UNIVERSITY OF THE FREE STATE

FACULTY OF LAW

LEVD 3705 – LAW OF EVIDENCE

ASSIGNMENT 2 – Heads of argument

Due: 31 August 2023 Marks: 50

You are an advocate in the Bar of South African Advocates in Bloemfontein. You are
briefed on a criminal case in which the client, Danny Rathaba, was convicted along
with Accused Number 2 on a charge of rape and kidnapping. The client wants you to
appeal his conviction to the Supreme Court of Appeal. Read the following and draft a
persuasive heads of argument on the grounds of appeal in accordance with
instructions:

In the trial court (Bloemfontein High Court), the client (accused 1, Danny Rathaba)
acted on his own behalf and pleaded not guilty to the charges that on 7 May 2023, he
forcefully took one Busisiwe Hlongwane to his home from a tavern, locked her in his
room, and sexually penetrated her without her permission, in Botshabelo, in the region
of the Free State. Accused Number 2 (Tim Tau) also pleaded not guilty, but provided
an admission in terms of section 219A of the Criminal Procedure Act 51 of 1977. In
this admission, Accused Number 2 admitted to helping the client take the complainant
to his (the client’s) home and lock her in the bedroom. He explained that he and the
client had planned the kidnapping in the tavern. He denies participating at all in the
rape.

During the trial:

Before the trial of first instance started, the client approached the prosecutor and
requested information about what evidence was going to be adduced against him in
the trial. The prosecutor informed the client that he needed to obtain legal
representation before the state would give the client such information. The client did

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not trust legal representatives, and elected to speak on his own behalf. The prosecutor
refused access to the docket, explaining that without legal representation, it was too
risky to give the client further particulars.

During the trial, the prosecution informed the court that the admission made by
Accused Number 2 was going to be adduced against the client since the admission
also implicated the client. Despite the client’s objection to the court using the
admission by his co-accused against him, the court admitted the formal admission
against both the client and Accused Number 2.

The complainant testified for the state, followed by the medical doctor who examined
the complainant. This doctor testified that upon the medical examination, she
discovered signs of vaginal penetration. When the client rose to cross-examine the
doctor, the court asked the client if he had any meaningful questions to ask. Because
he felt intimidated by court and the qualifications of the doctor, he decided that he did
not know enough to ask any questions, and sat down.

During the case for the accused, the client testified that he had invited Busisiwe to the
tavern close to their homes, and that she had met him there at 20:00. They had a few
drinks, after which he invited her to his home. She accompanied him voluntarily. He
further testified that at his home, he and Busisiwe engaged in consensual sexual
intercourse.

Identify the ground(s) of appeal in this scenario and draft a heads of argument in
accordance with good legal writing. You can assume that all matters regarding an
application for leave to appeal and any jurisdictional matters are in order.

Guidelines for the assignment:

 Include cover page: With title and declaration of own work.

 Proper formatting of heads of argument.

 Referencing: Proper authority for arguments must be provided. Source citations

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 must be provided in the prescribed format.

 Sources: Avoid low quality and newspaper sources, blogs and –pedia pages.

 Length of assignment: Your research should span no less than five pages or
about 2500 words (excluding cover page and
bibliography page). You will not be penalised for
submitted more than five pages.