Law for Commercial Forensic Practitioners: NOTES
A. Criminal Law
1. Common law crimes
FRAUD
Source
Snyman - Fraud and Related Crimes: Chapter XIX (P) – pg 461-474
Burchell – Fraud: Chapter 60(P) – pg 742-753
Definition
unlawful and intentional making of a misrepresentation which causes actual
prejudice, or which is potentially prejudicial to another.
Elements of fraud
(a) a misrepresentation;
- spoken, written or conduct other than writing/speech eg a nod of the head
signifying consent
- Express or implied
-commissio (positive act) or omissio (omission)
-false promise about the future
-misrepresentation to a computer or machine
(b) prejudice or potential prejudice;
- Actual vs potential (bringing some form of harm to another)
- potential
= misrepresentation involved some risk of prejudice (one may still be convicted
on potential)
= likely to prejudice - there should be a possibility to prejudice not probability can be not will be caused
= the possibility must be a reasonable possibility.
= prejudice not only to a representee, it can be to a 3rd party, state or
community.
- proprietary prejudice : if it has to do with person’s property/material
possessions - if it consists of money/something which can be converted into
money.
- Non-proprietary prejudice sufficient
*examples:
> producing a forged driver’s licence to a prosecutor when charged with a
traffic offence;
> writing an examination on behalf of another person, thereby misrepresenting
to the examiners the examination candidate’s identity
> entering into an agreement which Y would not have entered into if there had
been no fraudulent misrepresentation
> obtaining a privilege, exemption or permit to which the person requesting it is
not entitled but endeavours to obtain by way of fraudulent misrepresentation
>making false entries in a register reflecting sale of liquor – prejudices the state
in its control of sale of liquor
- Requirement of causation superfluous - Fraud may be committed even though
there is no causal link, provided there is potential prejudice.
(c) unlawfulness and
- Compulsion or obeying of orders may possibly be grounds of justification.
(d) intention.
- intention to deceive = intention to make somebody believe that something
which is in fact false, is true. This is the intention relating to the misrepresentation,
- intention to defraud = intention to induce somebody to embark on a course of action
prejudicial to herself because of the misrepresentation. This is the intention relating to
both the misrepresentation and the prejudice.
- intention to defraud includes the intention to deceive
Attempt - there can be no such thing as attempted fraud, since even if a representation is
not believed or acted upon potential prejudice is nevertheless present and the fraud is
therefore complete.
THEFT
Source
Definition
Elements of theft
Snyman – Crimes relating to appropriation of property: Theft - Chapter XVIII
(A)
Burchell – Theft: Chapter 56 (P) – pg 689-703
A person commits theft if he unlawfully and intentionally appropriates movable,
corporeal property which
(a) belongs to, and is in the possession of, another (the removal of property)
(b) belongs to another but is in the perpetrator’s own possession (embezzlement); or
(c) belongs to the perpetrator but is in another’s possession and such other person has a
right to possess it which legally prevails against the perpetrator’s own right of possession
(unlawful arrogation of the possession of a thing)
provided that the intention to appropriate the property includes an intention
permanently to deprive the person entitled to the possession of the property,
of such property.1
(a) an act of appropriation,
Consists of 2 components
a) Negative – X deprives the lawful owner or possessor of his property; and
b) Positive - himself exercises the rights of an owner in respect of the property.
Reference case law – Tau and Mzandi
(b) in respect of a certain type of property,
To qualify as property capable of being stolen, the property must comply with the
following requirements:
a) Movable
b) Corporeal – material objects
c) In commercio – available in commerce, that is capable of being sold, exchanged
or pledged, or generally of being privately owned.
Not part of commercial dealings and therefore not susceptible to theft
 Res communes – property belonging to everyone eg air, ocean water
 Res derelictae - property abandoned by its owners with the intention
of ridding themselves of it.
 Res nullius - property belonging to nobody although it can be the
subject of private ownership, such as wild animals or birds.
d) Belong to someone else
Case reference for corporeal: Harper, Mintoor, Ndebele. The judgement in Mintoor is
preferred
(c) which takes place unlawfully and
- where there is consent the appropriation is not unlawful.
(d) intentionally (including an intention to appropriate).
a. the intention (and more particularly X’s knowledge) must relate to the act, the
definitional elements of the crime as well as the unlawfulness.
In Boesak it was established that intent is present where a person
i.
intentionally effects an appropriation
ii.
intending to deprive the owner permanently of his property or control
over his property.
iii.
knowing that the property is capable of being stolen, and
iv.
knowing that he is acting unlawfully in taking it
b. Intention in respect of the act, ie intention to appropriate
 intention to appropriate encompasses both
 the intention of depriving Y of his control over the property
(negative component) and

c.
d.
e.
f.
the intention of exercising the rights of an owner over the
property himself, instead of Y (positive component).
Intention permanently to deprive the owner
Overlapping of theft and injury to property
No intention to derive a benefit required.
Intention in respect of unlawfulness
Different forms of
theft




the removal of property
embezzlement
unlawful arrogation of the possession of a thing
Theft of credit, including the unlawful appropriation of trust funds
 Theft of credit which is not entrusted to somebody
 Theft of credit entrusted to somebody
 Unauthorised appropriation of cash entrusted to somebody
 Unauthorised appropriation of credit entrusted to X
There are 2 possible defences if X applies money or credit entrusted
to him for a different purpose than agreed
a. the existence of a liquid fund
b. money received as part of a debtor-creditor relationship
 The dishonest accounting of trust funds, or failure to account for such
funds
 Appropriation of overpayments
 The unlawful “temporary” use of money
Theft is a
continuing crime;
no accessories
after the fact

No difference
between
perpetrators and
accomplices in
theft

The rule that theft is a continuing crime means that the theft continues to be
committed as long as the stolen property remains in the possession of the thief
or somebody who has participated in the theft or somebody who acts on behalf
of such a person.
The rule has 2 important effects
 is procedural in nature:
 our law draws no distinction between perpetrators and accessories
after the fact
The mere rendering of assistance to or facilitation of another’s act of
appropriation does not in itself constitute an act of appropriation however
persons who assist the thief after the initial appropriation, but while the theft
continues, are guilty not merely as accessories but of theft itself

2. STATUTORY CRIMES
Corruption
Source
-
Definition
Chapter XIII [Crimes against Public Welfare] on Corruption in Snyman CR
Criminal Law 7th ed (LexisNexis Butterworths Durban 2021) 355 – 386.
Chapter 71 [Bribery and Corruption] on Corruption in Burchell J Principles of
Criminal Law 5th ed (Juta Claremont 2016) 804 – 809.
S v Scholtz and Others [2018] (2) SACR 526 (SCA). Case law
Prevention and Combating of Corrupt Activities Act 12 of 2004 (PCCA)
Section 3 of PCCA of 2004
Any person who, directly or indirectly –
(a) accepts or agrees or offers to accept* any gratification* from any other
person, whether for the benefit of himself or herself or for the benefit
of another person; or
(b) gives* or agrees or offers to give to any other person any gratification*,
whether for the benefit of that other person or for the benefit
of another person, in order to act, personally or by influencing another person so to act,
in a manner –
(i) that amounts to the –
(aa) illegal, dishonest, unauthorised, incomplete, or biased; or
Simplified
definition
Corruption by giver
and corruption by
recipient
corruption
committed by the
recipient:
Elements of
corruption
(bb) misuse or selling of information or material acquired in the course of the, exercise,
carrying out or performance of any powers, duties or functions arising out of a
constitutional, statutory, contractual or any other legal obligation;
(ii) that amounts to –
(aa) the abuse of a position of authority;
(bb) a breach of trust; or
(cc) the violation of a legal duty or a set of rules,
(iii) designed to achieve an unjustified result; or
(iv) that amounts to any other unauthorised or improper inducement* to do or not to do
anything,
is guilty of the offence of corruption.
“Anybody who
(a) accepts any gratification from anybody else, or
(b) gives any gratification to anybody else
in order to influence the receiver to conduct herself in a way which amounts to the
unlawful exercise of any duties, commits corruption.”
Corruption is committed if one party gives a gratification (benefit) to another party and
the latter accepts it as inducement to act in a certain way. Both parties – the giver as well
as the recipient – commit corruption.
 corruption by a giver refers to the conduct of the giver (X)
 corruption committed by the recipient refers to the conduct of the party who
accepts the gratification (Y)
Active corruption refers to the conduct whereby X gives a gratification to Y, and
Passive corruption to the conduct of the recipient (Y) of the gratification from X.
“Gives” includes an agreement by X to give the gratification to Y, or the offering by X
to give it to Y.
“accepts” in turn includes an agreement by Y to accept the gratification or the offering
by Y to accept it
(i) the acceptance by Y (the act);
- agreement and offer satisfies the acceptance requirement. One does not have to actually
accept to be guilty of corruption that offer, or agreement is enough ground to be charged
for corruption.
- the following are not grounds for defence of not having committed fraud
 The fact that Y does not accept the gratification “directly”, but only
“indirectly”.
 The fact that Y did not in actual fact subsequently perform the act which X had
induced her to perform.
 The fact that the corrupt activity between X and Y was unsuccessful.
 The fact that Y accepts the gratification but that she, in actual fact, does not
have the power or right to do what X wishes her to do.
 The fact that what X requested Y to do accorded with Y’s duties,
(ii) of a gratification
- Is a reward given voluntarily for some service or benefit rendered, without
being requested so to do, either expressly or by implication.
- Gratification has a broad meaning in terms of the act
(iii) in order to act in a certain way (the inducement)
- Y accepts the gratification with a certain aim or motive to act in a certain
manner
- The aims are stated in the Act
(iv) unlawfulness
- the act should be unjustified
- An act which would otherwise amount to corruption, would not be unlawful if
X or Y acted under compulsion. X or Y would then be entitled to rely on
necessity as a ground of justification.
- A person acting as a trap does not act unlawfully if she agrees to receive a
gratification from another person in order to trap the latter person in the act of
committing (active) corruption
(v) intention.
- intention always includes a certain knowledge, namely knowledge of the nature
of the act, the presence of the definitional elements and the unlawfulness.
- Section 2(1) provides that for the purposes of the Act a person is regarded as
having knowledge of a fact, not only if she has actual knowledge of the fact, but
also if the court is satisfied that she believes that there is a reasonable possibility
of the existence of that fact and she fails to obtain information to confirm the
existence of the fact.
Accomplice liability
and accessories
after the fact
Attempt, conspiracy
and inducing
Punishment
General crime of
corruption:
corruption by the
giver
Corruption relating
to specific persons
or events
Section 20 creates a separate crime punishing accomplices and accessories after the fact
in respect of corruption.
 “Any person who, knowing that property . . . forms part of any gratification
which is the subject of an offence [in terms of certain sections of the Act] (a)
enters into . . . any dealing in relation to such property . . . or (b) uses . . . or
holds, receives or conceals such property . . . is guilty of an offence”
Section 21 provides that any person who (a) attempts, (b) conspires or (c) aids, abets,
induces, incites, instigates, instructs, commands, counsels or procures another person to
commit an offence in terms of the Act, is guilty of an offence.
According to Riotous Assemblies Act 17 of 1956
A person convicted of the general crime of corruption is liable to the following
sentences:
 If sentenced by a High Court
 fine or imprisonment for life.
 section 1(1)(b) of the Adjustment of Fines Act 101 of 1991, (AFA)
imprisonment as well as a fine may be imposed
 If sentenced by a Regional Court
 an unlimited fine or imprisonment for a period not exceeding 18 years.
 If the provisions of section 1(1)(a) of the AFA taken into
consideration, the maximum fine that may be imposed by a Regional
Court is 18 × R20 000 = R360 000. In terms of the provisions of
section 1(1)(b) AFA a fine as well as a sentence of imprisonment may
be imposed
 If sentenced by a Magistrate’s Court
 an unlimited fine or imprisonment for a period not exceeding five
years.
 If AFA s1(1)(a) the maximum fine that may be imposed by a
Magistrate’s Court is 5 × R20 000 = R100 000. In terms of the
provisions of section 1(1)(b) of AFA, a fine as well as a sentence of
imprisonment may be imposed.
In addition to any fine which a court as mentioned above may impose, a court
may also impose a fine equal to five times the value of the gratification involved
in the crime.
Corruption by the giver is but a mirror image of corruption committed by the recipient.
Elements
(i) the giving by Y to X (the act);
(ii) of a gratification
(iii) in order to influence Y to act in a certain way (the inducement)
(iv) unlawfulness
(v) intention.
 Corruption in respect of public officers – section 4
 Corruption in respect of foreign public officials – section 5
 Corruption in respect of agents – section 6
 Corruption in respect of members of the legislative authority - Section 7
 Corruption in respect of judicial officers Section 8
 Corruption in respect of the prosecuting authority Section 9
 The receiving or offering of unauthorised gratification by a party to an
employment relationship Section 10
 Corruption in respect of witnesses Section 11
 Corruption in respect of contracts Section 12
Failure to report
corrupt conduct
S v Scholtz and
Others [2018] (2)
SACR 526 (SCA).
Case law
 Corruption in respect of the granting of tenders Section 13
 Corruption in respect of auctions Section 14
 Corruption in respect of sporting events Section 15
 Corruption in respect of gambling or games of chance Section 15
Section 34 of PCCA
 failure by a person in a position of authority who knows or ought reasonably to
have known that certain crimes created in the Act have been committed, to
report the commission of such crimes to a police officer is guilty of an offence.
 Subsection (4) gives a long list of persons who are regarded as people who hold
a position of authority. It includes any partner in a partnership and any person
who is responsible for the overall management and control of the business of an
employer.
- Mr John Block received 2 payments R228k and R500k which was held to be
corrupt gratification.
- It was argued on behalf of Mr Block that he could not be convicted of
-
-
-
Organised crimes
Source
corruption as he had received these sums after the contracts had been
concluded. This was rejected by the Supreme Court of Appeal.
As a recipient it did not matter that he actually received the
gratification after the lease contracts were concluded.
It was held that that there were no substantial and compelling
circumstances which justified a lesser sentence than the 15 years’
imprisonment which was in prescribed by the legislature for this
offence.
Mr Scholtz the businessman who was involved in the business of leasing
renovated offices to the state was charged the same with Mr Block although he
claimed to not have known the day-to-day operation of the business resulting in
the corrupt gratification payment to Block.
It was held that Mr Scholtz as a businessman was reasonably expected to have
had knowledge of his business payments and thus was charged for corruption
on those grounds.
b) Chapters 82 [The History of Organised Crime Legislation]
83[The Nature of Organised Crime]
84 [Racketeering under POCA]
86 [Money Laundering under Section 4 of POCA and Section 1 of FICA]
87 [Offence Relating to Proceeds of Unlawful Activities and Reporting Duties]
88 [Asset Forfeiture] on Organised Crime in Burchell J Principles of Criminal Law 5th
ed (Juta Claremont 2016) 889 – 907 and 911 – 947.
c) National Director of Public Prosecutions v Bobroff and Another [2020] (1) SACR 288
(GP).
d) ECTA S v Msomi [2020] (1) SACR 197 (ECG).
Definition
Organised crime is systematic criminal activity of a serious nature committed by a
structured group of individual or corporate body in order to obtain, secure or retain,
directly or indirectly, a financial or other benefit.
 There should some element of organised crime before application of POCA
 Racketeering and criminal gang activities are clearly linked to the concept of
pattern of criminal activity which in turn in based on the notion of structure and
continuity in criminal endeavour.
 Chapter 5 POCA – Criminal confiscation & Chapter 6 POCA - Civil forfeiture
relating to proceeds of crime.
 Civil forfeiture does not require prior criminal conviction as does the criminal
confiscation of assets.
RACKETEERING
means the planned, ongoing, continuous or repeated participation or
involvement in any offence referred to in Schedule I and includes at least two
offences referred to in Schedule 1, of which one of the offences occurred after
Definition
the commencement of this Act and the last offence occurred within 10 years
(excluding any period of imprisonment) after the commission of such prior
offence referred to in Schedule 1.
Offences


Penalties
Chapter 2 section 2(1) of POCA deals with offences relating to racketeering
activities
2 isolated acts of racketeering does not constitute a pattern and a person accused
of racketeering does not have to be actually convicted of each underlying
offence
Section 3 - Any person convicted of an offence referred to in section 2 (1) shall
be liable to a fine not exceeding R1 000 million, or to imprisonment for a period
up to imprisonment for life.
Constitutional
challenges to
racketeering
provisions in POCA



Vagueness
Retrospectivity
Double jeopardy splitting of charges/ duplication of convictions
MONEY LAUNDERING

means an activity which has or is likely to have the effect of concealing or
disguising the nature, source, location, disposition, or movement of the
proceeds of unlawful activities or any interest which anyone has in such
proceeds and includes any activity which constitutes an offence in terms of
section 64 of FICA or section 4, 5 or 6 of the POCA.
It is a process where dirty money is given an apparent cloak of respectability
and so hidden from the eyes of the authorities
Stages = Placement, Layering and Integration
Section 4 of POCA
and
Section 1 of FICA

Stages of cleaning
money and
offences resulting
from ML
Offences
-
The process of disguising the criminal origin of money could constitute one of a variety
of common-law or statutory offences.
 Fraud (common law offence)
 Corruption??
- Any person who knows or ought reasonably to have known that
property is or forms part of the proceeds of unlawful activities and
enters into any agreement or engages …. Or performs any other act in
connection with such property… which has or is likely to have the effect
of concealing or disguising … enabling any person who committed a ML
offence in or outside SA to avoid prosecution or to remove property ….
Shall be guilty of an offence
-
Assisting another to benefit from proceeds of unlawful activities.
Acquisition, possession or use of proceeds of unlawful activities.
Penalties
Any person convicted of an offence contemplated in section 4, 5 or 6 shall be
liable to a fine not exceeding R100 million, or to imprisonment for a period not
exceeding 30 years.
Offences Relating
to Proceeds of
Unlawful Activities
and reporting
duties
Section 5 of POCA - Assisting another to benefit from proceeds of unlawful activities
 Is designed to punish a person who acts in the role of an accomplice to another
 Restricts liability for assisting another person to specific instances namely when
a person engages in any arrangement or transaction whereby—

the retention or the control by or on behalf of the said other person of
the proceeds of unlawful activities is facilitated; or

the said proceeds of unlawful activities are used to make funds
available to the said other person or to acquire property on his or her
behalf or to benefit him or her in any other way
Section 6 of POCA- Acquisition, possession or use of proceeds of unlawful activities

criminalises the conduct of a person who acquires, uses or has possession of
property that is known or reasonably suspected to be part of unlawful activities.
Reporting duties of accountable institutions

Chapter 3 and 4 of FICA – contain the control measures for the sustaining of a
money laundering and terrorist financing activities prosecution.

Section 21 – obligation on accountable institutions to establish and verify the
identity of clients

Section 22 – to keep records of business relationships and transactions.
Failure to report suspicion regarding the proceeds of unlawful activities
ASSET FORFEITURE
Section 29 of FICA
- Asset forfeiture involves procedures, invoked by the state, for the compulsory
deprivation of the private property belonging to individuals (or corporations)
that is derived from or linked to unlawful activities.
- The objective of the forfeiture is to remove the profit from crime
POCA provides for two types of asset forfeiture: criminal confiscation and civil
forfeiture
CRIMINAL CONFISCATION
Restraint orders – s25 of POCA
 Does not have to be made i.e., the court has discretion.
 A provisional restraint order with immediate effect can be made and
can include a rule nisi
 May precede a confiscation order but does not have to do so and may
include provision for defendants reasonable living expenses and legal
expenses
 A restraint order can be issued in respect of assets outside South
Africa.
Confiscation orders – Chapter 5 of POCA
 Is a civil judgement for payment to the state of an amount of money
determined by the court and is made by the court in addition to
criminal sentence.
 The order is not for the confiscation of a specific object, but an order
for the payment of an amount of money to the state
 Criminal confiscation applies only to proceeds of crime and not to the
instrumentalities of crime.
 proceeds of crime are not confined to net proceeds, that is no
deductions are meant for expenses.
 Criminal confiscation is in personam and so only capable of being
executed against the property of the defendant, not against that of third
parties. The property confiscated must be linked in some way to the
offence for which the defendant is convicted.
Chapter 5 of POCA ensure that criminals cannot enjoy the fruits of their crimes.
Neither restraint orders no confiscation orders operator retrospectively
 The amount confiscated may not exceed the value that the defendant
has derived from the offences for which he or she has been convicted
or any criminal activity which the court finds to be sufficiently related
to the offences (s18) and
 “realisable property” includes the value of all affected gifts made by
the defendant (s20)
CIVIL FORFEITURE
 Proceeds for forfeiture are argued to be in rem (i.e., against the thing) rather
than in personam (against the person).
Elements
Preservation order (s38) POCA
a) Ex parte application and rule nisi
 Ex parte application - an application made without notice to the respondent. An
application brought by a litigant in which no notice (warning) of the application
is given to the other party.
 Rule nisi- is an order “to show cause”, meaning that the ruling is absolute
unless the party to whom it applies can show cause why it should not apply.
b) Instrumentality of offence and proceeds of unlawful activities
There must be reasonable grounds to believe that the property concerned is
i.
The instrumentality of an offence or
o According to case law it was held that the applicant for a preservation
order must establish a “connection or link between the alleged
unlawful activity and the property concerned” and that the property has
been used as a means to commit the offence.
o “concerned in the Commission of an offence” must be interpreted so
that the link between the crime committed and the property is
reasonably direct, and that the employment of the property must be
functional to the Commission of the crime.
o The inquiry is whether there is sufficiently close link between the
property and its criminal use and whether the property has a close
enough relationship to the actual Commission of the offense to render
it an instrumentality.
ii.
The proceeds of unlawful activities
o Defined as any property or any service, advantage, benefit or reward
which was derived, received or retained, directly or indirectly, in the
Republic or elsewhere, in connection with or as a result of any
unlawful activity carried on by any person, and includes any property
representing property so derived.
c)

Remaining provisions
Preservation orders must be published by means of notice to all interested
persons in the government Gazette. The order lasts for 90 days.
Forfeiture order s (50) POCA
 If the court finds on a balance of probabilities that the property is an
instrumentality of an offence or proceeds of unlawful activities, then it shall
grant a forfeiture order.
 In terms of section 52 certain property interests may be excluded from an order
incident circumstances. Section 52 is colloquially referred to as the “innocent
owner” provision.
 The proceeds of property forfeited are paid into a state fund called the criminal
asset recovery account. In terms of section 68 and 69 these assets can be
utilized to provide financial assistance to law enforcement agencies in
combating organized crime and other crimes and assistance to victims of crime.
Potential constitutional challenges to the confiscation and forfeiture provisions in
POCA
 Due process rights and the right to a fair trial unraveled.
 The objective of any asset forfeiture regime to demonstrate that the crime does
not pay.
 The objective is achieved by:
o Removing incentives to crime,
o deterring persons from using or allowing their property to be used in
crime
o eliminating or incapacitating some of the means by which crime may
be committed end
o advancing the needs of justice by depriving those involved in crime of
the property consent.
Arbitrary deprivation of property
Case Law
National Director of
Public Prosecutions v
Bobroff and Another
Case summary:
Prevention of Organised Crime Act 121 of 1998 – jurisdiction – power of high court to
make a forfeiture order in respect of property situated in a foreign country and belonging
to persons not presently resident in South Africa – s 19 of the International Co-
operation in Criminal Matters Act 75 of 1996 enabling effective order – proceeds of
unlawful activity committed in South Africa – what constitutes proceeds of unlawful
activity.
ECTA S V Msomi
[2020]
Insider trading
Sections 77, 78 and 82
The Financial
Markets Act 19 of
2012 and its
Regulations
77 – Definitions – insider, inside information and deal
78 – insider trading offence – what is and what is not
82 – liability resulting from insider trading
B. Criminal Process and Investigative Tools for Forensic Investigators
Investigative legal tools
Overview of investigative (legal) tools in the context of electronic evidence
(a) Chapter 15 [Cybercrime and the Investigation of Cybercrime] in Watney M “Cybercrime and
Source
the Investigation of Cybercrime” in Papadopoulos S and Snail S (eds) Cyberlaw@SA III (Van
Schaik Publishers Pretoria 2012) 333 – 351.
In the discussion of the laws governing criminal investigation of cybercrime, the following
overlapping issues will be addressed:
 The difference between criminal investigations conducted in a physical and an
electronic medium such as internet
o Crime committed in a physical medium
 Tangible in nature
 Main perpetrator is generally physically present during the
commission of the crime
 Crime predominantly committed and investigated within the border
of the country
 Law enforcement agencies conduct criminal investigation
 Traditional procedural approach to criminal investigation
o Crime committed in an electronic medium
 May be committed without the physical presence of the perpetrator
 Perpetrators can communicate online without ever meeting face-toface
 The crime can be committed against more than one victim
 Criminal investigations are conducted with the purpose of gathering
information that may serve as evidence of the crime
 Domestic laws of the country where the perpetrator commits the
crime and where the impact of the crime is experienced govern the
investigation
o Challenges in investigating cybercrime
 Countries need criminal and procedural laws that provide for
prevention, detection, investigation and prosecution of cybercrime
committed on internet
 Crimes may be committed outside the country’s borders and
originate from a country that does not have criminal and procedural
laws in place or that do not enforce these regulations
 Crime investigators must be in a position to act quickly when a crime
on the internet is detected or committed as the electronic trail go
cold.
 Traditional procedural reactive approach to criminal investigation is
not successful
 Law enforcement agency cannot effectively investigate a crime on
the internet without the direct or indirect assistance of a third party
namely internet service provider (ISP)



Compliance with legislation within an electronic medium is not easy
to enforce
Investigation may be hampered by the use of technology
ICT is ever evolving

Understanding the meaning of the term “cybercrime” and the effect of globalisation on
crime
 The evolution of the different phases of legal regulation in addressing cybercrime and
criminal investigations
o No legal regulation of the internet
o Legal regulation of conduct
o Supplementing conduct regulation with laws providing for investigatory
methods aimed at accessing and gathering information – type of information,
surveillance methods
 The impact of the Council of Europe (CoE) convention in respect of cybercrime and
criminal investigation of cybercrime
 An overview of the South African law regulating cybercrime and criminal investigation
o ECTA Chapter 13 criminalise the following and include penalty
 Conduct that amounts to unauthorised access to information or
interception of information
 Modification of information
 Circumvention of security
 Denial or a distributed denial of service attack
 Computer related extortion
 Computer related fraud and forgery
o RICA
 Provides for the surveillance of direct and indirect communications
 Applicable to communication in physical and electronic medium
unlike ECTA which only governs electronic medium
 Provides collection of information by means of interception,
monitoring, data retention and decryption
The following are not governed by ECTA or RICA but are prohibited by either legislation or
common law and participation in these activities constitutes a crime and may result in
prosecution.
 Online gambling
 Cyberstalking
 Phishing
 Creation, distribution, and possession of child pornography
Criminal law provides for the criminalisation of various online activities.
Production and preservation
(a) Section 205 of the Criminal Procedure Act 51/1977 and its commentary in Kruger A (ed)
Source
Hiemstra’s Criminal Procedure (LexisNexis Butterworths Durban 2020).
Section 205
attempts to gather information which can assist in the investigation of an offence and
possibly the institution ofprosecution in respect of that offence. Someone who has information
regarding an offence but does not want togive it to the police can be forced, by the application of
this section, to furnish it under oath. Information given inthis manner is still not evidence.
Therefore, if the prosecution wants to use it at a criminal trial, it has to be offered
in the usual manner.
S v Miller and Others [2016] (1) SACR 251 (WCC).
Criminal (and civil) asset forfeiture
Chapter 88 [Asset Forfeiture] on Organised Crime in Burchell J Principles of Criminal
Source
Law 5th ed (Juta Claremont 2016) 924 – 947.
Case law
Refer to asset forfeiture above
Case law
National Director of Public Prosecutions v Botha NO and another [2020] (1) SACR 599
(CC).
There are, broadly speaking, two legal issues to be decided in this case. The first is whether a
court is required to apply a form of proportionality assessment to a forfeiture order under s
50(1)(b) of POCA in respect of proceeds of crime. This requires us to consider the scope of
s 25(1) of the Constitution and the correct interpretation of POCA. The second is how any
proportionality assessment is to be carried out.
Part II- Civil Law, Process & Investigative
tools for forensic Investigators
A - CIVIL LAW
Causes of action
Sourc Various causes of action as set out in Harms LTC Amler’s Precedent of Pleadings 9th ed (LexisNexis
Butterworths Durban 2018):
e
® Account and its debate 13 - 15;
 The object of a claim for an account and debate is to enable a claimant to establish them
indebtedness of the other party to the claimant. A typical claim is for delivery of an
account, a debate, and payment of the amount found to be due. A final order cannot issue
before debatement.
® Accountant and auditors 15 – 19;
 The scope of the mandate depends on the terms of the contract with the client. Terms may
be express, implied or tacit
® Agency 25 – 31;
 The natural incidents of a contract of mandate oblige the agent to fulfil the agreed
functions faithfully, honestly and with care and diligence and to account to the principal for
the actions taken.
 An agent has no locus standi (the right or capacity to bring an action or to
appear in a court.) to sue or be sued on the principal obligation between the
principal and the other party
® Close Corporations 81 – 84;
 The Close Corporations Act provides for the personal liability of members and, in certain
circumstances, for that of other persons
® Co-debtors 84;
 The liability of co­debtors may depend on a question of law (e.g. the liability of ex­partners)
or a question of fact (e.g. the terms of a contract). Accordingly, a claim against co­debtors
must state whether their liability is (a) joint or (b) joint and several.
® Companies 84 – 88;

® Confidential Information 93 – 95;
 The duty to protect or not to use confidential information may arise from agreement (such
as a restraint of trade) or from a general legal duty. In the former instance, the claim is
based on a breach of contract; in the latter, it is based on delict
 Confidential information may be protected by an interdict and breach of confide
ntial information may ground a claim for damages.
® Contract 101 – 126;
 Breach of contract
® Copyright 129 – 132;
 Design, unlawful competition
 governed by the Copyright Act
® Credit Agreements 134 – 141;
 Governed by national credit act (NCA)
® Damages: Delictual damages 143 – 147;


The purpose of a claim for damages is to compensate the victim in money terms for the
loss suffered.
A delict occurs when one party commits a wrong against another. The basic elements of
delict are conduct, wrongfulness, fault, causation and damage. As a starting point, it is
essential to realise that all five elements mentioned above must be present before a
person can be set to be delictually liable.
® Employment Contracts 183 – 186;
 Tacit terms
 Claim for wages
 Dismissal and repudiation
 Termination of employment
 Onus
 Pleading in the labour court
® Fraud 203 – 206;
 Onus, essentials, fraud by an agent, fraud in contract
 Exceptio doli generalis:
 Fraud and passing of ownership
® Misrepresentation: Innocent Misrepresentation 262 – 263;
 A party induced by an innocent misrepresentation to enter into a contract may rely on that
misrepresentation to avoid the contract and to claim restitution. The contract is not void.
The misrepresentation does not give rise to a claim for damages because it is not a delict
 In given circumstances, the contract may be void due to lack of consensus.
® Misrepresentation: Negligent Misrepresentation 263 – 265;
 A negligent misrepresentation in an extra­contractual context and a pre­contractual
negligent misrepresentation leading to a contract may both give rise to a claim for delictual
damages.
 False representation
 Wrongfulness
 Silence as misrepresentation
 Negligence
 Causation
 Relief
 Restitution
® Partnerships 286 – 289;
 A partnership is not a legal person.
 Liability
 Actio pro socio
 Anonymous partner = not liable for partnership debts
® Prescription: Acquisitive Prescription 303 – 304;

® Prescription: Extinctive Prescription 304 – 309;

® Restraint of trade 316 – 319;
 A party wishing to enforce a restraint­of­trade agreement need only allege and prove the
agreement and its breach by the defendant.
® Set-off 336 – 337;
 takes place when two parties (a) are mutually indebted to each other; (b) both debts are
liquidated and fully due.
 operates automatically and not because of a plea of set­off.
 Once set­off is established, the claim is deemed to have been extinguished (fully or in part)
retrospectively (ex tunc) from the moment mutuality of the debts arose.
® Spoliation 340 – 342;
 It is the destruction, alteration, or mutilation of evidence especially by a party for whom the
evidence is damaging.
 The plaintiff must allege and prove unlawful deprivation of possession by the defendant. In
this context 'unlawful' refers to dispossession without the plaintiff's consent or due legal
process

A spoliation order is a final order and, if the factual dispute is such that it cannot
be resolved in application proceedings, action proceedings may be indicated.
® Statutory Duty or Authority 346 – 348;
Depending on the circumstances and the interpretation of the relevant statute, breach of a
statutory duty may
(a) provide evidence of negligence in an action based on negligence;
(b) create a right of action for damages irrespective of negligence;
(c) create a right of action for damages resulting from negligent conduct; or
(d) be the element of wrongfulness necessary to found delictual liability.
® Unlawful Competition 366 – 367;
 Competitive trading is unlawful when it involves wrongful interference with another trader's
rights and is actionable under the lex Aquilia if it results in loss
® Vicarious Liability 370 – 372.
 An employer is liable for damage occasioned by delicts committed by an employee in the
course and scope of the employee's employment.
 The onus rests on the plaintiff to allege and prove in addition to the usual allegat
ions to establish delictual liability
 Independent contractors: A principal is normally not liable for the acts of an inde
pendent contractor
 General: A parent is not vicariously liable for the acts of a child.
 An operator of a casino has no duty to protect one customer from another.
The Liability of Directors; Reckless Trading
Source (a) Section 424 of the Companies Act 61 of 1973 and its commentary in Meskin PM (ed)
Henochsberg on the Companies Act 61 of 1973 5th ed (LexisNexis Butterworths Durban 1994).
(b) Sections 1, 22, 75 – 78, 162, 213 – 215 of the Companies Act 71/2008 and its
commentary in Meskin PM (ed) Henochsberg on the Companies Act 71 of 2008
(LexisNexis Butterworths Durban 2020).
Case
(c) Organisation Undoing Tax Abuse and Another v Duduzile Cynthia Myeni judgment delivered on
27 May 2020 in the High Court of South Africa, Gauteng Division, Pretoria.
(application for delinquency)
Companies Act
Section 424 – Liability of directors and others for fraudulent conduct of business
When it appears, that any business of the company was or is being carried on recklessly
or with intent to defraud creditors of the company or creditors of any other person or for
any fraudulent purpose, the Court may, declare that any person who was knowingly a
party to the carrying on of the business in the manner aforesaid, shall be personally
responsible, without any limitation of liability, for all or any of the debts or other
liabilities of the company as the Court may direct
Section 1 – Definitions
Section 22 – prohibits reckless trading of companies. This includes the carrying on of
business recklessly, with gross negligence, with intent to defraud any person or for a
fraudulent purpose
Section 75-78
 Director’s personal financial interests.
 Standards of director’s conduct
 Liability of directors and prescribed officers.
 Indemnification and directors’ insurance
Section 162 - Application to declare director delinquent or under probation
Section 213-215
 Breach of confidence
 False statements, reckless conduct and non-compliance
 Hindering administration of Act
B - Civil Process & Investigative tools
1. Overview: Civil process
(a) Rule 6 and 39 of the Uniform Rules of the High Court and its commentary in Van
Loggerenberg DE and Farlam BPJ (eds) Erasmus Superior Court Practice (JUTA Law
Landsdowne 2020).
Actions and applications
Rule 6-AApplications
 every application must be brought on notice of motion supported by an
affidvit as to the facts upon which the applicant relies for relief.
Where an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems fit with a view to ensurin
g a just and expeditious decision.
 Every application must comply with the provisions of rule 62
Rule 39-Trial
 Rule 39 lays down the procedure for the conduct of the trial.
 If, when a trial is called, the plaintiff appears and the defendant does not
appear, the plaintiff may prove his claim so far as the burden of proof lies upon
him and judgment shall be given accordingly, in so far as he has discharged such
burden. Provided that where the claim is for a debt or liquidated demand no
evidence shall be necessary unless the court otherwise orders.
 In civil proceedings a child is the judicial investigation of the claim and the
defense of litigants as disclosed in the summons and plea coma and for that
purpose, the hearing of such evidence is may be brought forward by the
parties, after which the parties or their legal representatives are heard in
arguments and the judgment of the court is given.

(a) Interdicts (A5.1); Final Interdict (A5.2); Special Interdict (A5.13); Interim Interdict (A5.6);
in Harms DR (ed) Civil Procedure in the Superior Courts (LexisNexis Butterworths Durban 2020).
Interdicts and Mareva injunctions
A5.1 – Introduction
 An interdict is an order of court enjoining a respondent to refrain from doing so
mething or ordering a respondent to do something
 prohibitory interdict - sought to prevent or stop a party from acting or acting in
a certain way
 mandatory interdict - sought to compel a party to act.
 it is more difficult to enforce a mandatory interdict than it is to enforce
a prohibitory interdict

Anyone can apply for a court interdict if they have been the victim of harassment,
intimidation, stalking, physical violence or damage to property. A court interdict is a court
order that restrains a person from doing a certain act or acts. The act or acts that are
prohibited are set out in the order.
A5.6 – Interim Interdict
 An interim interdict is a court order preserving or restoring the status quo pending the final
determination of the rights of the parties.
 It does not involve a final determination of these rights and does not affect their final
determination
 An interim interdict is always sought by way of application.
A5.2 Final Interdict
 An interdict is final if the court order is based upon a final determination of the

rights of the parties to the litigation.
The requirements for the right to claim a final interdict are:
o a clear right;
o an injury actually committed or reasonably apprehended; and
o the absence of similar protection by any other ordinary remedy
A5.13 – Special Interdict
 Constitutional cases
Anton Pillers and spoliation orders
(a) Excursus: Anton Piller Orders (B35.31) in Harms DR (ed) Civil Procedure in the Superior
Courts (LexisNexis Butterworths Durban 2018).
 The Anton Piller order was devised in the United Kingdom.
 It is an order directed at the preservation of evidence.
 The term 'Anton Piller order' is also used where a real or personal right is sought to be
enforced or asserted.
(d) Non-detonating Solutions (Pty) Ltd v Durie and Another [2016] (3) SA 445 (SCA).
> The court a quo adopted a too restrictive approach to the terms of the Anton Piller order
(e) Viziya Corporation v Collaborit Holdings (Pty) Ltd and Others [2019] (3) SA 173 (SCA).
> A case for Anton Piller order that had been granted ex parte was set aside by the court a quo
The insolvency procedures and business rescue
(a) Sections 334, 345, 346, 415, 417, 418 of Companies Act 61/1973 and its commentary
in Meskin PM (ed) Henochsberg on the Companies Act 61 of 1973 5th ed (Butterworths Durban
1994).
Section 334
Transfer of undertaking of external company and exemption from transfer duty under a
scheme.
Section 345
When company deemed unable to pay its debts
Section 346
Application for winding­up of company
Section 415
Examination of directors and others at meetings
Section 417
Summoning and examination of persons as to affairs of company
Section 418
Examination by commissioners
Sections 8, 9, 10, 11, 12 of the Insolvency Act 24/1936.
 Acts of insolvency
 Petition for sequestration of estate
 Provisional sequestration
 Service of rule nisi - A rule nisi is an order calling upon Respondents to show cause, if
any, on a fixed date why the rule should not be made final.
 Final sequestration or dismissal of petition for sequestration
(d) Gupta v Knoop NO and Others [2020] (4) SA 218 (GP).
Business rescue
(e) Ziegler South Africa (Pty) Ltd v South African Express SOC LTD and Others [2020] (4)
SA 626 (GJ).
Business rescue or sequestration
2. Investigative (legal) tools
Discov Discovery
(a) Rule 35 of the Uniform Rules of the High Court and its commentary in Van
ery
Loggerenberg DE and Farlam BPJ (eds) Erasmus Superior Court Practice (JUTA Law
Landsdowne 2020).

Subpoe
na
duces
tecum
Discovery is a procedure whereby a party to an action can:
o Require his opponent to specify on oath the documents and tape recordings in
his possession or under his control which relate to the action and
o Inspect and copy such documents and tape recordings
Subpoena duces tecum
(a) Rule 38 of the Uniform Rules of the High Court and its commentary in Van
Loggerenberg DE and Farlam BPJ (eds) Erasmus Superior Court Practice (JUTA Law
Landsdowne 2020).
Rule 38 – Procuring evidence for trial
 Rule 38 makes provision for various procedures to procure evidence for trial. In addition,
the rule makes provision for the manner in which evidence will be adduced at a trial.
Forfeit
ure of
pensio
n
Forfeiture of pension
(a) Section 37D (b)(ii) of the Pension Funds Act 24/1956.
Section 37D – Fund may make certain deductions from pension benefits
Part III – Labour Law for Forensic
Investigators
A. Recruitment and Selection
1. Offer and acceptance of the employment contract
(c) Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC).
The case addresses the following issues
 Does acceptance of an offer of employment sent by email or short message
service (SMS) result in a valid contract?
 When is an acceptance of an offer sent by email or SMS received?
 Is an SMS an electronic communication? What is an electronic communication?
After the case was presented, the questions were
i.
Was the content of Jafta’s e­mail an acceptance of Wildlife’s offer of employment?
ii.
Was the content of Jafta’s SMS an acceptance of Wildlife’s offer of employment?
iii.
Did Wildlife receive Jafta’s e­mail?
iv.
v.
Is an SMS a proper mode of communicating acceptance of an offer?
If Wildlife did receive an acceptance of the offer and a valid contract of employment
came into existence, what are Jafta’s damages arising from Wildlife’s repudiation?
To determine the validity of acceptance of an offer, the common law requirements of a valid
acceptance should be met. These requirements are
 Unequivocal Acceptance – must be clear, unequivocal and unambiguous.
 Correspond with the offer
 Mode of acceptance
 Communicate to Offeror
(d) Young v BarmesGroup (2019) 40 ILJ 479 (CCMA).
In the case the issue was whether there was an employment relationship and contract,
verbally agreed to and terminated before commencement of employment
The commissioner confirmed that
 A dismissal occurs where an employer has terminated employment with or without
notice.
 An employment contract could be verbal or written or a combination of both
 It mattered not if the commencement date of employment was referred to a future
date
 For a verbal agreement to be valid, there must be




An intention to create a legal relationship
An offer and acceptance
Agreed essentials of the contract (eg remuneration, duration etc) and
Consensus on the rights and duties of the parties
 If a person is promised a job on a certain date and with specified duties, an employer
is bound to honour that promise.
 The onus however lay with the employee to establish the existence of the
employment relationship and accordingly the dismissal
(e) Mazibuko v AMCU (2019) ILJ 467 (CCMA).
The case is about resignation, followed by withdrawal of resignation and unfair dismissal
After resignation the employee was persuaded by the general secretary to withdraw
resignation which he did via email and the email was not acknowledged. The employee was
however assigned duties after his resignation date and was ordered to leave the company
as he was deemed resigned. He then filed for unfair dismissal as he had withdrawn his
resignation and was of the belief his withdrawal was noted hence the allocation of work after
what would have been his last day of work.
The commissioner found that the employee was dismissed and that his dismissal was
substantively and procedurally unfair
(f) Asuelime v University of Zululand (2019) 40 ILJ 456 (CCMA).
The case is about Resignation and Withdrawal
 Employee resigned but subsequently withdrew resignation
 Employer declined to accept withdrawal and insisted employee leave service on
expiry of notice period
 Once resignation accepted, such constituting binding mutual cancellation contract
between parties.
The commissioner found that the employee was not dismissed.
(g) Piet Wes Civil CC & another v AMCU and others (2019) 40 ILJ (LAC).
The case is about whether Contract of employment was Fixed term or limited term
contract. Service provider employer placing employees with client in terms of contract
providing that duration of employment dependent on duration of employer’s contract with
client.
Requirements for employment contract to be valid and lawful fixed-term contract - Section
198B (6) applicable. The contract should be
 in writing
 where contract verbal, provisions of s 198B not complied with
 the fixed-term contract is required, in terms of s 198B (1), to state expressly that it
is to terminate on the occurrence of a specified event, on the completion of a
specified task or project or a fixed date, subject to s 198B (3).
 The requirement that a written offer of employment is made to an employee is for
the compelling reason that it seeks to prevent any later dispute arising as to the
terms, scope or duration of the fixed-term or limited duration contract entered.
 Contract deemed to be of indefinite
The court concluded that, since all of the employment contracts entered into were of an
indefinite duration as contemplated by s 198B(5), such contracts could not be terminated
on notice by the employers without adherence to the fair dismissal procedures set out in
the LRA. duration.
The employers were asked to reinstate the employees.
2. Misrepresentation of qualifications
(a) Department of Home Affairs & Another v Ndlovu & Others (2014) 35 ILJ 3340
(LAC).
The case is about whether dismissal was an appropriate sanction for an employee who
had shown gross dishonesty by misrepresenting qualifications in CV.
 Employer generally to produce evidence of breakdown in employment relationship
 Such evidence not required where breakdown apparent from nature of offence
and/or circumstances.
 Dismissal on the grounds of Dishonesty as the Employee misrepresented
qualifications in curriculum vitae. He created false impression that he possessed
qualifications
 Mere fact that employee disclosed to interviewing panel that he did not have
degree not detracting from initial dishonesty – it was not clear from the record that
he did disclose to the panellist that he did not have the degree yet
 That resulted to serious misconduct amounting to gross dishonesty
 Apparent from nature of offence that employment relationship irreparably damaged
 Dismissal was fair
(b) LTE Consulting (Pty) Ltd v CCMA & others (2017) 38 ILJ 2787 (LC).
It was discovered after 4 years that the financial manager had misrepresented his
qualifications in the CV he had submitted with his application for employment.
 He was dismissed on grounds of misconduct following a disciplinary enquiry and
he challenged the decision by referring a dispute concerning an allegedly unfair
dismissal to the CCMA.
 Referring to previous jurisprudence to the effect that honesty and integrity are
paramount in an employment relationship, even where dishonesty in a CV might
not have induced the dishonest employee’s appointment and irrespective of the
fact that a lengthy period of employment might have ensued since the
misrepresentation was made, the court found that the commissioner’s award was
unreasonable, set it aside and
 declared the employee’s dismissal to have been fair
(c) G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others (2017) 38 ILJ 881
(LAC).
 Disciplinary penalty resulted in dismissal of employee based on dishonesty
 Employee failed to disclose criminal conviction in application for employment
 Deliberate concealment of true facts constituting dishonesty and serious breach of
employer disciplinary code
 Fact that long time elapsed after non-disclosure not negating seriousness of
misconduct
 It was ruled on appeal that dismissal was fair.
This was so because the fact that dishonesty had been concealed for an extended period
did not in itself negate the seriousness of the misconduct or justify its different treatment.
The court therefore found that the company had been entitled to cancel the employment
contract and dismiss the employee. It accordingly upheld the appeal.
(d) Numsa obo Engelbrecht v Delta Motor Corporation [1998] 5 BALR 573 (CCMA).
Inconsistency in application of discipline
The issue in dispute was whether the dismissal of the employee was substantively fair.
The main contention on behalf of the employee is that his dismissal was inconsistent with
decisions taken by the employer in previous cases. Procedural fairness was not in
dispute.
the commissioner found that the employer had in fact acted inconsistently in the
application of its policy regarding employees who had failed to disclose material
information in their application forms. Since the employer had not succeeded in justifying
its inconsistency, the applicant was reinstated.
(e) PSA obo Majake / SARS [2005] 12 BALR 1308 (CCMA).
The issue was whether the dismissal met procedural fairness –
 SARS auditor compiling fraudulent letter to persuade employer to cancel garnishee
orders against her
 There was failure to comply with disciplinary code as the appeal chairperson
handed down decision outside time limit imposed by disciplinary code
 Non­compliance unfair in absence of explanation.
 The dismissal of the applicant, was substantively fair, but procedurally unfair.
(f) Boss Logistics v Phophi & Others (2010) 31 ILJ 1644 (LC).
Dismissal due to poor performance
 Applicant for employment misrepresenting experience and/or qualifications
 No duty on employer to A provide employee with counselling, training or
assistance
 Employee dishonest and not entitled to appointment in first place
 Deceit incompatible with and destructive of relationship of trust
 To require employer to provide counselling or training would reward employee for
dishonesty
3. Termination on the grounds of failure to disclose
(a) Eskom Holdings Ltd v Fipaza and Others [2013] 4 BLLR 327 (LAC).
An employee was dismissed for misrepresentation. The employee failed to disclose during
application for job that she had been dismissed after previous period of employment with
employer. It was ruled that non­disclosure did not constitute misrepresentation as previous
dismissal fell within employer’s knowledge.
It is not a requirement to give detailed employment background in a CV
Dismissal for non­disclosure was deemed unfair.
(b) SA Post Office Ltd v Commission for Conciliation, Mediation & Arbitration &
Others (2011) 32 ILJ 2442 (LAC).





The disciplinary penalty was dismissal for dishonesty after an applicant
misrepresented her qualifications
Employee misrepresented that she met minimum requirements for a post.
Such serious misconduct and amounting to dishonesty
It was Grossly unreasonable to order re-employment of employee guilty of
dishonesty in position requiring honesty and integrity
Dismissal upheld
(c) Sapppi Novoboard (Pty)(Ltd) v Bolleurs (1998)19 ILJ 784 (LAC).
Dismissal—Breach of fiduciary duties by employee—Employee earning secret
commission when he should have been working in interests of employer—Immaterial that
employer benefited from transaction—Employee breaching duty of good faith and acting
dishonestly—Valid reason for dismissal.
B. Forms of Misconduct
1. The fiduciary duty of employees
(a) Idensohn K “The Nature and Scope of Employees' Fiduciary Duties” 2012 33 ILJ
1539– 1554.
Types of Employee Duties

Duties that attach to all employees in their capacity as ordinary employee
 these are contractual duties that arise out of the express terms of their contract
of employment or are implied into that contract by statute, the common law,
applicable collective bargaining agreements, and established practices or
customs

Duties that attach to employees in their capacity as fiduciaries
The General Nature, Purpose and Operation of the Duties of Fiduciaries




The general nature and purpose of fiduciaries' duties
The meaning of 'fiduciary duties'
Distinctive features of fiduciary duties
Variations in the scope and application of fiduciary duties
2. Disclosure of confidential information and improper use of the employer’s
property, IT systems, computers, cell phones, data etc.
(a) Cronje v Commission for Conciliation, Mediation & Arbitration & Others (2002)
23 ILJ 1563 (LC).
Dismissal—Distribution of racist or inflammatory material by email—Whether material
racist or inflammatory to be judged in context in which used or distributed—Cartoon
associating black people with apes racially offensive at factory employing thousands of
black people in new South Africa—Dismissal fair
(d) Bamford & Others / Energiser (SA) Ltd [2001] 12 BALR 1251 (P).
Substantive fairness Misconduct Abuse of company computers Employees using
company computers to receive and forward pornographic, racist and sexist material –
Dismissal justified.
(e) Collier D “Workplace Privacy in the Cyber Age” 2002 23 ILJ 1743 – 1760.




Vivarious liability
Employee law and the constitution
Dismissals and discipline
The right to privacy in the workplace
♦
♦
♦
Telephone tapping in the workplace
Goosen v Caroline's Frozen Yoghurt Parlour (Pty) Ltd & another – tape
recordings were found admissible in court
Protea Technology Ltd & another v Wainer & others –recording of
telephone calls of the waiter by the employer. Right to privacy was deemed
subjective and evidence was admissible in court
 Comparative law
(f) Sasol Nitro v National Bargaining Council for the Chemical Industry and Others
(2017)9 BLLR 883 (LAC).
Dismissal – Misconduct – Employer basing sanction of dismissal on cumulative effect of
different acts of misconduct, but failing to prove dishonesty, as alleged and disregarding
employee’s years of unblemished service – Dismissal unfair
3. Falsification of records
(a) Standard Bank of SA Ltd v Commission for Conciliation, Mediation & Arbitration
& Others (1998) 19 ILJ 1903 (LC).
> There was a Contract of employment and good faith a fundamental principle of
employment relationship.
> There was a breach of trust or conduct involving dishonesty by employee goes to heart
of relationship in this case employer was a bank where every transaction permeated with
unqualified good faith
> the employee claimed to be at work when she was off and in addition claimed OT
> Dismissal justified.
(b) De Beers Consolidated Mines/ CCMA & Others (2000) 21 ILJ 1051 (LAC).
Dismissal—Fraud—Claim for payment for overtime not worked—Fraud resulting in
breakdown in trust relationship—Long service not mitigatory factor—Employee's false
denial of committing act of dishonesty entitling employer to regard risk of continuing to
employ employee too high
> Dismissal fair.
(c) Thabiso Mashigo v BEKA (Pty) Ltd and Others JR 1147 of 2014 delivered 2017.

charged with various acts of misconduct following their submission of fraudulent
sick notes following their absence from work on various occasions
Gross misconduct in that you have:
1. Deliberately supplied incorrect or falsified information to the company in the form of a
fraudulent doctors’ note.
2. That this is considered fraudulent as it was not supplied by a doctor. This is a complete
misrepresentation of the facts of your absence.
3. Dishonesty during the course of your employment in that you have purported to be sick
when in fact you were not.
4. Breach of the trust relationship.
5. Undue enrichment in that you have been paid for sick leave that you were not entitled to
(d) G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others (2017) 38 ILJ 881
(LAC).
Dismissal—Dishonesty—Employee failing to disclose criminal conviction in application for
employment—Deliberate concealment of true facts constituting dishonesty and serious
breach of employer disciplinary code—Fact that long time elapsed after non-disclosure not
negating seriousness of misconduct—Dismissal fair.
4. Absenteeism and medical certificate fraud
(a) Mgobhozi v Naidoo NO & Others (2006) 27 ILJ 786 (LAC).
Employee failed to bring review application timeously, the reason provided for the failure
were grossly inadequate. To determine whether employee was mentally competent
medical certificates were provided however these were deemed hearsay evidence which
was not admissible in court.
Affidavits by medical practitioners were necessary, thus failure to provide the affidavit
resulted in gross inadequacy
5. Derivative and group misconduct
(a) True Blue Foods (Pty) Ltd t/a Kentucky Fried Chicken v CCMA & Others [2015] 2
BLLR 194 (LC).
Dismissal – Misconduct – “Team liability” – All members on particular shift in fast food
outlet dismissed as massive shrinkage continued – Concept of “team liability” applicable
and employer not required to prove individual guilt – Dismissal fair.
C. The Disciplinary Process
Investigative process and selected forensic tools
(c) Tachographs:
 Empangeni Transport (Pty) Ltd v Zulu (1992) 13 ILJ 352 (LAC).
(d) Breathalysers:
 Pikitup (Soc) Ltd v South Africa Municipal Workers’ Union obo Members and
Others [2014] 3 BLLR 217 (LAC).
Health and safety – Employer’s duties – Employer’s required only to take steps
that are “reasonably practicable” to comply with obligations under Occupational
Health and Safety Act 85 of 1993 – Unilateral introduction of compulsory
breathalyser tests not among such steps
 Palaborwa Mining Co Ltd v Cheetham & Others [2008] 6 BLLR 553 (LAC).
Dismissal – Alcohol-related conduct – Senior employee dismissed for registering
positive in random Alcotest – Dismissal appropriate despite employee’s length of
service and clean record.
(e) Polygraph tests:
 DHL Supply Chain (Pty) Ltd v De Beer NO & Others (2014) 35 ILJ 2379 (LAC).
Dismissal—Stock losses—Employees required to undergo polygraph tests—
Employees who failed test B dismissed—Polygraph test on own not conclusive of
finding of guilt—Other evidence supporting polygraph results required—Where no
additional evidence supporting polygraph results, dismissal unfair.
Evidence—Polygraph tests—Probative value—Such test not conclusive or C
corroborative to establish guilt in absence of expert evidence to establish cogency
of concept of polygraph and to establish integrity of process—Previous decisions
allowing polygraph evidence without expert evidence not meaning that such
expert evidence to be dispensed with in future cases.
 Le Roux P A K “Polygraph Testing and Employment” 2013 22 7 Contemporary
Labour Law 61 – 63.
(f) Tape recordings
 Smit and Rawlplug SA (Pty) Ltd (2014) 35 ILJ 814 (CCMA).
Dismissal ­ Proof of ­ Senior manager resigning in pique when attempts to
negotiate better package failed, then changing mind and asking to stay on ­
Dismissal not proved. The applicant was not dismissed but rather resigned.
 Smith and Partners in Sexual Health (Non-Profit) (2011) 32 ILJ 1470 (CCMA).
Privacy - Invasion of privacy - Regulation of Interception of Communications and
Provision of Communication-related Information Act 70 of 2002 - Employer
accessing employee's private Internet-based e-mail account and discovering
confidential information about internal matters - Such information not in public
domain and access invasion of employee's privacy - Information not admissible as
evidence against employee. Dismissal considered procedural unfair
 Protea Technology Ltd and Another v Wainer and Others 1997 (9) BCLR 1225(W).
admissibility – illegally obtained evidence – evidence obtained by means of an
infringement of another party’s constitutional rights – the common law position that
all relevant evidence is admissible irrespective of the manner in which it was
obtained, subject to the Court’s discretion to exclude it, is inconsistent with the Final
Constitution – the entrenchment of the fundamental rights requires that the test be
formulated differently – any evidence which has been obtained through a breach of
a fundamental right should be admitted only if its admission is justifiable by the
standards laid down in the limitations clause, section 36(1) of the Final Constitution
– in each case the Court retains a discretion to admit evidence which is relevant but
which has been obtained in breach of a fundamental right – such discretion to be
exercised with judicial regard to the substance of section 36(1), giving due weight to
the need to protect the right which has been breached, policy considerations and
the boni mores of the community.
 Miscke C “Eavesdropping: Unauthorised Recording of an Employee’s
Conversations” 2011 21 5 Contemporary Labour Law 46 – 50.
(g) Emails, social networks and privacy
 Spring Forest Trading v Wilberry (725/13) [2014] ZASCA 178 (21 November
2014).
Contract – non-variation clause providing for cancellation to be in writing and
signed by the parties – whether cancellation by email valid
 Miscke C “Social Networks, Privacy and Dismissal” 2011 21 2 Contemporary
Labour Law 11 – 17.
(h) Whistleblowers
 LeRoux R “Aspects of SA Law as it Applies to Corruption in the Workplace” 2004
(17) South African Criminal Journal 158 – 177.
 Randles v Chemical Specialities Ltd [2010] BLLR 730 (LC).
Protected Disclosures Act 26 of 2000 – Application – Employees need only prove
that they genuinely believed that allegation of wrongdoing was true, and that
disclosure made to person or body specified in Act – Employee’s disclosures of
alleged wrongdoings to company’s board and to JSE constituting protected
disclosure
 Randles v Chemical Specialities Ltd [2011] 8 BLLR 783 (LC).
Whistleblowers – Legal privilege – Employer raising defence in action under
Protected Disclosures Act 26 of 2000 that disclosure constituting legal advice and
therefore privileged – Employer bearing onus of proving privilege.
 Ngobeni v Minister of Communications & Another (2014) 35 ILJ 2506 (LC)
Protected Disclosures Act 26 of 2000—Occupational detriment—Section 3—
Employer prohibited from subjecting employee to occupational detriment on D
account of or partly on account of his having made protected disclosure—Nexus
between disclosure and disciplinary proceedings against employee—Employee
making protected disclosure of financial impropriety in good faith— Employee also
to answer to serious allegations of financial impropriety—Not intention of PDA to
exonerate whistleblowers involved in acts of misconduct—Even if E disciplinary
action partly because of protected disclosure, employer entitled to invoke
disciplinary processes and court not to interfere in internal processes—Disciplinary
action not occupational detriment.
D. The Disciplinary Hearing
1. Procedural fairness
(a) Code of Good Practice: Dismissals.
 Fair reasons for dismissal.
Disciplinary procedures prior to dismissal
 Disciplinary measures short of dismissal
Dismissals for misconduct

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Fair procedure
Disciplinary records
Dismissals and industrial action
Probation
Guidelines in cases of dismissal for misconduct
Guidelines in cases of dismissal for poor work performance
Incapacity: Ill health and injury
Guidelines in cases of dismissal arising from ill health or injury
(b) The propensity to over-complicate process.
 Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA).
 Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others [2006] 9
BLLR 833 (LC).
Dismissal – Theft – Employee caught on videotape talking to colleague who was
stealing goods – Video sufficient to prove on balance of probabilities that employee
was accomplice to theft
(f) Scheepers J “The Deformalization of Disciplinary Proceedings - Demise of the
Criminal Justice Model” 2012 33 ILJ 1555 – 1568.
The elements of procedural fairness set out in item 4 of schedule 8 to the LRA as
follows
• An investigation must be conducted by the employer into any alleged misconduct.
• An employee against whom an allegation of misconduct is made must be given an
opportunity to respond thereto.
• A reasonable period to respond should be allowed.
• The employee is entitled to be represented by a fellow-employee or trade union
representative.
• A decision by the employer.
• Notice of that decision must be given to the employee.
The other important ingredients of a fair disciplinary hearing would include:
1) the right to be told the nature of the offence or misconduct with relevant particulars
of the charge;
2) the right of the hearing to take place timeously;
3) the right to be given adequate notice prior to the enquiry;
4) the right to some form of representation (the representative could be anyone from
the work-place; either a shop steward, works council representative, a colleague or
even a supervisor, so as to assist the employee and ensure that the discipline
procedure is fair and equitable);
5) the right to call witnesses;
6) the right to an interpreter;
7) the right to a finding (if found guilty, he should have the right to be told the full
reasons why);
8) the right to have previous service considered;
9) the right to be advised of the penalty imposed (verbal warnings, written warnings,
termination of employment); and
10) the right to appeal, ie usually to a higher level of management.'
(g) Coetzer N “Substance Over Form - The Importance of Disciplinary Charges in
Determining the Fairness of a Dismissal for Misconduct” 2013 34 ILJ 57 – 72.
a commissioner or arbitrator who interprets disciplinary charges against an employee in
an overly formalistic and strict manner, exposes him- or herself to further scrutiny by the
courts, which have on several occasions held that disciplinary charges are not the same
as criminal charges and accordingly do not need to be drafted with the same precision.
(i) National Union of Mineworkers obo Members and Others v Arcelormittal South
Africa Limited and Others JR 802-18 2020 ZALCJHB 167.
This is about procedural fairness on dismissal of employees after one was injured at work
E. Post-Termination Litigation
1. CCMA proceedings
(g) Hearsay evidence:
 Mgobhozi v Naidoo NO & Others (2006) 27 ILJ 786 (LAC).
Evidence—Hearsay—Labour Court proceedings—Law of Evidence Amendment
Act 45 of 1998—Whether applicant mentally competent to launch application
timeously—Evidential material to be provided by medical C practitioners—
Evidence in medical certificates hearsay—Affidavits by medical practitioners
necessary—Reasons for failure to provide affidavits grossly inadequate
Part IV – Evidence
1. The Standard and Burden of Proof
(a) Chapter1: Introduction and Chapter 2: Burden of Proof in Schmidt CWH and
Rademeyer H (eds) Law of Evidence (LexisNexis Butterworths Durban 2018) 1-24
and 2-48.
 The primary function of the law of evidence is to prescribe what facts may be
presented to court to prove an issue, as well as the how and by whom this should
be done.
Scope of the law of evidence
 Proof
 Indicates that there are adequate grounds for a finding on a factual issue
 Prima facie proof – the possibility that what is now considered proved may
later be considered not to be proved.
 Conclusive proof – means that the facts is finally proved – refutation is not
possible
 Probative (evidential) material
 Evidence – most important means of proof. It is all the information given to a court
to enable it to decide a factual issue. It is all the information given a court to enable
it to decide a factual issue.
 It can be prima facie or conclusive
 Direct evidence – evidence for a fact in issue (eg on a murder charge,
evidence that A had shot and killed B)
 Circumstantial evidence – is evidence of the fact from which inference may
be drawn about a fact in issue (e.g., that a pistol bearing A’s fingerprints
had been found near B’s body)
 Facts
 Facts in issue – facts placed in dispute by the pleadings or the plea
 Facts relevant to the facts in issue – facts from which inferences may be
drawn about the facts in issue.
Classification and scope of the law of evidence
 Substantive law and adjective law generally – substantive law is the main body of
legal norms. Adjective law is concerned with the means by which the substantive
norms are enforced
 Admissions
 Estopel
 The parol evidence rule
 Presumptions
 The burden (onus) of proof
 The standards of proof
 A court orders the taking of blood or tissue sample: is it a procedural matter?
Sources
 Chronological review
 The dutch administration of the cape
 Introduction of English Law: development up to 30 May 1961
 The Republic: developments after 30 May 1961
 Constitutional provisions: the Bill of Rights
The burden (onus) of proof
Nature and function
Incidence of the of the burden of proof
 Civil proceedings
The basic rule is he who asserts must prove
 The onus does not rest with plaintiff or defendant but by the party who
asserts not the one who denies.
 Burden rests with the party alleging a will is invalid, that a contract has
been concluded, that the other party was negligent etc
 The person who asserts in the civil proceeding is the one that makes a
positive allegation
The cause of action test: plaintiff proves his cause of action and defendant
proves a special defence
Application in respect of contractual issues
 Plaintiff proves the existence and nature of the contract
 Plaintiff proves the enforceability of his contract
 Defendant proves facts which prevent enforceability
 Ownership and eviction proceedings
Application in respect of delicts
 The delictual act and the defendant’s state of mind
 Criminal proceedings
 The state bears the burden of proof
 The criminal act and the causal connection
o The state must prove that the accused performed the criminal act.
o The state thus has the onus of proof when an accused puts forward an
alibi, even though this is a defence raised by him.
o The state not only has to prove the act but must also prove that the act
caused the prohibited result. The causal chain must be forged.
 The state must prove that the act was unlawful
 The court has to prove that the accused had the mental capacity to distinguish
between right and wrong and to act accordingly.
 The state has the burden of proving mens res whether in the form of dolus or
culpa (criminal intent in doing anything that is contrary to good conscience or
negligence)
 Factors influencing sentencing
 Bail proceedings
 Statutory provisions
 The constitution – s35(3)(h) states that every accused person has a right to
a fair trial and that this includes the right to be presumed innocent.
 If the party bearing the onus of proof makes out a prima facie case his
opponent is saddled with an evidential burden
 Proof of an exception, exemption, proviso or qualification
 Proof of licence, permit, permission or other authority or qualification
o It requires an accused person to prove permission or authority to do
an act which would otherwise be an offence.
 Statutory offences: defence of absence of mens rea or unlawfulness
 Absence of unlawfulness: proof of grounds of justification
(b) Schwikkard PJ “The Standard and Burden of Proof and Evidential Duties in Civil
Trials” in Schwikkard PJ and Van der Merwe SE (eds) Principles of Evidence 4rd ed
(JUTA Wetton 2016) 616 – 628.
 In civil cases the burden of proof is discharged as a matter of probability
 The standard is often expressed as requiring proof on a balance of probabilities
2. Hearsay evidence
(a) Schwikkard PJ “Hearsay” in Schwikkard PJ and Van der Merwe SE (eds)
Principles of Evidence 4rd ed (JUTA Wetton 2016) 287 – 303.
 Hearsay evidence is evidence, whether oral or in writing the probative value of
which depends upon the credibility of any person other than the person giving the
evidence.
 Hearsay evidence is generally inadmissible.
 hearsay evidence may be admitted by consent.
 the failure to object to the admission of hearsay evidence may be regarded as
consent
 consent will also be inferred where a party deliberately elicits hearsay evidence
from her opponent in cross examination
 s3(1)(b) of the Law of Evidence Amendment Act hearsay evidence may be
provisionally admitted where the court is informed that the person upon whose
credibility to the probative value of the evidence depends on is going to testify at
some future date in the proceedings.
 It was excluded from criminal courts because hearsay evidence cannot be tested by
way of cross examination, and is furthermore typically unreliable as the witness
tendering the hearsay evidence may have mistakenly made an error in the
interpretation of that communicated to him or her by the source of the evidence.
 Hearsay is exceptionally admissible in terms of s 3 of the 1988 Act. It can be
admitted in the following circumstances:
(a) by consent;
(b) where the person upon whose credibility the probative value of the evidence
depends will testify later; and
(c) when it is in the interests of justice to admit the evidence.
3. Real evidence
(a) Van der Merwe SE “Real Evidence” in Schwikkard PJ and Van der Merwe SE
(eds) Principles of Evidence 4rd ed (JUTA Wetton 2016) 421 – 430.
 Real evidence is an object, upon proper identification, becomes, of itself, evidence
[such as a knife, photograph, voice, recording, letter or even the appearance of a
witness in the witness box]
 the party who wishes to produce real evidence for inspection by the court must call
a witness who can identify the material object.
 real evidence usually owes its efficacy (ability to produce a desired result) [and
relevance] to a witness who explains for example where the exhibit was found or
how it was used or why he claims that he is the owner.
 The court’s function and the limits of its observation
 The situation where real evidence is not produced
Appearance of persons
A person's physical appearance and characteristics are through evidence
 Resemblance of a child to reputed parent
 Physical appearance is really evidence of approximate age
 Courts observation of witness for purposes of determining competence to testify
Tape recordings
 tape recordings may be admissible as real evidence.
 the main danger with tape recordings is the possibility of editing or alteration of the
tapes.
 The court should be satisfied that it is shown prima facie that the recording is
original
Fingerprints
 Evidence that fingerprints were found at the scene of the crime or on a particular
object is often of strong probative value in linking the accused with the commission
of a crime
Photographs, films and video recordings
 Photographs may be produced as real evidence of such matters as injuries or
accident damage
 A photograph may also be used way in item is too bulky to produce in court
Inspections in loco

And inspection in loco may achieve 2 main purposes
a. It may enable the court to follow the oral evidence more clearly or
b. It may enable the court to observe some real evidence which is additional
to the oral evidence
 The inspection should be held in the presence of both parties
Blood tests, tissue typing and DNA identification
 The results of blood tests may be used in litigation
4. Documentary evidence
c) Section 221 of the Companies Act 71/2008 and its commentary in Meskin PM (ed)
Henochsberg on the Companies Act 71 of 2008 (Butterworths Durban 2011).

Section 221 provides for proof of facts in respect of records held by the
commission and panel and provides that information is admissible as evidence if
made by the personwho made or stored those facts (in electronic form)
5. Electronic evidence
(b) Hofman J and De Jager J “South Africa” in Mason S (ed) Electronic Evidence
3rd ed (LexisNexis Butterworths Durban 2012) 761 – 796.
Data messages and their admissibility
 Data message means data generated, sent, received, or stored by electronic
means and include a) voice, where the voice is used in an automated transaction,
and b) a stored record
 Section 15 (1)(a) of the ECT – Admissibility and evidential weight of data
messages. In any legal proceedings, the rules of evidence must not be applied so
as to deny the admissibility of data message, in evidence (a) on the mere grounds
that it is constituted by a data message
Requirements for a data message to be admissible
a. The statement in the document must be relevant and otherwise admissible
b. The authenticity of the document must be proved
c. The original document must normally be produced
Originality of data message depends on its integrity from the time it was first generated in
its final form as data message.
Production – to qualify as evidence the original document must be produced. The
information is capable of being displayed or produced to the person to whom it is to be
presented.
Authenticity – confirm the document is what it claims to be. This usually means calling
someone to identify the document. Most official documents do not need to be
authenticated however, usually require the signature or seal of the official.
HEARSAY AND ITS EXCEPTIONS
 Exception provided by the law of evidence amendment Act
o Section 3 of LEA states that hearsay evidence shall be admissible in court
only if
 Each party against whom the evidence is to be adduced agrees to
the admission thereof as evidence at such proceedings,
 The person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings or

The court is of the opinion that such evidence should be admitted in
the interests of justice
 Exception where the author of data message is not available
o The exception is subject to 2 conditions 1) the author of the document must
have had personal knowledge of the matters, and 2) it must be impossible
or difficult to call that person as a witness.
 Exception for business records - admissible under certain conditions
EVIDENTIAL WEIGHT OF DATA MESSAGES
There are 2 presumptions in favour of data messages
1- presumption in favour of advanced electronic signatures
 Where the signature of a person is required by law and such law does not specify
the type of signature that requirement in relation to a data message is met only if
an advanced electronic signature is used.
 Advanced electronic signature require an accredited certification service provider.
 Section 13(4) of the ECT Act With an advanced electronic signature has been
used, such signature is regarded as being valid electronic signature and to have
been applied properly unless the contrary is proved.
 Advanced electronic signatures do you not affect the admissibility or evidential
weight of the data message it has been used to sign.
2- Presumption In favour of data messages made in the course of business
 Banking data messages are admissible in court as the industry is heavily regulated
however, other data messages in the ordinary course of the business may not
carry so much weight.
Guidelines for assessing the evidential weight of data messages – s15(3) of ECTA
Records and confidentiality
 Duty to keep records
 Confidential information – communications between attorney and client are
privileged and cannot be used as evidence in court

Criminal proceedings, offenses and penalties allows for the admissibility of evidence
obtained in another country through an interception direction.
Evidence obtained in a foreign country is subject to the ordinary South African law on
admissibility.
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Search warrants
Electronic forensics
Evidence obtained without the required authority
Using electronic equipment in court
6. Opinion evidence
(a) Chapter 10: Opinion in Zeffert DT and Paizes AP (eds) Essential Evidence
(LexisNexis Butterworths Durban 2020) 103 - 117.
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Formulation of the opinion rule
Stating inferences to save time
Ultimate issues
Expert evidence:
a) procedure
b) the duties of an expert witness
Objectivity is the essential element of an expert’s duty
 His evidence must be, and must seem to be uninfluenced by the
exigencies of litigation in its form and content
 must not assume the role of an advocate but must give an unbiased
opinion on matters that are within his expertise
 should state the facts or assumptions upon which his opinion is based
 should not omit to consider matter that would detract from his opinion
 should make clear when a particular question or issue falls outside his
expertise
 if he has not fully researched his opinion, he must say that it is
provisional and
 if something stated in his opinion requires qualification, he must say so.
c) qualifications of an expert
d) the form of expert evidence
e) assessing the value of expert evidence
f) illustrations
The following are areas where expert evidence tends to arise
o Handwriting
o Fingerprints and palmprints
o Footprints
o Tool marks and ballistics
o Foreign law and indigenous law
o Intoxication
 Non-expert opinion
 The rule in Hollington v FC Hewthorn
9. Illegally and improperly obtained evidence
(a) Chapter 18: Illegally and improperly obtained evidence in Zeffert DT and Paizes
AP (eds) Essential Evidence (LexisNexis Butterworths Durban 2020) 233 – 258.
The arguments for and against the admission of improperly obtained evidence
The three main principles encountered in the case law and the literature are these:
 the reliability principle
 The disciplinary principle
 the protective principle
Approaches to the admissibility of improperly obtained evidence
 The inclusionary approach
This holds that all relevant evidence is admissible and that any impropriety in the
acquisition of evidence is no grounds for excluding it.
 The strict exclusionary approach
This approach prohibits the admission of all evidence improperly or illegally
obtained.
 The intermediate approaches
These recognize the need for compromise by balancing against each other
competing dictates of public policy
5 classes of cases to be considered in applying section 35(5)
a. Cases where the accused was not properly informed of his rights prior to making a
statement or a pointing out.
b. evidence obtained is the result of illegal searches
c. evidence obtained as a result of illegal monitoring or interception of
communications
d. Autoptic evidence and other evidence possibly and involuntarily taken from the
person of the accused.
e. Evidence obtained as a result of improper treatment of witnesses other than the
accused
The two legs of the exclusionary rule in section 35(5)
a) render the trial unfair or
b) be detrimental to the administration of justice
 Good faith
 Consideration of urgency and the public safety
 The nature and seriousness of violation of accused’s righs
 The availability of alternative, a lawful means of obtaining the evidence in question
 The deterrence or disciplinary factor
 The nature of the evidence
 The fact that the evidence in question would inevitably have been discovered even
if improper means he had not been employed
10. Privilege
(a) Chapter 17: Privilege in Zeffert DT and Paizes AP (eds) Essential Evidence
(LexisNexis Butterworths Durban 2020) 193 – 229.
The privilege of the witness against self-incrimination
a. The rules
b. History and rationale
c. Nature and scope of privilege
d. Duty of the court to warn the witness
The right of the accused to remain silent
a. Consequences of remaining silent during trial
b. The pretrial silence of the accused in general and the failure to disclose an alibi in
particular
c. Admissibility of bail application proceedings at the ensuing trial
d. The staying of civil proceedings by a person charged with a criminal offence
e. Compelled extra curial incrementally evidence emanating from the accused but not
amounting to an admission or confession: fingerprints, footprints, handwriting, ETC
f. Intercepted extra curial communications
g. Anthony peeler orders
h. free trial, extra curial and other statutory procedures or inquiries which ostensibly
curtail the right to silence or the right against self-incrimination
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1)
2)
3)
4)
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Requirements for the operation of the privilege
The legal adviser must have been acting in his professional capacity
The legal adviser must have been consulted in confidence
The communication must have been made for the purpose of obtaining legal advice
The advice must not facilitate the Commission of a crime or fraud
Inspection of documents by the court
claiming the privilege
waiver
Secondary evidence of privileged communications
Communications between the legal adviser and the client or agents or third parties
other professional privilege
Litigation privileges – requirements
 Submission to legal adviser
 Anticipation of litigation
Waiver of privilege
Disclosure on the ground of ethical considerations
The docket privilege and the constitution
Marital and related privileges