BWR 320: STUDY UNIT 1

26 JULY 2024: KINDS OF EVIDENCE LECTURE SERIES

- Minister of Justice not yet promulgated the regulations necessary to give content to this
requirement

- 2 YEARS - Articles of Clerkship re Practical Vocational Training

- includes x4 competency-based examinations
- Practical Vocational Training (PVT) weeks prior to examinations in preparation therefore

- 1 YEARArticles of Clerkship re Practical VocationalTraining

- includes x4 competency-based examinations

- 6 MONTHS Enterprises School for Legal Practice presented by the Faculty of Law, University
of Pretoria Legal Education & Development (LEAD) Practical Vocational Training Course
presented by the University of South Africa (UN/SA)

- You do not need to be registered for your articles of clerkship to write the x4 competency-based
examinations. Eligible to write post 6 months course.

- AND Legal Practice Management Course

- For Candidate Legal Practitioners who intend to practise as attorneys or advocate (Attorney's
Brief / Trust Account)

- S32 CONVERSION Admitted Attorneys can apply to be admitted as an Advocate provided you
have right of appearance in C, attend a specialized advocacy training course & certificate of
good standing

PRETORIA/JOHANNESBURG / CAPE ETC, SOCIETY OF

ADVOCATES

Complete Application Form by July 2025

Pupillage Entrance Exam & InterviewTraining Fee
Pupil Mentorship 08h00 to 17h00 ongoing matter; weekly training exercises; advocacy training
preparation & study
1 Year 15 January - 31 December
LPC proposed minimum remuneration for pupils

- Refer to Admission of Advocates Act 74 of 1964 (now repealed) note NBEB

- Examinations During pupillage, you are expected to be admitted as a legal practitioner and enrolled
as an advocate.
31 JULY 2024

COMBINED SUMMONS

- Annexure "A" (regulation 2 of the mediation of certain divorce matters act, 1990) duly
commissioned by deponent being Plaintiff in Divorce Action
Issued 12 March 2024
- FORM 2C (https://www.justice.gov.za/forms/MCR/1941-form02C.pdf)

- CS is issued by Registrar by allocating a case no.; opening court file; date stamping every
page; signing CS; placing x1 Copy of CS on court file on dote of issuing

- SHERIFF'S OFFICE ( https://sheriffs.org.za/)

Served 18 March 2024

- Plaintiff delivers Original CS & x1 Copy to Sheriff for personal service on Defendant. Sheriff
uses Original to explain Copy.

NOTICE OF INTENTION TO DEFEND - 10 COURT DAYS

KINDLY TAKE NOTICE

Served 27 March 2024

- that the Defendant hereby gives notice of her intention to defend this action

KINDLY TAKE FURTHER NOTICE

- that the Defendant hereby appoints the NAME OF LAW FIRM as her attorneys of record and
provides the below address for service of all notices, pleadings and documents in this action.

KINDLY TAKE FURTHER NOTICE

- that the Defendant is willing to accept service of all notices, pleadings and documents in this
action via electronic mail at EMAIL ADDRESS
NOTICE BAR

PLEASE TAKE NOTICE

Plaintiff is authorized to served NB on 21st
court day

- that the Defendant's dies induciae - being 20 court days - for Date of Service being 30 April
service of the Defendant's Plea and Counterclaim lapsed on 29 April 2024.

- The 2024 Defendant is hereby called upon to serve the Defendant's Plea and Counterclaim
within 5 court days from date of service hereof, being 8 May 2024, falling which, the
Defendant will be ipso facto (automatically) barred from doing so.

PLEASE TAKE FURTHER NOTICE

- that upon expiring of the 5-court day period, the Plaintiff will be authorized to approach the
above Honourable Court without further notice to the Defendant re court date on the
unopposed divorce roll.

ANNEXURE B

- Annexure B is not limited to divorce actions re referral to family advocate and it is not
subject to commissioning.
Served on Plaintiff on date of
service of Plea & CC and should
be delivered to family Advocates
Office
- The Defendant (D) will serve Annexure "B" with attached Filing Notice - Served 7 May 2024

- acknowledgement of receipt - on date of service of his Plea and Counterclaim (CC) where
there is a dispute re the best interests of the minor child subject to the divorce proceedings -
i.e. the (D) allocation of parental responsibilities and rights in his CC differs from the (P)
allocation in her particulars of claim.

Date of signature being 10 May 2024 & 14

May 2024 respectively
DEED OF SETTLEMENT Witnesses have no bearing the contents of
the Deed of Settlement but verify signature
of plaintiff or defendant on date of signature

- We will deliver CS & Original Dos to family Advocate (A) for review prior to set down on
unopposed divorce roll.
- if FA agrees that parental responsibilities and rights provisions is in child’s best interest, they
will date stamp, sign and write noted on the front page of original Dos.
 - Plaintiff & Defendant initial the bottom right corner of every page
- Plaintiff & Defendant date & sign last page
- Plaintiff & Defendant sign in presence of 2 competent witnesses (x2 per party)
- Witnesses initial bottom right corner of every page
- Witnesses sign in full on last page, print their name & surname and provide their contact
details

NOTICE OF WITHDRAWAL OF DEFENCE, PLEA &

COUNTERCLAIM

Served 14 May 2024: add other note

KINDLY TAKE NOTICE

- that the Defendant hereby withdraws his defence, plea and counterclaim duly filed in the above
Honourable Court, as the matter has been settled.

FURTHER KINDLY NOTE

- that the Plaintiff shall approach the above Honourable Court, on an uncontested basis, to
obtain a Final Decree of Divorce, incorporating the Deed of Settlement, as entered into by the
parties on 10 May 2024 and 14 May 2024 respectively.

MRS EVIDENCE AGREED TO TAKE THE OATH AND UNDERSTANDS THAT SHE
CAN BE CHARGED WITH PERJURY IF UNTRUTHFUL IN THE WITNESS BOX. NOTE
THAT AN AFFIRMATION TO TELL THE TRUTH IS AN ALTERNATIVE TO THE OATH
AND HAS THE SAME LEGAL CONSEQUENCES RE PERJURY. S41 CPEA_ A
WITNESS MAY TESTIFY WITHOUT TAKING THE OATH / AFFIRMATION. HERE, THE
PRESIDING OFFICER MUST ADMONISH THE WITNESS TO SPEAK THE TRUTH
FALLING WHICH WITNESS IS SUBJECT TO PERJURY.

- Discuss fully the admissibility of the Original Marriage Certificate in the Case Study.
- Discuss fully the admissibility of the Deed of Settlement in the Case Study.
- A discussion of Criminal Cases read with the Criminal Procedure Act will follow.

LEADING PLAINTIFF IN EVIDENCE AT TRIAL

OPENING ADDRESS IS RESERVED FOR PLAINTIFF

- Your Worship / My Lord / My Lady, I beg leave to approach with the trial bundle to be marked
Exhibit "A* Deliver your opening address in one paragraph _ in-lecture e.g.
PLAINTIFF EXAMINATION IN CHIEF

- Your Worship / My Lord/ My Lady, I beg leave to call my first witness

- WHAT / WHEN / WHY / WHO / WHERE / HOW short questions incorporating pre-trial minutes
re agreement on points in issue Plaintiff MUST establish a prima facie case by leading a
witness in evidence, chronologically.

- The witness places the facts on the record through their testimony e.g. Please turn to page 12
of the court bundle. Witness will state I am there. Please identify the document ... Who is the
deponent of the document? Is that your signature? When did you commission the ... Where
did you commission the ... etc.

- Leading questions which suggest the answer or assumes the existence of certain facts which
may be in issue is reserved for cross. examination. My Lady, I object to this line of
questioning. Judge will enquire further explanation and then rule on the objection - i.e. upheld
or sustained.

- SV BAILEY 2007 (2) SACR 1 (C) AT (25) = trial judge has discretion to permit leading
questions in the interests of justice

- GR | a party may not cross-examine his own witness unless the witness has been declared by
the court to be a hostile witness

- If witness is not declared hostile, party can call other witnesses to discredit / contradict the
witness's testimony

DEFENDANT CROSS-EXAMINATION | fundamental procedural right which is subject to witness

being sworn in

- CHALLENGE TRUTH & ACCURACY through qualifications or further explanations.

- Opposing version must be PUT TO the witness so that they have an opportunity to comment on
it (to the extent that they are able to comment on it). The Defendant will say that ...

- Here, you may get answers from the witness which you do not want / do not anticipate but the
presiding officer needs to hear the witness's response to Defendant's version

- S V MOTHABANE AND OTHERS 1995 (2) SACR 528 (B) whether the opposing party was
given a full opportunity to test the evidence of the witness

- The scope of cross-examination is not restricted to matters covered in examination in chief

- DO NOT disguise questions as statements of fact - questions should be around facts in issue or
facts relevant to the issue

- Create reasonable doubt by leading the witness in cross-examination

- Textbook 18 7 5 1 -2 8 18 7 5 3 civil vs criminal process re inadmissible evidence

- DISTILLERS KORPORASIE (SA) BPK V KOTZE 1956 (1) SA 357 (A) AT 361H

- commission v certification = going to be tested on

PLAINTIFF RE-EXAMINATION (OPTIONAL)

 1. to clear up any point or misunderstanding which might have occurred during cross-examination

2. to correct wrong impressions or false perceptions which might have been created in the course
of cross-examination

3. to give the witness a fair opportunity to explain answers given by him under cross-examination
which, if unexplained, may create a wrong impression or be used to arrive at false deductions

4. to put before the court the full picture and context of facts elicited during cross-examination

5. to correct patent mistakes made under cross-examination

CLOSE OF PLAINTIFF'S CASE….. WE HEREBY CLOSE THE PLAINTIFF'S CASE

- Defendant will then APPLY (if relevant) for absolution from the instance alleging that a prima
facie case
= was not made out and argue that the evidence read into the record would lead the
honourable court,
= in applying its mind reasonably to the evidence adduced, in a judgment that could / might
be in favour of the Plaintiff.

- Plaintiff will attack their weakest point in opposing the application.

= Here, Plaintiff will plead that a prima facie case was established, worthy of judgment

- The test for absolution from the instance is set out in Gordon Lloyd Page & Associates v
Rivera and Another 2001 (1) (SCA) at 92E-93A as formulated in Claude Neon Lights (SA)
Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H

MCR 23 | WHAT

- MCR 23(1)(a) DOCUMENTS & TYPE RECORDINGS

- Documents in the party's possession or under their control or previously been in party's
possession / under party's control

- Carpede v Choene NO 1986 (3) SA 445 (0): a party must discover only documents that
either directly or indirectly damage a party's own case or advance the case of the opposing
party: "documents that intend merely to advance the case of the party making the discovery
or to damage the case of the opposing party need not be discovered.

MCR 23(2)(c) list the documents which need not be discovered in schedule 1 or 2

1. Statements of witnesses taken for purposes of the proceedings (who/what they will say)
2. Communications btw attorney & client
3. Communications btw attorney & advocate
4. Pleadings , affidavits, & notices in action
5. Privileged documents must be listed in discovery affidavit BUT need not be handed over for
inspection
MCR 23 | WHEN
GENERAL RULE - after close of pleadings (this contestatio)

- SERVE NOTICE REQUESTING DISCOVERING AFFIDAVIT within 20 COURT DAYS

of SERVICE OF NOTICE

- DISCOVERY AFFIDAVIT lists documents and tape recordings in accordance with MCR
Form 13 of Annexure 1 of the Magistrates* Court Rules

MCR 23 | HOW

- DISCOVERY AFFIDAVIT SCHEDULE 1 - lists all documents and tape recordings

- CHRONOLOGICALLY in party's or agents POSSESSION. Use sub-headings re categories

- PART 1 - listed with pe objection to produce as original / copy

- PART 9 - listed with valid objection to produce as original or copy

- Includes NOT LIMITED

1. to legal privilege;
2. witness statements;
3. settlement,
4. martial privilege;
5. state or public privilege

- DISCOVERY AFFIDAVIT SCHEDULE & must separately specify all documents and tape
recordings which party or agent HAD, but no longer has, IN ITS POSSESSION AT THE
DATE OF AFFIDAVIT as original / copy