed the element of pure liberality. This E provision merely provides that the juristic act may be completed by later consent. relying on Avis v Verseput 1943 AD 311. 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. The Legislature has merely provided for the manner in which informal consent may be given. also be given by way of ratification within a reasonable time after the act concerned. it follows of necessity in my view that the particular asset or assets must return whence it or they came. Van Aswegen 1984 MB 146 and Barnard. D As a general rule this is so. Mr Ellis contended that ‘donation’ should be narrowly construed . illegality followed and the particular juristic act cannot survive. 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). Secondly.

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  in such a gratuitous manner. It does strike a false note that second 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 BOPAPE AND ANOTHER v MOLOTO MARITZ J 2000 (1) SA 383 389 TPD

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J A

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 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 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 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’ 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.’ 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 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 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 date hereof to date of payment; (c) costs of suit. Plaintiffs’ Attorneys: Haasbroek & Boezaart Inc. Defendant’s Attorneys: Booysen, Dreyer & Nolte.

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Bopape and Another Question 1 What law is applicable in this case? 1. 2. 3. 4. Persons and Family Law Proprietary Rights Section 14 of the Matrimonial Property Act 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. 2. 3. 4. Mrs Bopape. Mr Bopape. Ms Moloto. Chief Mothiba.

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Question 5 The defendant in this case is 1. 2. 3. 4. Mrs Bopape. Mr Bopape. Ms Moloto. Chief Mothiba.

Question 6 The presiding officer/judge in this case is 1. 2. 3. 4. Ellis. Haasbroek. Motiga. Maritz.

Question 7 Who represented the defendant in court? 1. 2. 3. 4. Ellis. Haasbroek. Motiga. Maritz.

Question 8 The first plaintiff 1. 2. 3. 4. was was had had married to the defendant in 1974. married to the second plaintiff in 1974. an affair with the defendant in 1982. an affair with the second plaintiff in 1982.

Question 9 Which of the following statements about the defendant is NOT true? 1. 2. 3. 4. The The The The defendant defendant defendant defendant moved from Lenyenye to Pietersburg in 1987. worked for the Lebowa Corporation. was aware that her lover was married. 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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I I I I will try not to let this affect my ability to make the right decision. The defendant and the second plaintiff aroused the suspicion of the plaintiffs’ second son while on holiday in Cape Town. What were the grounds for this claim? 1. attorney representing the defendant. 2. Question 13 The judge states ‘I will endeavour not to have my judgement clouded thereby’ (page 385 F). 4. e. The best interpretation of the words in italics is 1. f.CLS cc © English Notes 99   c. 3. First plaintiff reacted strongly to the situation. bdef defb edfb dfeb g g g g ca ca ac ca Question 11 The plaintiffs claimed an amount of money back from the defendant. 3. hope this will not prevent me from making the right decision. 2. 4. 2. Question 12 Mr Motiga is the 1. hope I will be able to keep a clear head in this situation. architect who designed the house paid for by the plaintiff. The first plaintiff had never consented to the payment of this money to the defendant. g. attorney representing the plaintiffs. builder who built the house paid for by the second plaintiff. 3. 4. d. 2. Second plaintiff confessed that he still had a relationship with the defendant and was in fact building her a house. 4. First plaintiff confronted second plaintiff about the affair but the latter denied everything. First plaintiff and defendant had an acrimonious chance meeting in the bank. 1. Question 14 The judge states ‘I will endeavour not to have my judgement clouded thereby’ (page 385 F). All of the above. What does the word ‘thereby’ refer to in this context? Critical Law Studies cc © . The expenditure amounted to a donation. 3. The alleged donation was illegal. will try not to let this prevent me from making the right decision.

3.’ Question 16 If Mr Bopape were the only plaintiff. 4. that the proceeds could form part of the joint estate and the guilty spouse could benefit in this way. The unpleasant ending to the affair which took place at the meeting between the defendant and Chief Mothiba. The fact that the relationship had ended after the meeting with the chief. 3. ‘It does strike a false note that second plaintiff has joined in the action against the defendant. 2. ‘It is difficult to imagine an unfaithful husband acting out of pure liberality in showering his paramour with gifts. 2.’ 2. ‘It may be that an unfaithful husband could not recover unlawful donations to his paramour … . quantity. ‘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. 4. These are best expressed by 1. quantification. calculation. 3. 2. Critical Law Studies cc © . that the proceeds could not form part of the joint estate and the guilty spouse could not benefit in this way. that an unfaithful husband could not recover unlawful donations to his paramour. The adulterous relationship between the second plaintiff and the defendant.’ 4. that an unfaithful husband could recover unlawful donations to his paramour. which the second plaintiff also attended. the judge would be likely to decide 1. Question 17 ‘The manner in which the plaintiffs sought to prove the quantum of their claim …’ (page 385 G). amount. The unpleasant ending to the affair which took place at the meeting with Chief Mothiba. Question 15 The judge has particular feelings about Mr Bopape’s joining his wife in this action.CLS cc © English Notes 100   1. 4. The word quantum as it is used here means 1.’ 3.

3. added. 3. accused the defendant of lying to her. Critical Law Studies cc © . What does this sentence NOT imply in this context? 1. 2. If one is married in community of property. 3. The best replacement for adduced in this context is 1. did not take to her bed on hearing about her husband’s affair. 4. proved. Question 20 The judge’s findings were 1. 3. cited. both partners must consent to a donation being made to a third party 2. for the plaintiffs against the defendant for repayment of a sum of R194 159. First plaintiff did not know about the gifts to the defendant and thus could not give her consent. 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. This means that the first plaintiff 1. took to her bed on hearing about her husband’s affair. the gift becomes unlawful. both partners need not consent to a donation being made to a third party. reacted very strongly to the fact that her husband had been unfaithful. that the defendant accepted benefits which were clearly prejudicial to the first plaintiff. for the plaintiffs against the defendant. Lukas Motiga’ (page 386 A). 2. If consent to a gift is not given by both spouses. Question 21 ‘Once clear that required consent not sought or given. 4. 95 with interest and the costs of the suit. 2. Question 19 ‘Both plaintiffs testified and they adduced the evidence of Chief Mothiba and the builder. ceded. 4. 4. illegality follows and particular juristic act cannot survive’ (page 383 C).CLS cc © English Notes 101   Question 18 ‘The first plaintiff did not take this lying down’ (page 385 C). If one is married in community of property.

The matrimonial Property Act 88 of 1984. Avis v Verseput 1943. G) can best be expressed in plain English as 1. that the prohibition was only effective as between the spouses and the aggrieved spouse had a remedy. expected the second plaintiff to divorce his wife and pay her back from the subsequent division of their estate. Amalgamated Banks of South Africa Bpk v De Goede en ‘n Ander 1997. 3.’ (page 386 para. expected the second plaintiff to marry her. inter alia. 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. consent could be given by way of ratification indicated that the alienation could not be void ab initio for want of consent. 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 … . in terms of s 15 (4). and Juta’s Statutes of South Africa 1998. 2. Avis v Verseput 1943. expected the second plaintiff to divorce his wife.CLS cc © English Notes 102   Question 22 ‘The defendant contended. 2. further.’ The implication of the underlined words is that the defendant 1. Amalgamated Banks of South Africa Bpk v De Goede en ‘n Ander 1997. 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. 3. in that an adjustment in favour of the aggrieved spouse would be effected upon division of the joint estate and. 2. 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. Amalgamated Bank of South Africa Bpk v Lydenburg Passasiersdienste BK en Andere 1995. 4. 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. Amalgamated Bank of South Africa Bpk v Lydenburg Passasiersdienste BK en Andere 1995. 3. Critical Law Studies cc © . did not expect the second plaintiff to divorce his wife. that the fact that. Question 23 The judge cites the following cases to support his decision: 1. 4. 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. Avis v Verseput 1943.

4 7. 11. 16. 2 4 1 1 3 1 3 2 2 4 4 4 2 2 2 1 Critical Law Studies cc © . 12. 13. 19. 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. 21. 20. 23. 25. Instances where a third party does not know that he is entering into a transaction without the consent of the other spouse. 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. 3 3. 24. 14. 1 5. 4. 2 4. Instances where a third party knows that he is entering into a transaction without the consent of the other spouse. 3. 2. 4 2. Which of the following does it pronounce as invalid? 1. but can reasonably be expected to know that this is the position. ANSWERS 1. 15. 18. 1 8.CLS cc © English Notes 103   Question 25 The Matrimonial Property Act only makes one direct pronouncement on the validity of acts which demand the consent of the marriage partner. 3 6. 4 10. 17. 2 9. 22.

CLS cc © English Notes 104   PREVIOUS ASSIGNMENT TASK 1: READING Below are the questions which were set on the passage. through the family lawyer. after he had applied. b. a. resided legally with him in England. Judging by the context. Explain in your own words why the custody issue should be dealt with in England. who is the legal custodian of the child. Critical Law Studies cc © . [2] ‘Yesterday. ‘The habitual country will deal with the custody and access battle. b. 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. 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 7). the ‘habitual’ country. the smartly dressed boy was entered into the court record as an intervening applicant. 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. a. c. 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. to join the court proceedings.’ (paragraph 8) Quote the sentence from the passage which gives the reason for this demand. ‘The mother.

Abduction [4] ‘It (unlawful removal and/or retention) has now become any everyday matter as South Africa becomes part of the international community. 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.’ (paragraph 12) 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. but not who should have custody of the child.CLS cc © English Notes 105   [3] Find a synonym in the passage for ‘unlawful removal and/or retention’ (paragraph 11). the other a case for the family courts. a. The High Court can decide whether the child was unlawfully taken away. One is a criminal offence. Critical Law Studies cc © .

…………………………… …………………………… …………………………… Date (e. ……………………………………………………………………………………….CLS cc © English Notes 106   TASK 2: WRITING You were asked to write a letter addressed to the Course Coordinator. 2 May 2007) Name/ Title of Addressee Address ……………………………… ……………………………… ……………………………… Dear Sir/ Madam (or person’s title and surname..g. ………………………………………………………………………………………. 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). ………………………………………………………………………………………. ………………………………………………………………………………………. Dr Spencer) SUBJECT LINE (capitals or underlined) Introductory paragraph ………………………………………………………………………………………. Your address …………………………. Yours faithfully (if you wrote Dear Sir/ Madam). ………………………………………………………………………………………. Yours sincerely (if you used a name after Dear) Signature Printed name Critical Law Studies cc © . e. Concluding paragraph ………………………………………………………………………………………. ………………………………………………………………………………………. ………………………………………………………………………………………. One paragraph or more on the substance of the letter (in this case your reason(s) for requesting an extension) ………………………………………………………………………………………..g.

additions and improvements 13.1.CLS cc © English Notes 107   TASK 4: READING AND WRITING Question 1 Work through the activities on pp. 14.3 the condition or state of repair of any part of the Building or Property at any time. labourer. or of any cleaner. watchman. 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. electricity. artisan. servants. but not later than (a previously specified number) days after the Lessee has handed over the premises on termination of the lease. his agents.1 a breach of any of the obligations of the lease by the Lessor.2 If the Lessee makes any alterations. guard. contractors.4 any failure of or interruption in the supply of water. Simplify the clauses in the box on pp. 13. fault or legality) by the Lessor. 14 Exclusion of lessor from certain liability and indemnity 14. however.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. The Lessor may request this at any time. or commissionaire. direct or indirect: 14.2) become the Lessor’s property and may not be removed at any time. Critical Law Studies cc © .1. The Lessor remains entitled to seek remedies to breaches under 13. 14. maintenance person. heating. gas.1. The Lessee will not be entitled to compensation from the Lessor for any improvements made to the premises.1.1. additions or improvements.2 an act or omission (regardless of negligence. 13.1 The Lessee will not make any structural alterations or additions to the premises before obtaining the consent of the Lessor. 186 – 188 (pp 176 – 178 in the first edition) and submit only this section in your assignment. or any other amenity or service to the premises. 13 Alterations. 184 – 186 (pp 172 – 174 in the first edition). 14. workman. whatever this is caused by.3 All improvements that are made by the lessee (other than those removed in terms of 13. either with or without the Lessor’s permission. air conditioning. handyman. but the Lessor will not be unreasonable in granting permission for alterations or additions that are not structural.

shall not be criminally responsible for such act. it must first be established that the accused was suffering from a mental illness or defect at the time of the act. “mental illness” has been defined in the Mental Health Act. or whether no mens rea be required for the crime in question. Criminal incapacity or non-responsibility Legal criterion for non-responsibility Criminal responsibility is a legal concept and not a medical or psychiatric concept. It is impossible and dangerous too. in particular the use of the word “incapable” in the context of the subsection.” Responsibility a prerequisite for criminal liability Criminal responsibility is an indispensable prerequisite for criminal liability in regard to any offence.CLS cc © English Notes 108   14. “mental illness” and “mental defect” are not defined in the Act. for a court to try and seek a general symptom by which a mental disorder can be recognised. confirms this view. Mental illness or defect In order not to be found criminally responsible for his conduct. 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. but certifiability Critical Law Studies cc © . In South Africa the criterion for criminal responsibility is contained in section 78 of the Criminal Procedure Act. plant.5 any breakdown or interruption (for whatever reason) in the operation of any machinery. The criterion of non-responsibility embodied in section 78 (1). Whether mental illness or defect was present or not is therefore a question of psychiatric evidence. in fact required – it must be established that we has responsible at the time of the act. regardless of cause. boilers. escalators. which provides as follows: “A person who commits an act which constitutes an offence. As we have seen. Before the question can be asked whether the accused had a specific form of fault – where fault is. whether mens rea be required in the form of intent or negligence. burglar alarms and security installations or systems. This includes but is not limited to lifts. or (b) of acting in accordance with an appreciation of the wrongfulness of his act. installation or system that is in or on the premises or which serves it. as indicated expressly in section 78.1. equipment. As I have mentioned. 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.

especially if it is chronic. can result in a condition which can be clearly diagnosed as mental illness. does not constitute mental illness. it need not be proved that the mental illness was of a permanent nature or that it is incurable. concussion. the use of alcohol. A person who suffers from mental illness and commits an unlawful act during a lucidum intervallum. eg delirium tremens. as we have seen. Moreover. Although. which means that legally the accused is regarded as not having acted at all.CLS cc © English Notes 109   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. mere concussion. “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. drugs or medicines. the consumption of alcohol. mere occasional mental aberration as the result of the use of alcohol does not constitute mental illness. functional (as distinguished from mere temporary.” It would likewise be wrong to interpret an inclination to violence in the accused as being in itself an indication of mental illness. It could just as well be organic in origin. to prove that the origin of the accused’s mental illness or defect lies in his mind. which causes a temporary interruption in the flow of blood to the brain and loss of consciousness. 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. can in fact be found to have been responsible at the time of the act. On the other hand. So too. It is not necessary. Critical Law Studies cc © . alcohol-induced) hypoglycaemia (shortage of blood-sugar) can occasion mental illness as can a traumatic head-injury. however. eg arteriosclerosis (hardening of the arteries). It must therefore be shown that the condition of the accused constitutes a recognised pathological deviation. The same would apply to the long-term use of drugs or medicines which results in serious brain dysfunction. 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. more particularly when emotions are abused. This would be so even where a court had previously held that the person was mentally deranged. such a contrition could in fact cause automatism. however. The illness of the accused must have existed at the time of the conduct. “intelligent people also sometimes think and do stupid things. or is the result of provocation.

He takes keyconcepts from the section and then looks at how these have been interpreted by law writers and the courts. He goes on to look at the content of the section in detail. Look carefully at the first sentence under the sub-heading ‘Mental illness or defect’. 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? Critical Law Studies cc © . The writer starts his discussion by summarising the content of section 78. In the light of our discussion of section 78. help us in our search for an accurate definition of what it is? Quote from the text to substantiate your answer. Were you right in your predictions about the content of each sub-heading? Now read the whole text carefully. 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. Note how the writer discusses different aspects of section 78.CLS cc © English Notes 110   In this extract the writer discusses the interpretation of section 78 of the Criminal Procedure Act. 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. The sub-headings are used to tell the reader what a paragraph is about. 51 of 1977.

2 and 10.CLS cc © English Notes 111   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. additions and improvements 9 See Preliminary Note pars 5.’ Simplify the following clauses so that they are understandable to the parties to the contract. Article 28 If any foreigner has a child by a Liberian citizen.(72) The same would apply to the long-term use of drugs or medicines which results in serious brain dysfunction. For us to live together as true Liberians. 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. 13 Alterations. 13. or person whose mother or father is black can be Liberian citizen. delirium tremens.) Rephrase: ‘Only the law can say that a person is a citizen again and any Liberian can change his or her citizenship. e. i) ii) iii) iv) Do you think this is a successful attempt at simplifying the original text of the constitution? Why/why not? Are you perhaps able to detect any errors in the text in which words are left out? Do these omissions hamper comprehension? Quote an example of sexist language from this extract. only black man.1 The lessee shall not make any alterations or additions to the Premises without the Lessor’s prior consent.g. Only the law can say that a person is a citizen again and any Liberian can change his or her citizenship. (Sexist language is language which assumes the inferiority of one gender. Critical Law Studies cc © . but the Lessor shall not withhold its consent unreasonably to an alteration or addition which is not structural. that child will be a Liberian citizen too. The Legislature will pass law to show how any black foreigner can become Liberian citizen.

or interruption in the operation of. watchman. whatever the cause. or any interruption in. escalator. or any part of the Property or the Building. 13. or any other amenity or service to the Premises.1. the Building. electricity. again regardless of cause. R v Holliday 1924 AD 250. the Lessee shall. any cleaning service).1. whether in breach of clause 13.k any machinery.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. and this clause 13.1 a breach by the Lessor of any of its obligations under this lease.1 or not. all improvements made to the Premises shall belong to the Lessor and may not be removed from the Premises at any time. wilfully wrongful. 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. heating. whatever the circumstances. maintenance person. geyser. or security installation or system.2 If the Lessee does alter. workman. and including (without limiting the generality of the aforegoing) any act or omission of any cleaner.2. handyman.CLS cc © English Notes 112   (72) CFR v Bourke 1916 TPD 303.2 any act or omission of the Lessor or any agent or servant of or contractor to the Lessor. 14. The Lessee shall not. 14. whether or not negligent. have any claim against the Lessor for compensation for any improvements to the Premises. labourer. the supply of water. the Building.3 the condition or state of repair at any time of the Property. 307. 14. equipment. if so required in writing by the Lessor. or otherwise actionable at law. 14. guard.1. artisan. air conditioning. without generality being limited. installation or system situated in or on or serving the Property. 14 Exclusion of lessor from certain liability and indemnity 14. or improve the Premises in any way. or the Premises. plant.5 any breakdown of.1.1. gas.1. add to.m and including (but without limiting the generality of the aforegoing) any lift. Critical Law Studies cc © . or commissionaire. addition or improvement having been made.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. the Building.3 Save for any improvement which is removed from the Premises as required by the Lessor in terms of clause 13. 13.4 any failure or suspension of. boiler. or the Property (including. burglar alarm. restore the Premises on the termination of this lease to the condition as it was prior to such alteration.

CLS cc © English Notes 113   Critical Law Studies cc © .

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