Answer The Questions of Each Section in A Separate Answer Book! Section 1 Must Be Answered On The Sheet Provided

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: NOVEMBER 2010 SUBJECT, COURSE AND CODE: FOUNDATIONS OF SA LAW/ ASPECTS OF SA LAW (LAWS1FL)
(LAWS1ASP) DURATION: 3 HOURS External Examiner: Internal Examiners: TOTAL MARKS: 100 Professor J Lund Ms N Whitear-Nel Ms M Mamashela Ms A Strode Ms S Alli Ms T Winchester
STUDENTS ARE REQUESTED, IN THEIR OWN INTERESTS, TO READ THE INSTRUCTIONS CAREFULLY AND WRITE LEGIBLY. ________________________________________________________________________ PLEASE NOTE: This paper consists of Sixteen (16) pages. Please ensure that you have them all. There are FIVE (5) sections to this paper. Section 1 & 2 (30 marks each) are compulsory. You must answer TWO (2) of the remaining 3 sections (20 marks each) from Section 3, 4 and 5
ANSWER THE QUESTIONS OF EACH SECTION IN A SEPARATE ANSWER BOOK! SECTION 1 MUST BE ANSWERED ON THE SHEET PROVIDED. STUDENT NUMBER: ___________________ ________________________________________________________________________
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: NOVEMBER 2010 SUBJECT, COURSE AND CODE: FOUNDATIONS OF SA LAW/ ASPECTS OF SA LAW (LAWS1FL) (LAWS1ASP) PAGE 2
________________________________________________________________________ SECTION 1: Evidence Ms N Whitear-Nel [30 MARKS] COMPULSORY: Answer on MCQ sheet provided. Each question counts 1 mark. 1. The accuseds defence in a criminal trial is self-defence. Indicate which of the following statements is true a) The prosecution must eliminate all shadow of a doubt regarding the accuseds guilt before he will be convicted. b) The accused is required to prove that he acted in self-defence beyond any reasonable doubt. c) The prosecution must prove he did not act in self-defence, beyond all reasonable doubt. d) None of the above 2. W testifies that A is the person who killed D with a knife. He saw A do this, even though it happened at quite a distance and after the sun had set. a) This evidence is inadmissible because the lighting was bad, and W was at a distance from A b) This evidence is inadmissible because it is circumstantial evidence. c) This evidence is admissible direct evidence. d) None of the above 3. Once all the evidence by both parties has been adduced, but before the court evaluates all the evidence and comes to a decision, both parties will be given the opportunity to: a) b) c) d) give closing argument recall their 3 most influential witnesses re-examine all the witnesses cross-examine the witnesses
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: NOVEMBER 2010 SUBJECT, COURSE AND CODE: FOUNDATIONS OF SA LAW/ ASPECTS OF SA LAW (LAWS1FL) (LAWS1ASP)
PAGE 3 ________________________________________________________________________ 4. A "cautionary rule is: a) b) c) d) applied to complainants in sexual cases. is never applied to children is applied to accomplices and co-accused is outdated because it stereotypes people.
5. The cautionary rule is a rule of practice which assists the court in the evaluation of certain evidence. Which of the following is true? a) it requires that certain types of evidence be declared inadmissible b) it requires that the judge gets someone else to help him in evaluating the probative value of the evidence c) it requires that witnesses be cautioned to be truthful when giving evidence d) none of the above. 6. The purpose of cross-examination is: a) to elicit evidence which supports the cross-examiner's case, b) to cast doubt upon the credibility of the opposing party's witness. c) both a and b d) neither a nor b 7. The case of S v Fuhri dealt with: a) b) c) d) the admissibility of evidence obtained from a speed-trap camera the admissibility of videofootage from a cell phone the admissibility of Youtube clips the admissibility of audiotape footage
PAGE 4 ________________________________________________________________________ 8. If the court cannot decide whether the accused is guilty or innocent at the end of the trial: a) it will declare a stalemate b) it will convict the accused c) it will acquit the accused d) it will order a new trial 9. The purpose of examination-in-chief is a) b) c) d) to adduce relevant and admissible evidence, to raise doubt as to the credibility of the witness to allow the parties a chance to negotiate settlement to argue the case
10. Which of the following are examples of circumstantial evidence relating to whether Sally took R50 from the till? a) I saw Sally Smith take R50 from the till. b) I saw Sally unlock the till drawer. Later I saw she had R50 in her hand. When I checked the till I saw it was R50 short. c) I heard Sally tell her friend that she was short of cash. I then heard a customer complaining that she had been short-changed by Sally in the amount of R50.00 d) B and C 11. What requirements must be met for documentary evidence to be admissible, generally? a) b) c) d) it must be credible it must be genuine and authentic it must be reliable all of the above
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: NOVEMBER 2010 SUBJECT, COURSE AND CODE: FOUNDATIONS OF SA LAW/ ASPECTS OF SA LAW (LAWS1FL) (LAWS1ASP) PAGE 5 ______________________________________________________________________________
12. What requirements must be met for real evidence to be admissible? a) it must be genuine and authentic b) it must be reliable c) it must be credible d) it must be relevant 13. Videotapes are regarded as: a) b) c) d) Machine-generated evidence real evidence documentary evidence an uncertain combination of real and documentary evidence
14. A document is considered to be: a) b) c) d) A piece of paper with writing or printing on it. A physical thing with writing on it. A piece of fabric with writing on it All of the above
15. Which is the odd phrase out? a) b) c) d) Admissibility of evidence Weight of evidence Probative value of evidence Reliability of evidence
16. Determining the weight of evidence is a question of a) b) c) d) law fact both law and fact constitutionality
PAGE 6 ________________________________________________________________________ 17. The exclusionary rules a) determine that certain categories of evidence should be allocated a low probative value b) determine that certain categories of evidence should be given a low reliability index c) determine that certain types of evidence should be inadmissible d) all of the above correctly complete the sentence. 18. Which of the following statements is wrong? a) There is no practical difference between the burden of proof and the evidentiary burden. b) The burden of proof is the term applicable in criminal law, while the evidentiary burden applies in civil cases c) The burden of proof rests on the state, and the evidentiary burden rests on the accused d) All of them are wrong. 19. Which of the following statements is correct in relation to a criminal trial? a) The burden of proof shifts from the accused to the state and back again as the trial progresses b) The burden of proof rests on the accused throughout the trial c) The overall burden of proof rests with the state throughout the trial. d) The evidentiary burden rests on the state because of the presumption of innocence. 20. The accuseds right to a fair trial a) b) c) d) is encapsulated in section 35 of the Bill of Rights is encapsulated in section 36 of the Bill of Rights is encapsulated in section 35 of the Criminal Procedure Act is encapsulated in section 36 of the Criminal Procedure Act
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: NOVEMBER 2010 SUBJECT, COURSE AND CODE: FOUNDATIONS OF SA LAW/ ASPECTS OF SA LAW (LAWS1FL) (LAWS1ASP) PAGE 7 ______________________________________________________________________________
21. The finality rule is the rule that provides that a) once an accused has been acquitted he cannot be charged with the same offence on the same facts b) once the accused has given a comprehensive confession his guilt will be determined with finality : ie: he cannot appeal. c) if an accused has entered a plea of not guilty he cannot change his plea at a later stage. d) none of the above. 22. Judicial notice is where a) A judge notices that a witnesss demeanour is unusual. b) A judge accepts the existence of a fact without hearing evidence on the question. c) A judge notices that the accused has not been given a fair trial d) None of the above 23. Character evidence a) refers to a persons general reputation in the community b) refers to the accuseds tendency to commit crime as shown by his previous convictions c) character evidence is relevant to credibility and thus is always admissible. d) character evidence is irrelevant and is therefore always inadmissible. 24. In a rape case, the complainants sexual history is a) b) c) d) regarded as always irrelevant regarded as always relevant regarded as relevant to credibility but not reliability sometimes regarded as relevant and sometimes irrelevant
PAGE 8 ________________________________________________________________________ 25. An accused can be questioned on his bad character if a) b) c) d) he testifies that he has a good character he attacks the character of the complainant in a rape case he attacks the character of any prosecution witness all of the above
26. Hearsay evidence is excluded as a general rule because: a) it is unconstitutional b) it is irrelevant c) it is unreliable d) it is all of the above 27. The accuseds previous convictions are generally: a) inadmissible at bail, trial and sentencing proceedings b) inadmissible at the bail and trial stage, but admissible for the purposes of sentencing c) inadmissible at the trial stage, but admissible at bail and sentencing d) never admissible. 28. Similar fact evidence: a) is evidence that the accused is similar to his co-accused in terms of guilty mind b) is evidence that the accused has general criminal tendencies c) is evidence that the accused has been convicted of criminal acts in the past d) none of the above
PAGE 9 ________________________________________________________________________ 29. Privilege applies to a) b) c) d) doctors and patients lawyers and clients priests and members of their congregation all of the above
30. Accused X is charged with murder. Which of the following statements is true? a) If the accused's defence is self defence, the prosecution must disprove it. b) if the accused's defence is lack of criminal capacity by reason of extreme provocation, the state must disprove it. c) if the accused's defence is lack of criminal capacity due to mental illness or mental defect, the accused must prove it. d) all of the above. SECTION 2: Ms T Winchester [30 MARKS] THIS SECTION IS COMPULSORY QUESTION ONE
(15 MARKS)
Joe Soap is accused of murdering Thomas Mkhize after an altercation at a local Pietermaritzburg Bar. An eye-witness has stated that he saw Joe and Thomas arguing and a scuffle broke out in which he saw Joe stab Thomas with a knife 5 times. You are an attorney and Joe Soap approaches you and requests that you represent him, however he has little to no money to pay you for your services. a) Describe in detail the problems with the legal profession and access to justice in South Africa today and what attempts have been made to rectify this. (8 marks) b) As an attorney, describe the options that Joe Soap could use to engage some form of legal representation. (7 marks)
PAGE 10 ________________________________________________________________________ QUESTION TWO Distinguish between the following: 2.1 a state advocate and prosecutor 2.2 a state legal advisor and a private practicing attorney. 2.3 the public protector and the public defender. 2.4 a conveyancer and a notary (2 marks) (2 marks) (2 marks) (2 marks) (8 MARKS)
QUESTION THREE:
(7 MARKS)
Joe Soap approaches you and indicates that he has been accused of raping 15-year-old Mary. He indicates that he did commit the offence however he informs you that he is going to plead not guilty and has asked you to fabricate a defence (e.g. that he was watching a movie with his friends Tom, Dick & Harry at the time the rape was committed). 3.1 Discuss whether you may accept the instruction and act on Joes behalf? (2 marks) 3.2 Discuss what the ethics of the Legal Profession are and why they are of importance in the profession? (5 marks)
PAGE 11 ________________________________________________________________________ SECTION 3: Ms S Alli [20 marks] 3.1 Question One -True or False (10 Marks) 1) Whilst there is a restriction as to the number of members of a close corporation, there is no restriction on the number of employees of the close corporation. 2) A company can be a member of a close corporation but a close corporation cannot be a member of a company. 3) Incorporation of a Company merely requires the registration of a single document known as the founding statement. 4) A member of a close corporation who breaches a duty arising from his fiduciary relationship is not liable to the corporation; he is liable to the other members. 5) A member will be liable for a breach of the duty of care and skill in carrying on the business of the corporation only if this has resulted in a loss for the corporation. 6) South African law appears to have adopted the entity theory of partnership as opposed to the aggregate theory. 7) A partnership may be terminated by mutual agreement between the partners. 8) A partnership is a contractual association of person and has no existence in law independent of its partners. 9) Partnerships are regulated by Partnerships Act. 10) The rights and duties of Partnerships are the rights and duties of the partners jointly. 3.2 Question Two- Short answer questions (10 marks) 3.2.1) A, B, C, & D begin a law firm. Their partnership contract is silent as to the mode of division of profits. They approach you for advice after 2 months as they have a net profit of R20 000 which they wish to divide. Advice them if: (a) A and D each contribute R20 000, B R10 000 and C R50 000 (ie R100 000 in total). (3) (b) It cannot be determined in which proportion A, B, C, D respectively contributed to the partnership. (2)
PAGE 12 ________________________________________________________________________ 3.2.2) In his will, A stipulates that after his death, his 3 sons, B, C & D, must operate the business as a partnership. Can a partnership between heirs be brought about by a testator? (3) 3.2.3) At a pool tournament 15 players decide to form an association to promote pool in their area. It is decided that each person will contribute R3000 to a communal fund, the proceeds of which will be used to launch activities of the association. Can this association be a partnership? Give reasons for your answer. (2)
SECTION 4: Ms A Strode [20 marks] Mr Brown a first-year law student is accused of raping one of his fellow classmates following an after-party to celebrate the end of exams. Five days after the alleged rape the alleged victim uses s 30 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007 to apply to a magistrate for an order requiring Mr Brown to be tested for HIV and to have the results disclosed to her. Mr Brown strenuously denies the rape and argues that the sex was consensual. He approaches the Campus Law Clinic for advice. As a candidate attorney in the clinic, advise Mr Brown on: (i) whether s 30 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act is a justifiable limitation of his rights to bodily integrity and to be regarded as innocent until proven guilty? (ii) the possibility of his bringing a class action on behalf of other alleged accused?
PAGE 13 ________________________________________________________________________ SECTION 5: Ms M Mamashela [20 marks]
5.1
(a) State three stages through which marriage went from before the tenth century AD to the time it was introduced into the Cape of Good Hope in 1652. (3) (b) In which stage/s did personal and property rights of married women improve and how? Discuss. (7) [10 marks]
5.2
Which of the following statements are correct? Select either option a, b, c, d or e
i. Before the commencement of the Matrimonial Property Act 88 of 1984, the husband did not have the marital power in all marriages in community of property and consequently did not administer the joint estate in all such marriages. ii.The rule that a woman who was married in community of property including the husbands marital power could not enter into a binding contract or other legal transactions was not subject to any exceptions. iii. Where a couple was married in community of property including the marital power, if the husband was unable to give consent or unreasonably withheld it, the court could not grant the wife permission to conclude a contract or perform other juristic acts. a) Statement i only b) Statement ii only c) Statement iii only d) Statement i, ii and iii e) None of the above (2 marks)
PAGE 14 ________________________________________________________________________ 5.3 i. ii. iii. (a) (b) (c) (d) (e) 5.4 Which of the following statements are correct? Select either a, b, c, d or e According to Section 1 of the Matrimonial Affairs Act 37 of 1953, the husband could not alienate his wifes immovable property without her written permission. The General Law Fourth Amendment Act 132 of 1993 did not abolish the marital power of the husband over his wifes person and property in Black marriages. The Matrimonial Property Act 88 of 1984 retained the marital power in all marriages in South Africa. Statement i only Statement ii only Statement iii only Statement i, ii and iii None of the above
(2 marks)
Which of the following statements are correct? Select either a, b, c, d, or e
i. The law allowed a wife who was subject to her husbands marital power to purchase household necessaries in a reasonable manner without her husbands permission provided they were married and there was a joint household. ii. Section 2 of The Matrimonial Affairs Act 37 of 1953 enabled the wife married in community of property to keep her salary, compensation for personal injuries and savings in a bank or building society. iii. A woman who is married out of community of property excluding the husbands marital power does not have full legal capacity. (a) Statement i only (b) Statement ii only (c) Statement i and ii (d) Statement i, ii and iii (e) None of the above (2 marks)
PAGE 15 ________________________________________________________________________ 5.5 Which of the following statements are correct? Select a, b, c, d, and e i. The Age of Majority Act 57 of 1972 gave a married woman financial security in that it allowed her to share in her husbands pension on divorce. ii. The Domicile Act 3 of 1992 prohibited the wife to choose her own domicile. It provided that her domicile must follow that of her husband during and after marriage. iii. The Child Care Act 74 of 1983, granted the wife and husband equal guardianship and custody rights over their legitimate children. (a) Statement i only (b) Statement ii only (c) Statement iii only (d) None of the above (e) Statement i and ii (1 mark) 5.6 Which of the following statements are correct? Select a, b, c, d, and e i. The effect of the abolition of the marital power was to do away with the restrictions which the marital power placed on the capacity of a wife to contract and to litigate. ii. Section 14 of the Matrimonial Property Act 88 of 1984 introduced the principle of equality between the husband and wife by allowing them to manage the joint estate jointly. iii. According to the same section, the wife may dispose of the assets of the joint estate, and contract debts which lie against the joint estate on her own without consulting her husband. (a) Statement i only (b) Statement ii only (c) Statement iii only (d) Statement i and ii (e) Statement ii and iii (1 mark)
PAGE 16 ________________________________________________________________________ 5.7 Which of the following statements are correct? Select a, b, c, d, and e i. A matrimonial property regime refers to the rules governing a marriage which could be either in or out of community of property with accrual. ii. An antenuptial contract is an agreement which a couple that plans to marry may enter into, after the marriage, in order to change the consequences of a marriage in community of property by excluding some of the common or statutory law consequences of a marriage. iii. The accrual system means that the spouse whose estate shows the smaller accrual or no accrual at all has a claim, on dissolution of the marriage by divorce or death, to share in the accrual of the spouse whose estate shows the greater increase. (a) Statement i only (b) Statement ii and iii (c) Statement i and ii (d) All the above statements (e) Statement i and iii (1 mark) 5.8 Which of the following statements are correct? Select a, b, c, or d
i. The husbands marital power came to an end at the death of all the couples children. ii.The marital power embraced four elements namely, the husbands power as the head of the family, the husbands power over his wifes property and person and the husbands power over his brothers children. iii. A woman who was married in community of property including the marital power could carry on a public trade and perform valid juristic acts in the course of her business. The contracts she concluded were binding on the joint estate. (a) Statement i only (b) Statement ii only (c) Statement iii only (d)All the above statements (1 mark)

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UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: NOVEMBER 2010 SUBJECT, COURSE AND CODE: FOUNDATIONS OF SA LAW/ ASPECTS OF SA LAW (LAWS1FL)

PAGE 13 ________________________________________________________________________ SECTION 5: Ms M Mamashela [20 marks]

Which of the following statements are correct? Select either option a, b, c, d or e

Which of the following statements are correct? Select either a, b, c, d, or e

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