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CPR 3701 – 2023 – MAY/JUNE EXAMINATION

IMPORTANT NOTICE

All four (4) sections of this paper are compulsory and must be completed on one
examination script.

SECTION 1

1.1 A, B and C are involved in criminal activities which give rise to charges of rape and
murder. The offences are alleged to have taken place in Mamelodi, Pretoria, on 16
June 2022. The investigating officer, Sgt. H, initially only manages to arrest A and
C.

1.1.1 Which part of the law determines the procedure to be followed by the court in the
subsequent criminal proceedings? (1)

Adjective Law

1.1.2 Which part of the law determines the elements of the offence which must be
proved by the prosecution in establishing its case? (1)

Substantive Law

1.1.3 The Public Prosecutor, Miss PP, and the investigating officer, Sgt. H, are of the
view that the matter should be heard in the district court. Briefly discuss the
feasibility of this view, in the context of South African criminal procedural law. (2)

A district court has jurisdiction to try all crimes except treason, murder and rape. In
this case the accused has been charged with murder and rape and therefore cannot

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be tried in the district court .

1.1.4 During the subsequent criminal proceedings the presiding officer, M, informs the
prosecution and the defence that she is, in fact, the ‘master of the case’, and that
she, therefore, has the power to determine the charges against the accused. Briefly
discuss the accuracy of M’s assertion. (2)

The prosecution can be described as dominus litis (“master of the case”) (see Zuma
2006 (2) SACR 257 (W)). It merely means that the prosecution can do what is legally
permissible to set criminal proceedings in motion, such as determining the charges
and the date and venue of the trial. An element of residual control by the courts over
decisions taken by the prosecution as dominus litis, remains essential. Fairness to
the accused is an important guideline in exercising this control

1.1.5 In her haste to proceed with the case, M, somehow omits to inform A and C about
their right to legal representation. Briefly discuss the procedural and substantive
consequences of the failure by M to inform A and C about their right to legal
representation. (2)

Legal consequences of a failure to inform the A of this right:

In Dyanti: the court decided that where the PO fails to inform the A of his common law
right to representation, an irregularity might arise.

The irregularity doesn’t in itself result in an unfair trial that will persuade the court of
appeal to set the conviction aside.

Q: whether the conviction has been affected by the irregularity – then A will have to
show on appeal or review that the irregularity resulted in a failure of justice.

An irregularity will lead to a failure of justice where there has been a real or material

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prejudice to the A.

1.1.6 B is apprehended a few weeks after the arrest of A and B. Briefly discuss the
procedure, in terms of section 155 of the Criminal Procedure Act 51 of 1977, which
is supposed to unfold when B appears before court with A and C. (2)

In terms of section 155(1), any number of participants in the same offence may be
tried together and any number of accessories after the same fact may be tried
together or any number of participants in the same offence and any number of
accessories after that fact may be tried together, and each such participant and each
such accessory may be charged at such trial with the relevant substantive offence
alleged against him.

SECTION 2

2.1 A and B are involved in a bruising physical brawl. B subsequently succumbs to the
injuries sustained during the fight and dies in hospital. The Director of Public
Prosecutions (DPP) is not convinced that the prosecution has a ‘winnable’ case,
and decides to withdraw the case.

The company for which for which B worked, BD Constructions, claims to have
experienced a ‘profound sense of loss’ occasioned by B’s death. The directors of
the company want to pursue (in the name of BD Constructions) criminal action
against A. Advise BD Constructions accordingly. (4)

Section 7 of the Criminal Procedure Act provides locus standi to the following
persons in any case in which an attorney-general declines to prosecute for an
alleged offence—

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(a) any private person who proves some substantial and peculiar interest in the
issue of the trial arising out of some injury which he suffered individually as a
consequence of the commission of the said offence;
(b) a wife or husband, if the said offence was committed in respect of his or her
wife or husband;
(c) the wife or child or, if there is no wife or child, any of the next of kin of any
deceased person, if the death of such person is alleged to have been caused by
the said offence; or
(d) the legal guardian or curator of a minor or lunatic, if the said offence was
committed against his ward, may, subject to the provisions of section 9, either
in person or by a legal representative, (not a juristic person) institute and
conduct a prosecution in respect of such offence in any court competent to try
that offence.

The director’s will qualify to take this up they fall into category (a) above .

Hints: your answer should contain:

i. the applicable course of action to be followed after the DPP’s prosecutor’s
decision;
ii. the locus standi of BD Construction, and whether the company is eligible to
proceed with any legal action as set out on p. 93 par. 5.3.2, of the prescribed
textbook

2.2 During a visit to Caucasia, a country in Western Europe, Bobby Philanderer, a

South African, meets and falls in love with a native Caucasian, Blessing Trulove.
Blessing is a male of African descent, whilst Bobby is a white male. The laws of
Caucasia prohibit intimate inter-racial and homosexual relations between people.
Caucasia is a conservative country, in which acts of this nature are punishable by
death. Fortunately, Bobby gets wind of his imminent arrest, and manages to
escape to South Africa, just in time. The Director of Public Prosecutions, Dee Pea
Pea, in the South African Free State province, receives a request from the
Caucasia government to ‘repatriate Mr Bobby Philanderer to the Republic of

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Caucasia, [there] to be prosecuted to the fullest extent of the law for violating some
of our most valued laws’.

Discuss whether in terms of South African law, Bobby Philanderer can be

extradited to Caucasia. (8)

The general corresponding principles which usually accompany extradition

agreements:
• The crime has to be punishable as such in both countries - the so called
principle of double criminality.
• Extradition is normally not granted for crimes of a political nature.
• The perpetrator may only be charged, in the receiving country, of
the offence with which he was originally charged in the sending
country, unless the sending country agrees to the adding of a
further charge.
• Extradition may be refused in circumstances where the death
penalty may be imposed in terms of the law of the requesting state
and if the law of the sending state does provide for the death
penalty for the commission of the particular crime.
• An extradition agreement usually contains a ne bis in idem rule
which corresponds with pleas of autrefois acquit and autrefois
convict.

The “intimate inter-racial and homosexual relations” that Bobby is accused

of is not punishable in South Africa and not seen as a crime .
Thus, the extradition rules set out above does not necessarily sanction the
extradition to Caucasia. Also, according to the principles set out in
(b), a person may not be extradited if the death penalty in respect of the
offence in question might be imposed in the sending country. In this
respect, therefore, the South African authorities are not compelled to
extradite Bobby because the death penalty is a competent sentence in

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Caucasia

Hints: your answer must be restricted to the following aspects:

i. The most relevant principles of extradition as discussed on p. 175, par. 7, 5 th

par (numbered (1) - (5)) of the prescribed textbook;
ii. Your answer must not only regurgitate the principles set out on p. 175, but
must discuss the feasibility of these aspects in conjunction with the given
facts and applicable South African law; and
iii. Your answer must be accompanied by a reasoned conclusion on the
question asked above.

2.3 A, B and C are arraigned on a charge of robbery with aggravating circumstances.

During the formal bail application, it transpires that,

(a) some of the potential witnesses in the subsequent trial are known to all three
the accused;
(b) all three the accused regularly cross the border between South Africa and
Botswana through illegal means.

Critically discuss the most appropriate grounds in terms of s 60(4), upon which all
three the accused may be granted or denied bail. (8)

Hint: in your answer the provisions set out in s 60(4) need not merely be set out
verbatim, but must be aligned to the facts and the accompanying (legislative)
factors as set out in s 60(5) – (8A) of the CPA (see p. 219 – 223 of the prescribed
textbook).

(1) Everyone who is arrested for allegedly committing an offence has the
right to be released from detention if the interests of justice permit, subject
to reasonable conditions– s 35(1)(f) of the Constitution.
(2) An accused is, in the absence of a conviction by a court of law, also

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constitutionally presumed to be innocent. See s 35(3)(h) of the Constitution.

There is an obvious area of tension between this presumption and
deprivation of liberty pending the verdict of a court of law. Bail is a method
of securing a compromise.
(3) It has been said that the purpose of bail is to strike a balance between the
interests of society (the accused should stand his trial and there should be
no interference with the administration of justice) and the liberty of an
accused (who, pending the outcome of his trial, is presumed to be innocent)
(4) The legislature has determined that the refusal to grant bail shall be in the
interests of justice where one or more of the grounds referred to in s 60(4)(a)
to s 60(4)(e) are established.
(5) The whole issue turns on what is in the best interest of justice.
Obviously, it is not in the best interests of justice to grant bail to an accused
who will not stand his trial or who might otherwise abuse his liberty pending
verdict, for example, by intimidating state witnesses. However, it must be
appreciated that it is also not in the best interests of justice to refuse bail to
an accused who will stand his trial and who will not otherwise interfere with
the administration of justice.
In any further development and interpretation of rules and principles
governing bail, all courts are obliged to take full account of the provisions of
s 39(2) of the Constitution, ie, that a court must promote the spirit, purport
and objects of the Constitution.

2.4 A and B are arrested at the scene of a robbery in which they were allegedly
involved. C, the third suspect, manages to escape in a white bakkie, which is
recognized by some of the witnesses. A few days after the robbery, the
investigating officer, Sgt. H, learns, not only that C may have been involved in the
crime, but also that he owns a white bakkie fitting the same description of the one
used during the robbery. H goes to B’s house, where G, C’s wife, allows him to
conduct a search. A bakkie, apparently identical to the one used in the robbery is
discovered at C’s residence (C is nowhere to be found at this point). The

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investigating officer is convinced that the bakkie found at B’s residence is the
‘same one’ that was used in the robbery, and decides to ‘confiscate’ it for forensic
analysis, and for ‘other investigations’.

Discuss the legality or otherwise of H’s actions in the light of,

(a) the general desirability and preferability for the use of search warrants as
discussed in Chapter 9, par. 4 of the prescribed textbook; (1)

Although it is desirable and preferable that a search should be conducted in

accordance with a search warrant, it is conceivable that circumstances may arise
where the delay in obtaining such warrant would defeat the object of the search.

In terms of s 22(a) a police official may search any person, container or premises for

the purpose of seizing any article referred to in s 20, if the police official believes, on

reasonable grounds

(b) whether, in your view, the vehicle seized by the investigating officer falls within
the ambit of articles which may (legally) be seized under section 20 of
Criminal Procedure Act 51 of 1977; (3)

In terms of s 20 of the CPA the following articles are susceptible to seizure during a
search:
1) Articles which are concerned in or are on reasonable grounds believed to be
concerned in the commission or suspected commission of an offence, whether within
the Republic or elsewhere;
2) Articles which may afford evidence of the commission or suspected commission of
an
offence, whether within the Republic or elsewhere; or
3) Articles which are intended to be used or are on reasonable grounds believed to be
intended to be used in the commission of an offence.

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I believe that it does fall within the ambit of articles which may be legally seized in
terms of Point 1 above .

(c) the efficacy of the actions of the investigating officer in the context of section
22(a) of the Criminal Procedure Act 51 of 1977; (4)

In terms of s 22(a) a police official may search any person, container or premises for
the purpose of seizing any article referred to in s 20, if the police official believes, on
reasonable grounds,
1) That a search warrant will be issued to him under s 21(1)(a) if he applies for such
warrant; and
2) That the delay in obtaining such warrant would defeat the object of the search.
The items which were seized by the investigating officer, in our set of facts, conform
to those referred to in s 20.
X, therefore, acted within the confines of his powers in seizing the vehicle so that he
could do further investigations on it as there might have also been a risk that if left
behind, the vehicle could be moved away or hidden from the police.

(d) the most viable conclusion, in light of the aspects addressed in (a), (b) and
(c), above. (2)

A, B and C were involved in the robbery.

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SECTION 3

3.1 W is one of the persons who witness a murder. For reasons currently unknown, W
is not willing to testify in the matter on the date scheduled for the trial. A, who is the
deceased’s brother D, is of the view that he (A), should be able to compel W’s
appearance in the subsequent trial.

Discuss A’s reasoning in light of the following aspects, namely,

(a) the official document which may be used to compel W to attend the
court proceedings; (1)

Summons
(b) whether A is competent (in law) to serve the document referred to in (a)
above, and if not, who is/ are competent to do so; (2)

No, only a police official or court official may do this

(c) the consequences if W refuses to heed the service of the document referred
to in (a); and (1)

W will be guilty of offence in terms of section 188 if she fails to comply with the
summons (1) and sentence will be imposed in terms of section 170(2), imprisonment
for a period not exceeding three (3) months or imposition of fine not exceeding R300.

(d) the relevant course of action to be pursued if W heeds the document

mentioned in (a) above, but refuses to testify in court. (2)

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If W complies with the provision of the summons but refuses to testify, she will be
guilty of an offence in terms of section 189(1) unless she can convince the court that
she has a valid excuse not to testify. In terms of the Witnesses Protection Act 112 of
1998, if W qualifies for protection under this Act, she will be placed under temporary
protection by the state and since there is an imminent threat for her security of
person, or threat to her life, she will be afforded protection by the state. Note that if W
is under 18 years of age, the provisions of section 170A, which provide for testimony
through an intermediary, may also be applicable.

3.2 After the first state witness has given evidence, the attorney, D, prepares to re-
examine the witness. Provide a brief explanation of the process of re-examination
with specific reference to:

(a) the party who may conduct re-examination; (1)

It is conducted by the party who initially called the witness.

(b) the purpose and content of re-examination; and (3)

It is in principle confined to matters covered in cross-examination. The

rules which govern examination-in-chief apply and leading questions may therefore
not be put. New matters (that is, matters not initially covered in evidence-in-
chief) may not be introduced in re-examination without the permission of the
court, who should then permit cross-examination on such new matters
introduced in re-examination

(c) whether D is, indeed, competent to conduct re-examination in the

circumstances sketched above. (2)

No, he is not. Cross-examination of a State witness is followed by the prosecutor’s

re-examination, if indeed such re-examination is necessary

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3.3 The prosecutor, P, presents what can objectively be described as a ‘strong case’
against the accused, A. At the close of the prosecution case, D, A’s attorney
advises him that the best course of action is to ‘remain silent …. and not to give any
evidence in defence
… as he might incriminate himself’.

Discuss: the feasibility of D’s strategy and its procedural consequences in light of
the facts set out above. (6)

Hints:
i. The content to your answer must be sought from p. 383. Par. 5, of the
prescribed textbook;
ii. You are expected to integrate your reasoning and conclusions into the
content referred to in (i), above; and
iii. Mere regurgitation of the content of the prescribed Handbook without following
the prescripts set out in (ii), above will not result in the awarding of marks.

implications. His position as full legal subject in the modern criminal process also implies
that he cannot be tried if he is mentally unable to understand enough to participate
meaningfully and to communicate with his lawyer. If a person has certain rights, obviously he
should not be penalized for exercising those rights, otherwise the rights in reality amount to
nothing at best and to liabilities or traps at the worst.
In this set of facts, it is best that he exercises this right as the prosecutor already has a
strong case against him. Also related to the presumption of innocence is the rule that
an accused can never be forced to testify; he has a right to silence, which is also
called his privilege against self- incrimination or his right to a passive defence. An
accused can remain silent even if his answers would not be self incriminating.
This applies to the pre-trial stage, the trial phase and also the sentencing stage.
Accordingly, the Constitution guarantees the right of every arrestee to remain silent
and not to be compelled to make a confession or admission which could be used in

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evidence against him or her (s 35 (1)(c), as well as the right of every accused to
remain silent and not testify during the proceedings.
The accused is a full legal subject, and as such he is entitled to participate in his trial
according to his own autonomous decisions and to be assisted, if he so wishes, by a
legal representative. If he is unrepresented, he should at all crucial decision-making
or option- choosing stages in the process be informed of his rights and options, as
well as their

3.4 At the close of the defence case, the magistrate, M, convicts A on a charge of
fraud, and adjourns the matter for sentence. Before the next appearance (for
sentencing) M realizes, when going through the evidence, in preparation for
sentence, that she should, in fact, have acquitted A, and not convicted him. She
thereupon proceeds to amend the conviction to an acquittal.

Briefly discuss whether M is competent, under South African law, of amending

the conviction as set out in the facts above. (6)

Hints: the content of your answer must,

i. be sought from chapter 18 of the prescribed textbook;
ii. be confined only to the aspects referred to in the set of facts.
iii. address itself to the applicable principles as (in respect of the amendment by
a court of its own verdict) contained in the Criminal Procedure Act 51 of 1977,
and also to
iv. your conclusion on the facts.

The common-law principle is that a court is functus officio once it has delivered its
judgment. This means that the court itself may not alter or revoke its verdict. See

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generally Chauke 2010 (1) SACR 287 (GSJ). Section 176 of the Act creates a very limited
exception to this principle. This section provides as follows: ‘When by mistake a wrong
judgment is delivered, the court may, before or immediately after it is recorded, amend
the judgment.’ Section 298 of the Act contains a similar provision in respect of the
sentence passed by the court.
Section 176 does not entitle a trial court to amend a verdict given as a result of a
misdirection or incorrect procedure
Section 176 is primarily aimed at the situation where a court intends to pronounce a
verdict of guilty, for example, of theft, but inadvertently announces a verdict of guilty of
robbery—and then wishes to rectify this mistake.
There is a common-law rule which permits a court to effect linguistic or other minor
changes to its judgment as pronounced, without changing the outcome or substance
thereof (Wells 1990 (1) SA 816 (A)). Section 176 must be read in conjunction with this
common-law approach (Maifala 1991 (1) SACR 78 (BA)).

In this set of facts, the magistrate is not competent to amend this herself based on the
above requirements

SECTION 4

4.1 The magistrate, M, convicts the accused, X, of assault. The facts of the case
revolve around X slapping Y across the face with an open hand (‘a klap’). The
prosecutor P, argues for a harsh sentence against X, and presents a record of
previous convictions against X, of a similar offence (assault) committed 11 years
earlier. In her sentencing, M takes into account the previous conviction against X as
an aggravating factor, proving X’s ‘blatant disregard for the law’, and sentences
him to 5 years imprisonment.

Briefly discuss the fairness or otherwise of M’s sentence, in the context of South
African sentencing jurisprudence.

The content of the answer must address the following aspects, namely,

(a) the relevance or applicability (in one simple sentence), or otherwise of

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previous convictions in sentencing proceedings, as enunciated in chapter 19,

par. 8 of the prescribed textbook; (2)

A person who is convicted time and again of similar offences will progressively be

punished more severely. This is because the offender, by continuing to commit

offences, displays a disregard for the law and because it is believed that the heavier a
penalty is, the more likely it is to deter the offender from committing more crime.

(b) the fairness or otherwise of M’s sentence, in the context of section 271A of
the Criminal Procedure Act 51 of 1977, as set out in chapter 19, par. 6.2; (5)

according to the provisions of s 271A of the Criminal Procedure Act, which come into
operation automatically in respect of previous convictions which fall away if a period
of 10
years has elapsed in respect of sentences of less than six months, or more than six
months but where the execution of the sentence was suspended without a sentence
being imposed. In this set of facts , the prior conviction was 11 years ago and
therefore the provisions of s271A of the CPA should apply , and therefore M should
not have been judged so harshly of previous convictions.

NB: for the purposes of this question, you should assume that the previous
convictions against X were duly presented and proved by the prosecution, and
admitted by the court. So, the need to discuss the procedure relating to the
admission of previous convictions into the record (as discussed in the first
paragraph of 6.2) does not arise, and no marks will be awarded for such
discussion.

(c) the lawfulness of M’s sentence on X in the context of the district court’s

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sentencing jurisdiction, as discussed in chapter 2 of the prescribed textbook.

(3)

an offender who has been convicted of , assault may be sentenced to a maximum of

three years’ imprisonment on every count by a district court . Therefore the
sentencing was unlawful

NB:

i. the answers (a) and (b) above must be sought from chapters 19, whereas
information in respect of (c) must be sought from chapter 2 of the prescribed
textbook;
ii. every answer must be accompanied by a conclusion for which you will be
awarded marks; and
iii. you will not receive marks for the mere word-for-word recitation of information
from the prescribed textbook, which does not offer contextual analysis to the
question asked.

4.2 M, a district court magistrate, convicts X of housebreaking and theft. X is

dissatisfied with the manner in which the conviction was arrived at, and instructs
D to ‘set matters right by appealing this case’.

Discuss X’s chances of success based on the law and on the facts above.

X’s court papers as prepared by D, are accompanied by the following facts, namely,

(a) The application is lodged in a regional court within which X was convicted by M;
(1)
No success. The courts decision needs to be appealed at a higher court

(b) X alleges in the submissions that ‘M did not give him (X) sufficient opportunity
to present his case’; (2)

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Review in terms of section 306. This procedure allows an accused, irrespective of

whether or not he was legally represented at his trial, to present his case through the
automatic review procedure by submitting written heads of argument. This gives the
accused the benefit of review without incurring any additional expenditure.

(c) The judgment by M was ‘substantively’ incorrect; (1)

As an Appeal is concerned with the substantive correctness of the decision made by the
court, X may have a chance with this

NB: the answer must contain the basic principles entailed in the legal process
advanced in the facts above, including your own conclusion for which two marks
will be awarded

(d) Your own conclusion. (2)

X cannot appeal the decision at the same court (district court) however, he may have
a chance with his arguments in b and c above.

Hints: the content of your answer must

i. be sought from chapter 20, par. 2, of the prescribed

textbook
ii. be strictly confined to the issues addressed in the facts
above

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2023
CPR 3701
ASSIGNMENT 1
CRIMINAL
SEMESTER 2
PROCEDURE
QUIZ
QUIZ DUE 31 AUGUST 2023

Varsity
Assist
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Choose the INCORRECT answer from the following statements Criminal procedure does not regulate

executive action such as mercy and free pardon

the processes of appeal and review
none of the options is correct
the rights of suspects and arrested and accused persons
the duties and powers of the criminal courts

Question 2
Not yet answered

Marked out of 1.00

Choose the CORRECT answer from the following statements

a. The punitive model puts emphasis on the prevention of crime and restorative justice
b. The process of restorative justice essentially stresses the invocation of formal criminal sanctions
c. Only the in-put of the investigating officer and the probation is required to secure restorative justice
d. The process of restorative justice involves a process that seeks to avoid the invocation of the formal criminal sanctions
e.
The punitive model of victims’ rights is less concerned with the traditional criminal sanctions

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Assessment 1:

Question 3
Not yet answered
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Only the Constitutional Court has the jurisdiction to decide the constitutionality of any legislation or any conduct of the President
An appeal from a lower court can only be adjudicated upon by a single judge
The regional court has appeal and review jurisdiction in respect of criminal proceedings emanating from the district court
A regional court magistrate may adjudicate over an appeal
An appeal may be adjudicated upon by either two or three judges

Question 4
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a.
In general, a periodical court has the same jurisdiction as a district court

The Supreme Court of Appeal is a court of appeal only, and not a court of first instance
The High Court has the jurisdiction to decide the constitutionality of any legislation or any conduct of the President
The Constitutional Court makes the final decision on whether a matter is within its jurisdiction
Lower courts have the jurisdiction to enquire into or rule on the constitutionality of any legislation, or on any conduct of the President

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Question 3
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A regional court may try all crimes except high treason

A regional court may try the crime of high reason
A regional court may not try the crimes of murder and rape
A district court may try the crime of murder
A district court may not try serious offences against the state

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Question 4
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a. An offence committed by a South African citizen in Antarctica is justiciable in the USA.

b. In general, the courts of the Republic of South Africa can exercise jurisdiction in respect of offences committed outside South African territory
c. A hijacking committed on board a foreign aircraft is justiciable in South Africa if such aircraft lands in the Republic with the offender still on board
d.
A South African court has no jurisdiction to hear a charge of theft committed in a foreign state

e. An offence committed on board a South African aircraft is only justiciable in the country where the aircraft subsequently lands

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Question 5
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a. A court cannot review prosecutorial discretion on any ground

b.
A court cannot interfere with prosecutorial discretion, even where the prosecuting authority exceeds its powers

A prosecution may be deemed wrongful where it is instituted for an improper purpose

The prosecuting authority’s decision to decline to prosecute can be reviewed on constitutional grounds
The prosecuting authority’s decision to decline to prosecute cannot be reviewed on constitutional grounds

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Question 6
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a. In South Africa, an accused can, as of right, demand to be defended by an attorney or advocate

b.
In South Africa, legal representation is not a Constitutionally-entrenched right

c. The right to legal representation may be extended to witnesses, in appropriate instances

d. Where Legal Aid is provided for an accused by the State, the accused does not have any choice on the identity of the legal representative
e. In South Africa, legal representation is a Constitutionally-entrenched right

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Question 7
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a. The word ‘grounds’, as it relates to the determination of ‘reasonableness’ refers to mere perceptions
b.
A person will only be said to have ‘reasonable grounds’ to believe or suspect something, or that certain action is necessary, if they actually see it with their
own eyes

c. The test applied to determine ‘reasonableness’ is objective

d. The word ‘grounds’ means that one must look at the facts as one may think that they are

e.
Mere belief or suspicion of the existence of certain facts sufficiently qualifies such belief or suspicion as one based on ‘reasonable grounds’

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Question 8
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Choose the INCORRECT answer from the following statements The principle of legality

requires the state not to exercise power unless the law permits it to do so
is not applicable to substantive and procedural criminal law
requires organs of state to obey the law
requires laws to be clear and accessible
is one of the pillars of the rule of law

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Question 9
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a. A written notice to appear does not always offer the accused the option of paying an admission of guilt fine to avoid a court appearance
b. A summons is prepared by the prosecutor, and issued by the clerk of the court
c. A child-accused cannot be issued with a written notice to appear in respect of a preliminary inquiry
d. A summons must always provide the option of paying an admission of guilt fine to avoid a court appearance
e. An indictment is used for the accused’s appearance in the regional court

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Question 10
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Wider powers of arrest are conferred in respect of a person who is merely suspected of committing an offence than one caught in flagrante delicto
Arrest may only executed through a warrant
Arrest remains lawful even if its main object is to frighten or harass the suspect rather than to bring them before court
A child-suspect may not be brought to court through a summons
A child-suspect may not be brought to court through written notice

Question 13
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Arrest is only permissible if carried out through the authority of a warrant

A private person may not use force in effecting arrest
A private person does not have the authority to arrest a suspect
Arrest is only authorized in exceptional circumstances
A bad motive for arrest makes an otherwise lawful arrest, unlawful

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Question 14
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A suspect has the right to remain silent, which includes the right not to furnish their name to the police upon request
The need for special powers of interrogation does not exist under any circumstances
The only common-law offence in respect of which such a legal duty exists to provide information is murder
The only common-law offence in respect of which such a legal duty exists to provide information is high treason
The need for special powers of interrogation arises only in special circumstances, such as when the accused is in custody

Question 15
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A police officer may ascertain any mark, characteristic or other distinguishing feature of the suspect
None of the options is correct
A person’s handwriting is the creation of a learned ability and cannot be described as a bodily feature or characteristic
A police officer does not have the power to take a blood sample
Only medical practitioner or district surgeon or registered nurse may extract a blood sample

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Question 16
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There is no instance in South African law where a statute imposes a general legal duty on every person to furnish information regarding the commission of
an offence to the police
There is a general legal duty on every person to furnish information regarding the commission of an offence to the police
There is no general legal duty on every person to furnish information to the police regarding the commission of the crime of murder
There is a general legal duty on every person to furnish information to the police regarding the commission of the crime of high treason
There is no legal duty on every arrestee to furnish their full name and address

Question 17
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An article which may afford evidence of the commission or suspected commission of an offence may be seized by the state
A document under legal professional privilege may be handed in to the court without the consent of the client
An article which is on reasonable grounds, believed to be concerned in the commission or suspected commission of an offence may be seized by the state
An article which is on reasonable grounds intended to be used in the commission of an offence may be seized by the state
Only the holder of the privilege may relinquish such privilege

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Question 13
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A search warrant may be authorized

by a prosecutor
by a magistrate in chambers
by a judge or a magistrate in chambers
by a judge or magistrate in criminal proceedings
by a judge in chambers

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Question 14
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Both private persons and police officials are empowered to conduct searches or to seize objects with a warrant
A copy of the warrant should, whenever possible be provided after the search and/or seizure
Only police officials are empowered to conduct searches or to seize objects with a warrant
Private persons are empowered to conduct searches and to seize objects with a warrant
Police officials are only empowered to conduct searches and to seize objects with a warrant

Question 20
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Prosecutorial bail can only take place before an accused’s first appearance in a lower court
A bail application in respect a Schedule 6 offence must be considered by a magistrates’ court
An accused is entitled to apply for bail in court during their first appearance
An application for bail on new facts must always be brought before the court hearing the appeal for refusal of bail
Release on police bail can only take place before an accused’s first appearance in a lower court

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Question 15
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Failure by the accused to attend criminal proceedings constitutes a punishable criminal offence
Where the accused fails to adhere to the bail conditions, the court can only forfeit the accused’s bail to the state after hearing evidence from the accused and
the prosecutor
Bail money must, at the conclusion of the case, be refunded only to the accused
A third party may pay bail money on behalf of an accused
The cancellation of bail may be affected by the court at the request of the accused

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Question 16
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a. The personal opinion of a director of public prosecutions may be considered by the court in its determination of bail

Only oral evidence is admissible in bail applications

Hearsay evidence is received more readily in a bail application than in a criminal trial
Bail proceedings in South African criminal proceedings are essentially inquisitorial in nature
The court may rely on the opinion of the investigating officer regarding the fact whether the accused will interfere with state witnesses

Question 23
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Choose the CORRECT answer from the following statements

a.
A charge sheet is generally prepared by the court
b. In High Court proceedings an accused may be brought before the court through a charge sheet
c. A summary trial in a lower court is commenced by lodging an indictment with the clerk of the court
d. In the case of written notice or arrest, the accused may be required to appear in court upon very short notice
e. The service of a summons upon an accused must take place at least 7 working days before the day of trial

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Question 24

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If the accused is charged with the offence of driving a motor vehicle without a licence, the fact that the accused did not possess a licence does not constitute
a substantial element of the relevant offence
Section 88 of the Criminal Procedure Act authorises replacement of one offence with another offence proved by evidence
Section 88 of the Criminal Procedure Act requires a defect in the charge to be cured by the court
Section 84(1) of the Criminal Procedure Act specifically requires that all the elements of the offence should be mentioned in the charge
A defect in the charge sheet can be cured by the mere invocation of statutory provisions and presumptions

Question 25
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The decision whether there ought to be a separation of trials lies with the prosecution
A joinder of accused may not take place after the trial has commenced
Additional charges can be joined after the questioning of the accused has commenced
In practice the prosecutor usually charges the accused with the least serious crime as main charge, and the more serious offences as alternative charges
The person applying for a separation of trials must show that there is a possibility that a joint trial will result in unfair prejudice

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CPR3701 Assignment 2 Semester 1

2023

STUDENTS PLEASE NOTE THAT QUESTIONS MAY BE RE SHUFFLED BY THE SYSTEM ,

PLEASE READ QUESTIONS CAREFULLY BEFORE SUBMITTING AN ANSWER, ALSO DOUBLE
CHECK IF THEY ARE ASKING FOR THE CORRECT OR INCORRECT ANSWER FROM THE
CHOICES PROVIDED

QUESTION 1

In the regional court at the trial of an accused on a charge of murder,

a. A failure to consider the use of assessors constitutes a serious

irregularity even where the accused had agreed to dispense with
assessors
b. Assessors must be appointed before the leading of evidence.
c. It is optional for the magistrate to sit with one or two assessors.
d. It is peremptory for the magistrate to sit with one or two assessors.
e. The court may exercise its discretion to use assessors even where the accused
waives the right to have assessors

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 259

A failure to give consideration to having assessors constitutes a serious irregularity even
where the accused had agreed to dispense with assessors—Mitshama 2000 (2) SACR 181
(W).

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QUESTION 2

Choose correct:

a. Where the court sits with 2 assessors and an assessor dies or becomes
incapable of performing their duties as assessor, the remaining members of the
court become functus officio
b. Where the court sits with 2 assessors and an assessor dies or becomes
incapable of performing their duties as assessor, the presiding judge may acquit
the accused summarily
c. In the court, the presiding judge has a discretion on whether to sit with
assessors in murder cases
d. In high court the presiding judge has a discretion on whether to sit with
assessors in murder cases
e. The assessor’s competence or lack thereof can be established subjectively

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 260

Criminal cases in the High Court are tried either by a judge sitting alone or by a judge and
one or two assessors. The presiding judge generally has a discretion whether or not to sit
with assessors.

QUESTION 3

The test for judicial bias essentially requires that,

a. The suspicion of bias must be based on foreseeable grounds

b. There must be a suspicion that the judicial officer would be, not might be, biased
c. The suspicion of bias must be that of any reasonable person
d. The suspicion of bias must be one which is the reasonable person referred to
might, not would, have held
e. The suspicion must be that of a reasonable person in the position of the
accused.

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 263

The requirements of the test for the presence of judicial bias are:
There must be a suspicion that the judicial officer might be, not would be, biased.

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The suspicion must be that of a reasonable person in the position of the accused.

The suspicion must be based on reasonable grounds.

The suspicion must be one which the reasonable person referred to would, not might,
have held.

QUESTION 4

The court must enter a plea of not guilty.

a. If when called upon to plead to the charge, it appears to be uncertain whether

the accused is capable of understanding the proceedings at the trial based on
the accused’s mental state
b. If the accused does not plead directly to the change but makes an exclusory
statement in which the accused admits certain facts and denies others.
c. If the accused refuses to plead or answer directly to the charge
d. Where, on being required to plead, the accused refuses to do so because the
accused has not been furnished with further particulars
e. If the accused pleads guilty to the charge

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 277

The court shall enter a plea of not guilty if the accused will not plead or answer directly to
the charge—Monnanyane 1977 (3) SA 976 (O).

QUESTION 5

Traditional plea bargaining

a. is essentially formal in nature

b. does not entail a binding agreement in respect of the facts and the sentence to be
imposed on the accused

c. binds the prosecution in accordance with the basic notions of fairness and
justice.
d. is essentially informal in nature.
e. does not entail the defence and the prosecution holding the court to an

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agreement on sentence

Criminal Procedure Study Guide – Page 49

TRADITIONAL PLEA BARGAINING

Informal in nature

QUESTION 6

In respect of statutory plea bargaining

a. The agreement must be in writing

b. The agreement must be entered into before the commencement of the trial
c. The agreement must be entered into after the commencement of the trial
d. The agreement does not apply to a charge or charges on acceptance of plea
during trial
e. The prosecutor can reach an agreement with the defence on the sentence to
be imposed

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 283

Certain mandatory formalities are prescribed, such as that the whole agreement must be in
writing.

QUESTION 7

Choose the correct

a. The trial court must examine each applicant broadcast proceedings using an
objective test
b. When determining an application to broadcast proceedings speculation that
prejudice might occur is sufficient to decline the application
c. The broadcasting of court proceedings cannot be taken to apply generally
without an order by the court allowing to it
d. In application for the broadcasting of proceedings, the court must
balance the exceptional circumstances involved in allowing the cameras
into the courtroom against the degree of interest shown by the public in

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the case
e. In the spirit of openness, the court does not have the discretion to disallow
regarding the broadcast of proceedings before it

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 314

However, while recognising that the open court principle is not absolute, given the potential
conflict with the demands of privacy, security and protection, the question is how the courts
have to balance the constitutional rights of an accused on the one hand and protecting the
interests of the administration of justice, vulnerable witnesses and children on the other hand

QUESTION 8

Choose correct!

a. Once the public has been excluded from a trail in terms of section 153 of the
CPA, the court may under no circumstances relax the conditions of exclusion

b. In terms of section 153(1) of the CPA, a court is empowered to exclude

the public from the proceedings.
c. In terms of section 153 (1) of the CPA, a court is under no circumstances
empowered to exclude the public from the proceedings
d. In terms of section 63 (5) of the child justice act, if the court finds it to be just
and equitable and in the interest of the child, the court may allow the publication
of all the information relating to the trial
e. In terms of section 153(2)(a) only the identity of the child accused is protected
from disclosure

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 315

In terms of s 153(1) of the Criminal Procedure Act all courts are empowered to exclude the
public from their proceedings whenever it appears to be in the interests of the security of the
State or of good order, public morals, or the administration of justice

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QUESTION 9

Choose incorrect!

a. A witness may be permitted to use or adopt a pseudonym for the purposes of

the trial
b. No person may be present at any session of a child justice court unless their
presence is necessary in connection with the proceedings of that court
c. A person may be present at any session of a child justice court without
the permission of the presiding office
d. Persons under the age of 18 are not entitled to attend any criminal trial unless
they are actually giving evidence
e. In terms of section 158(5) of the CPA, a court must give reasons for not allowing
a child below the age of 14 years to give evidence by means of closed-circuit
television or similar electronic media.

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 315

The best interest of a child offender is paramount and hence no person may be present at any
sitting of a child justice court unless his or her presence is necessary in connection with the
proceedings of that court, or the presiding officer has granted him or her permission to be
present—s 63(5) of the Child Justice Act

QUESTION 10

Choose incorrect!

a. A recalcitrant witness in a criminal trial is someone who refuses to take the oath
or refuses to answer questions
b. Section 189 of the CPA requires a potential witness to proffer a reasonable
excuse for refusing to answer questions.

c. Either the prosecutor or the accused may compel the attendance of witnesses
by a way of subpoena
d. A postponement refers to the period before the hearing starts, whereas an
adjournment usually refers to a hearing that is already underway.

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e. The refusal to answer questions during a criminal trial empowers the

court in terms of section 189 of the CPA sentence such a person to a
sentence of imprisonment

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 317

s 189 empowers the court to institute a summary enquiry, and if such a
person does not have a ‘just excuse’ for his refusal, he may be sentenced to a maximum
imprisonment of 2 years or, where the criminal proceedings relate to an offence referred to in
Part III of Schedule 2, to imprisonment for a maximum of five years

QUESTION 11

Choose correct!

a. Generally, persons charged on the same day should in the interests of justice be
joined as co-accused in one trial
b. The prosecution’s decision not to join a co-accused in a trial of the same offence
infringes established criminal procedural rules, and renders the trial unfair
c. The presiding officers as a ‘referee of the proceedings’ must direct the manner in
which the prosecutor conducts their trial for example, the sequence in which
witnesses are called by the state
d. A perpetrator complies with all the definitional elements of the crime.
e. A perpetrator and an accomplice do not denote the same person as far as the
elements of the crime are concerned.

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 325

Broadly speaking, it can be said that a perpetrator (or co-perpetrator) satisfies all the essential
requirements for liability as set out in the definition of the crime,

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QUESTION 12

The joinder of accused in the same criminal proceedings may take place

a. Before an inspection in loco is conducted

b. After the tendering of a plea explanation in terms of section 115 of the CPA
c. At any time after evidence had been led in respect of the charge in question
d. After questioning in terms of section 112 (1)(b) of the CPA
e. At any time before any evidence is led in respect of the charge in question

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 325

Joinder of accused in the same criminal proceedings may take place ‘at any time before
any evidence has been led in respect of the charge in question’

QUESTION 13

Choose correct!

a. A non-joinder is generally regarded ad leading to an unfair trial

b. The prosecutor decides on whether accused persons should be joined
to a single trial
c. In terms of section 155 (2) of the CPA, the complainant in respect of property
obtained by means of an offence is regarded as a participant in the commission
of the offence
d. The court decides on whether accused persons should be joined to a single
trial
e. Joinder is generally regarded as imperative and not permissive

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 255

Section 156 provides that whenever it is alleged in a charge that two or more persons
have committed separate offences at the same place and time, or at about the same time,
and the prosecutor informs the court that any evidence which is in his opinion admissible at
the trial of one of those persons is in his opinion also admissible at the trial of the other
person or persons, such persons may be tried jointly for those offences on that charge.

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QUESTION 14

The right to a fair trial

a. Encompasses the right to legal representation at state expense, if needs be

b. Extends beyond the list of specific rights identified in section 35(3)(a-o)

of the constitution
c. Requires informed participation by the unrepresented accused
d. Includes the right to be furnished with a reasonable explanation for a conviction
e. Extends to the whole society

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 255

The right to a fair trial embraces more than what is contained in the list of specific
rights identified in s 35(3)(a)-(o) of the Constitution (Veldman v Director of Public
Prosecutions, WLD 2006 (2) SACR 319 (CC) at [22]-[23]).

QUESTION 15

Cross examination

a. May be reserved by the court on good grounds shown

b. Can be conducted by both prosecution and the defence
c. Is essentially conducted to elicit facts favourable to the cross-examiners
case
d. May only be conducted by the defence.

e. Is not confined to issues raised by the witness during examination-in-chief.

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 339

The purpose of cross-examination is to elicit facts favourable to the cross-examiner’s

case. Cross-examination is therefore not confined to matters raised by the witness in his
evidence-in-chief

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QUESTION 16

In terms of the rules of criminal procedure, re-examination – CHOOSE INCORRECT

a. Is confined to matters raised and covered during cross-examination

b. Precedes cross-examination
c. May be conducted by both the prosecution and the defence.
d. Is conducted by the party which called the witness in the first place
e. Succeeds cross-examination.

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 339

Re-examination
Re-examination follows cross-examination. It is conducted by the party who initially
called the witness. It is in principle confined to matters covered in cross-examination. The
rules which govern examination-in-chief apply and leading questions may therefore not
be put. New matters (that is, matters not initially covered in evidence-in-chief) may not
be introduced in re-examination without the permission of the court, who should then
permit cross-examination on such new matters introduced in re-examination.

QUESTION 17

Choose incorrect!

a. An intellectually impaired person may be admonished by the court to speak the

truth
b. An oath may only be administered by the court.
c. Admonishment to speak the truth has the same force and effect in respect of a
witness who does not understand the nature and import of the oath
d. A prosecutor may administer the oath in the absence of the presiding officer
e. An affirmation is regarded as a substitute for the oath in circumstances where
a witness objects to taking the prescribed oath

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 339

The prosecutor may not administer the oath (Bothma 1971 (1) SA 332 (C)).

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QUESTION 18

Choose correct!

a. A conviction on the competent verdict must be regarded as an acquittal

on the original charge.
b. The main charge must be proved beyond any reasonable doubt whereas the
competent verdict must be established on a balance of probabilities
c. A conviction on the competent verdict must be regarded as a conviction also
on the original charge

d. A competent verdict is possible even where it is not expressly provided for

statutorily.
e. Where the express charge is not proved by the prosecution, the court may still
resort to a competent verdict without relying on any statutory provision, in order
to serve the interests of justice

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 353

A conviction on a competent verdict must be regarded as an acquittal on the original
charge. See Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431
(SCA) at [7]-[9].

QUESTION 19

Choose correct!

a. A trial court’s findings of fact are, in the absence of a demonstrable and material
misdirection by the trial court, presumed to be correct, unless the presiding
officer presumes otherwise
b. Only a magistrate and not a judge is required to give reasons for any
conclusions reached by them in respect aby questions of law or fact
c. An ex tempore judgement is a verdict which is given on appeal
d. A judge is required to give reasons for any conclusions reached in

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respect any question of law or fact.

e. In a judgement, proper reasons essentially imply the mechanical regurgitation
of evidence given in court.

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 351

In terms of s 146 of the Act a judge is required to give reasons for any conclusions
reached by him or her in respect any question of law or fact—Maake 2011 (1) SACR 263
(SCA) at [24].

QUESTION 20

Choose correct!

a. In sentencing terms, a caution does not constitute a valid sentence.

b. Punishment is always manifested in the form of a sentence.
c. South African courts generally enjoy limited sentencing discretion
d. The case of S v Zinn 1969 (2) SA 537 (A) enjoins courts to employ a
subjective analysis to sentencing
e. Retribution remains an integral sentencing consideration despite the courts’
duty to consider deterrence, prevention and rehabilitation.

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 376

The process which should ensure that every sentence fits the criminal as well as the
crime and is fair to society is known as personalisation (or individualisation) of
punishment. This process is considered to be the main reason for leaving sentencers with
such a wide discretion.

QUESTION 21

Minimum sentences

a. Do not apply to offenders under the age of 18 years.

b. Apply only in respect of serious offences, murder and rape.
c. Apply where the court finds the existence of exceptional circumstances which

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justify a lesser offence

d. Apply where the court finds the existence of compelling and substantial
circumstances which justify a lesser offence.
e. Should apply as the point of departure and not departed from lightly

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 378

The prescribed minimum sentences are not applicable to an offender who was under
the age of 18 years when the offence is committed.

QUESTION 22

Choose the INCORRECT answer from the following statements

a. The accused must, without exception, only be sentenced by the judicial officer
who convicted them in the first place
b. An address by the accused on sentence should not include facts
c. In criminal trials previous convictions must only be proved after
conviction
d. Any judicial officer may pass sentence after consideration of the evidence if the
original judicial officer who convicted the,accused is not available
e. Youth generally is generally regarded as a mitigating factor in sentencing
proceedings

Criminal Procedure Study Guide – Page 76

The process of deciding on an appropriate sentence for the accused is set in motion by the
prosecutor, who submits a list of the previous convictions of the accused. If the accused
denies the previous convictions, the matter must first be proved and decided before the
process can continue

QUESTION 23

Choose correct!

a. Review and appeal may be lodged simultaneously in respect of the same

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merits and/or proceedings

b. Due to their different emphasis, review and appeal may be not lodged
simultaneously in respect of the same merits and/or proceedings
c. A review is concerned with the substantive accuracy of the proceedings.
d. Appeal is concerned with the procedural accuracy of the proceedings.
e. A review is concerned with aspects such as the incorrectness of the judgment.

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 422

If a party wishes to attack the proceedings on one or more grounds of review and also the
correctness of the magistrate’s findings on the facts or the law—or both—he may appeal
and apply for review—Ellis

QUESTION 24

Choose correct!

a. The expungement of criminal records in south African law is sanctioned by the

common law
b. Every person has the right to be pardoned in south African law
c. A pardon may not be reviewed by the courts.
d. The function of pardoning is prerogative of the Minister of Justice
e. Criminal records may be expunged automatically, or on application by the
person concerned.

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 422

Apart from the provisions of s 271A of the Criminal Procedure Act, which come into

operation automatically in respect of previous convictions which fall away if a period of 10

years has elapsed in respect of sentences of less than six months, or more than six

months but where the execution of the sentence was suspended without a sentence

being imposed; and apart from the provisions of s 271C(1) dealing with pre-constitutional

convictions of certain offences in respect of which criminal records are automatically

expunged, the provisions of ss 271B(1) and 271C(2) of the Criminal Procedure Act

require that persons convicted must in writing, on the prescribed form, apply for

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expungement of their criminal records in respect of either certain sentences which qualify

for expungement after a period of 10 years has elapsed, or convictions for contraventions

of provisions which were created in the former self-governing territories before the

commencement of the interim Constitution of 1993.

QUESTION 25

The expungement of sentences may be effected, choose incorrect answer

a. Automatically in respect of all offences
b. On application by the person concerned
c. Automatically in respect of certain offences
d. Only through legislative injunction
e. After a fixed period of time

Reference : Criminal Procedure Handbook 12th Ed (E Book) Page 507

As indicated above, expunging a criminal record for a conviction and subsequent

sentence for an offence is an executive action. The legislator may, however, promulgate
legislation to expunge certain criminal records relating to specific convictions and or
sentences. Such expungement may be effected—
automatically (regarding convictions for offences committed in terms of legislation
before the current constitutional dispensation—for example, offences committed in
terms of s 11 of the Internal Security Act 44 of 1950—cf s 271C(1) of the Criminal
Procedure Act); or on application by the person concerned (for infractions of legislation enacted by the
former self-governing territories before the Constitution of the Republic of South
Africa, Act 200 of 1993, took effect, which legislation created offences based on
race, or created offences which would not have been considered
offences in an open and democratic society, based on human dignity, equality and
freedom, under the current constitutional dispensation—s 271C(2); or
after a fixed period of time.

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2023 – ASSIGNMENT 1 – SEMESTER 1

QUESTION 1

Criminal procedural rules

a. cannot operate in isolation from the common-law and other constitutional

rights such as the right to life, human dignity, privacy, bodily integrity, etc.

b. determine the rights and duties of individuals and the state.

c. can operate in isolation from the common-law and other constitutional rights.

d. determine the prerequisites for criminal liability.

e. are also termed substantive rules

Reference : Criminal Procedure Handbook – 12th Ed – Page 10

Screenshot : It must be appreciated that criminal procedural rules—although

identifiable as adjectival law—do not, may not and cannot operate in isolation from
common-law and constitutional rights such as the right to life, human dignity, privacy,
bodily integrity, etc.

QUESTION 2

Substantive Law

a. does not constitute branches of law such as public and private law.

b. does not determine the elements of the offence allegedly committed.

c. determines the rules of criminal procedure

d. prescribes the elements that constitute, for example, the crime of fraud.

e. determines the evidentiary procedure of criminal trials

d. prescribes the elements that constitute, for example, the crime of fraud.

Reference : Criminal Procedure Handbook – 12th Ed – Page 10

Screenshot: Substantive criminal law, for instance, determines the prerequisites for
criminal liability (like unlawfulness, fault) and prescribes the elements of various
specific crimes (like theft, fraud or murder).

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QUESTION 3

Choose the CORRECT answer from the following statements

a. Only a regional district court has the jurisdiction to decide the issue of the granting

or denying leave to appeal to a High Court

b. A regional court has the jurisdiction to adjudicate over an appeal or review

from a district court

c. A district court has the jurisdiction to try all crimes except treason.

d. Only the High Court has the jurisdiction to decide the issue of the granting or

denying leave to appeal to a High Court

Reference : Criminal Procedure Handbook – 12th Ed – Page 359

Screenshot: Section 25(3)(h) of the repealed interim Constitution of the Republic of

South Africa, Act 200 of 1993, entrenched every accused person’s right to a fair trial,
which included the right to have recourse, by way of appeal or review, to a higher
court than the court of first instance.

QUESTION 4

Choose the INCORRECT answer from the following statements

a. Lower courts have no jurisdiction to enquire into or rule on the constitutionality of

any legislation or on any conduct of the President

b. The Constitutional Court makes the final decision on whether a matter is within its

jurisdiction

c. The High Court has the jurisdiction to decide the constitutionality of any legislation

or any conduct of the President

d. A periodical court has the same jurisdiction as that of a district court

e. The Supreme Court of Appeal is a court of first instance only.

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Reference: Criminal Procedure Handbook – 12th Ed – Page 35

Screenshot : The Supreme Court of Appeal is a court of appeal only and not a court

of first instance.

QUESTION 5

a. A regional court may try the crime of high reason.

b. A regional court may not try the crimes of murder and rape

c. A district court may try some serious offences against the state.

d. A regional court may only try the crimes of murder and rape

e. A district court may try the crime of murder

Reference: Criminal Procedure Handbook – 12th Ed – Page 38

Screenshot- District courts- A district court has jurisdiction to try all crimes except

treason, murder, rape and compelled rape. A district court may even try some

serious offences against the state.

QUESTION 6

Choose the INCORRECT option from the following statements

a. An offence committed by a South African citizen in Antarctica is justiciable in

South Africa

b. A South African court has no jurisdiction to hear a charge of theft

committed in a foreign state

c. In general, the courts of the Republic of South Africa only exercise jurisdiction in

respect of offences committed on South African territory

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d. A hijacking committed on board a foreign aircraft is justiciable in South Africa if

such aircraft lands in the Republic with the offender still on board

e. An offence committed on board a South African aircraft is justiciable in South

Africa.

Reference: Criminal Procedure Handbook – 12th Ed – Page 42

Screenshot: A South African court will have jurisdiction to hear a charge of theft

(which is a

continuing offence) committed in a foreign state—not because it is regarded as theft

inthe foreign country, but because an accused is regarded as continuing to

appropriate the stolen object with the necessary intention in South Africa—Kruger

1989 (1) SA 785(A).

QUESTION 7

Choose the CORRECT answer from the following statements

a. The conviction of an accused automatically bars the complainant from instituting a

civil action

b. A complainant of theft may still institute civil proceedings even where the criminal

court has ordered a convicted accused to pay compensation to the complainant or to

return stolen property

c. The fact that the victim has instituted a civil action to recover his losses

cannot prevent the criminal justice system from taking its course and

proceeding with a charge of theft

d. The acquittal of an accused automatically bars the complainant from instituting a

civil action

e. In a civil case emanating from the same facts as a parallel criminal proceeding,

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the applicant must prove their case beyond a reasonable doubt

Reference: Criminal Procedure Handbook – 12th Ed – Page 51

Screenshot: The fact that the victim has instituted a civil action to recover his losses

cannot prevent the criminal justice system from taking its course and proceeding with

a charge of theft.

QUESTION 8

Choose the CORRECT answer from the following statements

a. Where Legal Aid is provided for an accused by the State, the accused may

exercise a choice on the identity of the legal representative

b. In South Africa, an accused cannot as of right demand to be defended by an

attorney or advocate

c. In South Africa, an accused can, as of right, demand to be defended by an

attorney or advocate

d. The right to legal representation applies as of right in respect of certain offences

only

e. The right to legal representation is only confined to the accused, and does not

extend to witnesses in any given circumstance

Reference: Criminal Procedure Handbook – 12th Ed – Page 88

Screenshot: In South Africa, an accused could not always as of right demand that he

be defended by an attorney or advocate: it was only in 1819 that a proclamation was

issued providing that a person accused of a serious offence had the right, if he so

wished, to employ a legal practitioner to defend him (cf Wessels (above) at 91G-H).

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QUESTION 9

Choose the CORRECT answer from the following statements

a. The test applied to determine ‘reasonableness’ is subjective

b. The test applied to determine ‘reasonableness’ is not determined according to

objective considerations

c. Mere belief or suspicion of the existence of certain facts sufficiently qualifies such

belief or suspicion as one based on ‘reasonable grounds’

d. A person will only be said to have ‘reasonable grounds’ to believe or suspect

something or that certain action is necessary if they actually see it with their own

eyes

e. The word ‘grounds’, as it relates to the determination of ‘reasonableness’

refers to facts.

Reference: Criminal Procedure Handbook – 12th Ed – Page 115

Screenshot: The word ‘grounds’, as it is used here, refers to facts. This means that

there will only be ‘grounds’ for a certain suspicion or belief if the suspicion or belief is

reconcilable with the available facts.

QUESTION 10

The principle of legality

a. requires laws to be clear and accessible

b. is one of the pillars of the rule of law

c. requires laws to be clear in appropriate circumstances only

d. requires the state not to exercise power unless the law permits it to do so

e. requires organs of state to obey the law

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Reference: Criminal Procedure Handbook – 12th Ed – Page 113

Screenshot : The principle of legality is one of the pillars of the rule of law

QUESTION 11

Choose the CORRECT answer from the following statements

a. A summons is ordinarily used in respect of a summary trial in a lower court

b. An indictment may, in appropriate circumstances, be served on an accused for

appearance in the regional court

c. A child-accused cannot be issued with a summons to appear in court

d. An indictment is only used for the accused’s appearance in the regional court

e. A written notice to appear is issued by a prosecutor for appearance in the High

Court

Reference: Criminal Procedure Handbook – 12th Ed – Page 122

Screenshot: This is used for a summary trial in a lower court where the accused is

not in custody or about to be arrested.

QUESTION 12

Choose the INCORRECT answer from the following statements

a. The object of arrest must be to bring an arrested person before the court, and not

just to frighten or harass them

b. It is always preferable that an arrest be executed only through a warrant

c. A child-suspect may not be brought to court through written notice

d. Wider powers are conferred in respect of the arrest of a person caught in the act

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of committing an offence than in the case of a person merely suspected of

committing an offence

e. A child-suspect may be brought to court through a summons

Reference: Criminal Procedure Handbook – 12th Ed – Page 129

Screenshot: Although it is preferable that an arrest be effected only by virtue of a

warrant, circumstances may arise where the delay caused by obtaining a warrant will

enable the suspect to escape. It is therefore imperative that provision be made for

the arrest of suspects without a warrant in certain circumstances.

QUESTION 13

Choose the CORRECT answer from the following statements

a. Arrest must be carried out in all circumstances where an offence has been

committed

b. A private person may not use force in effecting arrest

c. A private person does not have the authority to arrest a suspect

d. A bad motive for arrest does not make an otherwise lawful arrest, unlawful

e. Arrest is only permissible if carried out through the authority of a warrant

Reference: Criminal Procedure Handbook – 12th Ed – Page 126

Screenshot: if a person is authorised to arrest another, a bad motive for the arrest

will not make an otherwise lawful arrest unlawful—Minister van die SA Polisie v

Kraatz 1973 (3) SA 490 (A).

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QUESTION 14

Choose the CORRECT answer from the following statements

a. A suspect has the right to remain silent, which includes the right not to

furnish their name to the police upon request

b. The need for special powers of interrogation arises only in special circumstances,

such as when a person refuses to grant the police access to someone they wish to

interrogate

c. The only common-law offence in respect of which such a legal duty exists to

provide information is murder

d. The need for special powers of interrogation arises only in special circumstances,

such as when the accused is in custody

e. The need for special powers of interrogation does not exist under any

circumstances

Reference: Criminal Procedure Handbook – 12th Ed – Page 126

Screenshot: The police do not need any special power to interrogate. Nothing

prohibits the police or anyone else from interrogating another person. There is no

need, therefore, for any provision providing the police with special powers of

interrogation.

QUESTION 15

Choose the CORRECT answer from the following statements

a. A police officer has the power to extract a blood sample

b. A police officer may not ascertain any mark, characteristic or other distinguishing

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feature of the suspect

c. A person’s handwriting is an extension of their bodily creation, and can

therefore, be described as a bodily feature or characteristic

d. Only the investigating officer, and not the court, has the power to order the taking

of blood samples, fingerprints or the ascertainment

e. Only a medical practitioner or district surgeon or registered nurse may

extract a blood sample

Reference: Criminal Procedure Handbook – 12th Ed – Page 158

Screenshot: Only medical or nursing staff may take blood samples.

QUESTION 16

Choose the INCORRECT answer from the following statements

a. The only common-law offence in respect of which a legal duty exists to provide

information to the police is high treason

b. There is a general legal duty on every person to furnish information to the

police regarding the commission of the crime of murder

c. There is no general legal duty on every person to furnish information regarding the

commission of an offence to the police

d. There is a legal duty on every arrestee to furnish their full name and address

e. There is a general legal duty on every person to furnish information to the

police regarding the commission of the crime of high treason

Reference: Criminal Procedure Handbook – 12th Ed – Page 158

Screenshot: And yet there is no general legal duty (as opposed to a

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possible moral duty) on members of the public to report crime. A legal duty (that is,

where non-reporting is punishable) exists only in certain exceptional instances. The

only common law example is that a legal duty rests upon all who owe allegiance to

the state to provide information on acts of high treason.

QUESTION 17

Choose the CORRECT answer from the following statements

a. An article which is concerned on probable grounds to be concerned in the

commission or suspected commission of an offence may be seized by the state

b. An article which may on reasonable grounds afford evidence of the commission or

suspected commission of an offence only within the Republic may be seized by the

state

c. An article which is concerned in or is, on probable grounds intended to be

used or on probable grounds believed to be intended to be used in the

commission of an offence may be seized by the state

d. All privileged documents are susceptible to seizure

e. Only documents in respect of which privilege has been relinquished may be

seized by the state

Reference: Criminal Procedure Handbook – 12th Ed – Page 163

Screenshot: The only exceptions relate to documents which are

privileged and in respect of which the holder of the privilege has not yet relinquished

his privilege. (Answer E states that priviledge has been relinquished hence correct)

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QUESTION 18

A search warrant may be authorized

a. only by a judge

b. by the investigating officer

c. only by a magistrate

d. by a judge or a magistrate

e. by the prosecutor

Reference: Criminal Procedure Handbook – 12th Ed – Page 163

Screenshot: Searches and seizures should, whenever possible, be conducted only in

terms of a search warrant, issued by a judicial officer such as a magistrate or judge.

QUESTION 19

Choose the INCORRECT answer from the following statements

a. Only police officials are empowered to conduct searches and to seize objects with

a warrant

b. A copy of the warrant should, whenever possible be provided before the search

and/or seizure

c. Private persons are not empowered to conduct searches and to seize objects with

a warrant

d. Both private persons and police officials are empowered to conduct searches or to

seize objects without a warrant

e. Private persons are empowered to conduct searches and to seize objects

with a warrant.

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Reference: Criminal Procedure Handbook – 12th Ed – Page 166

Screenshot: While search warrants empower only police officials to conduct

searches and to seize objects, both private persons and police officials are

empowered to conduct searches or to seize objects without a warrant.

QUESTION 20

Choose the INCORRECT answer from the following statements

a. An application for bail on new facts must always be brought before the

lower court responsible for the refusal of bail in the first place

b. Release on police bail can only take place before an accused’s first appearance in

a lower court

c. An accused is entitled to apply for bail in court during their first appearance in

court

d. Release on bail by a court can take place before an accused’s first

appearance in a lower court

e. Prosecutorial bail can only take place before an accused’s first appearance in a

lower court

Reference: Criminal Procedure Handbook – 12th Ed – Page 402

Screenshot: In Botha 2002 (1) SACR 222 (SCA) the court held

that bail applications are in essence criminal proceedings and in the instance of an

appeal against a decision of a lower court on a bail application, such appeal shall be

heard by a single judge of a division or local seat of a division of the High Court

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QUESTION 21

Choose the INCORRECT answer from the following statements

a. Bail money must, at the conclusion of the case, be refunded only to the

person who deposited the money in the first place

b. Failure by the accused to attend criminal proceedings constitutes a punishable

criminal offence

c. The cancellation of bail may be effected by the court at the request of the

accused

d. A third party may pay bail money on behalf of the accused

e. Where the accused fails to adhere to the bail conditions, the court can make

summary finding to forfeit the accused’s bail to the state

The incorrect statement is c. The cancellation of bail may be effected by the court at

the request of the accused. The court may cancel bail and declare the bail money

forfeited to the state only if it finds that the failure by the accused was due to fault on

his part. The accused may, however, apply to the court that granted the bail to

reconsider its decision to grant bail or to vary the conditions of the bail—s 65(1).

Reference: Criminal Procedure Handbook – 12th Ed – Page 191

Screenshot: Bail money, whether deposited by an accused or by any other person

for the benefit of the accused, must, not withstanding that such bail money or any

part thereof may have been ceded to any person, be refunded only to the accused or

the depositor, as the case may be—s 69(2).

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QUESTION 22

Choose the INCORRECT answer from the following statements

a. The court may rely on the opinion of the investigating officer regarding the fact

whether the accused will interfere with state witnesses

b. The personal opinion of a director of public prosecutions may be considered by

the court in its determination of bail

c. Bail proceedings are essentially accusatorial in nature

d. Bail proceedings are essentially inquisitorial in nature

e. Hearsay evidence is received more readily in a bail application than in a trial

incorrect is d. Bail proceedings are essentially inquisitorial in nature. The correct

statement is that bail proceedings are essentially accusatorial in nature, as the onus

is on the state to prove why the accused should not be granted bail. In contrast,

inquisitorial proceedings are characterized by an investigation by the court to

uncover the truth of the matter.

Reference: Criminal Procedure Handbook – 12th Ed – Page 193

Screenshot: Court hearing a bail application should not act as a ‘passive umpire’.

This is another inquisitorial feature of bail proceedings.

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QUESTION 23

Choose the INCORRECT answer from the following statements

a. A summary trial in a lower court is commenced by lodging a charge sheet with the

clerk of the court.

b. In High Court proceedings an accused may be brought before the court through

indictment.

c. The service of a summons upon an accused must take place at least 14 days

(Sundays and public holidays excluded) before the day of trial

d. In regional court proceedings an accused may be brought before the court

through indictment

e. In the case of written notice or arrest, the accused may be required to appear in

court upon very short notice

Reference: Criminal Procedure Handbook – 12th Ed – Page 217

Screenshot: Having decided to indict an accused, the director of public prosecutions

must lodge an indictment with the registrar of the High Court

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QUESTION 24

Choose the CORRECT answer from the following statements

a. if the accused is charged with the offence of driving a motor vehicle without a

valid drivers licence, the fact that the accused did not possess a drivers

licence does not constitute a substantial element of the relevant offence

b. section 88 of the cpa requires a defect in the charge to be cured by the court

c. section 88 authorises replacement of one offence with other offence proved

by evidence

d. section 88 of the cpa requires a defect in the charge to be cured by

evidence

e. section 84(1) of the cpa specifically requires some elements of the offence to

be mentioned in the charge

Reference: Criminal Procedure Handbook – 12th Ed – Page 222

Screenshot :Where a charge is defective for the want of an averment which is an

essential ingredient of the relevant offence, the defect shall, unless brought to

the notice of the court before judgment, be cured by evidence at the trial proving

the matter which should have been averred.

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QUESTION 25

Choose the CORRECT answer from the following statements

a. A joinder of accused may only take place after the trial has commenced

b. No additional charges can be joined after questioning of the accused has

commenced.

c. The court may direct that the charges against an accused be tried separately, if in

its opinion this will be in the interests of the accused.

d. In practice the prosecutor usually charges the accused with the least serious

crime as the main charge, and the more serious offences as alternative charges

e. A joinder of accused may not take place after the trial has commenced.

Reference: Criminal Procedure Handbook – 12th Ed – Page 230

Screenshot: No additional charges can be joined after questioning of the accused in

terms of s 112(1) (b) (see the discussion of the plea of guilty below) has

commenced—Witbooi 1980 (2) SA 911 (NC).

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OCT/NOV 2022 EXAM PAPER

SECTION 1

1.1 X and Y are charged with the offence of high treason. The allegations
by the prosecution are that the two accused ‘sold information crucial to
the security of the Republic to an agent representing the country of
Zamunda’ before escaping to Silo, a country in the East African region.

1.1.1 The National Director of Public Prosecutions (NDPP) Nono Dodo, is of

the firm view that the charges against the accused should, when they are
arrested, be tried in the regional court ‘due to the nature and seriousness
of the offence’. Briefly confirm the correctness or otherwise of this
decision.
(2)

This is incorrect. A regional magistrates court may try all crimes except
treason, murder and rape

1.1.2 Name the process to be used or applied by the NDPP to bring X and Y
from Silo to the Republic of South Africa to stand trial.
(1)
Extradition

1.1.3 Captain C is tasked with investigating the charges against X and Y. After
their arrest, he sets out to ask questions to X and Y regarding what they
know about said offence. Name the process used by C to ask questions.
(1)

Questioning

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1.1.4 During the questioning process referred to in 1.1.3 above, both X and Y
refuse to answer any questions, arguing that “Constitutionally, C does
not have the authority question them if they do not feel like answering”.
Briefly confirm the correctness or otherwise of this assertion.
(2)

Yes, according to Section 35(2) of Constitution:Every detained person has right

to remain silent & to not make any confessions

1.1.5 The Director of Public Prosecutions (DPP), Dippy Pee, declines to

prosecute the accused. She thereupon completes and signs a
document in which she confirms, first, that she has examined the
statements or affidavits on which the charge is based and, secondly,
that she declines to prosecute at the instance of the state. Name said
document.
Certificate nolle prosequi.
1.2 A and B allegedly commit the offence of rape. After arrest, they decide
to bring a bail application before the regional court.
1.2.1 Identify the party who bears the burden (onus) of proof in such
proceedings;
(1)

The accused bears the burden of proof in respect of Section 60(11)(a) and (b)
and such burden is proof on a balance of probabilities.

1.2.2 Briefly elaborate on the threshold (not the standard of proof! In other
words, what the applicant needs to prove to the court to be released on
bail) in respect of the offence set out in 1.2, above.

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(2)

The accused bears the burden of proof in respect of Section 60(11)(a) and (b) and
such burden is proof on a balance of probabilities. Section 60(11) of CPA - Bail
application of accused in
court Notwithstanding any provision of this Act, where an accused is charged with
an offence referred to - (a) in Schedule 6, the court shall order that the accused be
detained in custody until he or she is dealt with in accordance with the law, unless
the accused, having been given a reasonable opportunity to do so, adduces
evidence which satisfies the court that exceptional circumstances exist which in the
interests of justice permit his or her release; (b) in Schedule 5, but not in Schedule
6, the court shall order that the accused be detained in custody until he
or she is dealt with in accordance with the law, unless the accused, having been
given a reasonable opportunity to do so, adduces evidence which satisfies the
court that the interests of justice permit his or her release. Section 60(11)(a) is
constitutional even though it places a formal onus on the accused. The
"exceptional circumstances" limitation was deemed to be a permissible limitation in
Dlamini etc. In Section 60(11)(b) the additional "exceptional circumstances" has
been excluded and thus, the test for Section 60(11)(a) is more rigorous
than that contemplated by Section 60(11)(b).

SECTION 2

2.1 During an altercation with his neighbour, Feisty Belligerent in the year
2000, Ed Crook allegedly ‘slapped the complainant across the face with
an open hand’, and also ‘urinated on his lawn’. Feisty subsequently laid
charges of assault and malicious damage to property. Feisty did not
suffer any physical injuries.
2.1.1 Briefly discuss, in the context of section 18 of the Criminal Procedure Act
51 of 1977 (CPA), whether the right to prosecute Ed has prescribed if he
is only arrested in 2022.

S18 of the CPA: Prescription of right to institute prosecution. The right to

institute a prosecution for any offence, other than the offences of—
1. Murder;
1. Treason committed when the Republic is in a state of war;

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2. Robbery, if aggravating circumstances were present;

3. Kidnapping;
4. Child-stealing;
5. Rape
6. The crime of genocide, crimes against humanity, war crimes
Shall, unless some other period is expressly provided by law, lapse after the
expiration of a period of 20 years from the time when the offence was
committed. In the set of facts above the time has now lapsed as it has
exceeded 20 years and therefore the right to prosecute Ed has prescribed.

2.2 On the same facts mentioned in 2.1 above, Ed is arrested two days after
the commission of the alleged offences. Feisty is adamant that Ed
should be ‘prosecuted to the fullest extent of the law’. However, Ed’s
attorney, Clever Trevor, makes representations to the prosecutor to
withdraw the charges against his client. The request is made after Ed has
pleaded ‘not guilty’ to the charges, and Feisty has already testified.

Discuss the workability of a withdrawal in the circumstances sketched above.

(10)

According to s6(a) of the CPA,the prosecuting authority has the authority to

withdraw a charge before the accused has pleaded to such a charge .The
accused is in these circumstances not entitled to a verdict of acquittal . He may
be prosecuted again on the same or related charges, for example, where new
evidence is found . A prosecutor may withdraw a charge without the consent of
his DPP. The reason for this is that a DPP, if dissatisfied with the prosecutor’s
withdrawal of the charge, may charge the accused afresh
Before an accused pleads, the prosecution can also withdraw a summons and
issue another .
In the set of facts above, the accused has already pleaded , hence the
withdrawal will not be applicable

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ALTERNATIVE - Stopping the Prosecution

A DPP may at any time after an accused has pleaded, but before conviction,
stop the prosecution in respect of that charge. If this is done, the accused is
entitled to an acquittal according to s 6(b) of CPA.
This means that in any subsequent prosecution in respect of the same facts,
the accused can successfully rely on a plea of previous acquittal (autrefois
acquit) . However, a public prosecutor may not stop a prosecution without the
consent of the DPP or any person authorized thereto by such a DPP – s 6(b);
The mere fact that a prosecutor indicates to the court that on the evidence as
presented in court he is unable to support a conviction, does not amount to a
stopping of the prosecution – Bopape 1966 (1) SA 145 (C) (1).

2.3 Sergeants Skop Madonoro and Trigger Happy are conducting patrols
along the Steelpoort Railway Station one evening when they notice a
group of males stripping copper cables from the building of one of the
offices. Upon the arrival of the two police officers, the group runs away
in different directions, but the two officers manage to arrest one suspect,
X, in possession of newly-stripped copper cables. The stealing of copper
cables is classified as an ‘essential infrastructure-related offence’.
Happy Trigger thereupon informs X that he is ‘under arrest for stealing
copper cables’. X is put inside the police van, and the two officers
proceed to drive to the police station.

2.3.1 Discuss whether the arrest conforms to the requirements of s 39 of

the Criminal Procedure Act 51 of 1977. (10)

Lawful arrest and lawful continued detention after arrest are based upon four
'pillars':
(1) The first pillar is that the arrest (with or without a warrant) must have been
properly authorised, ie there must be a statutory provision authorising the arrest.
(2) The second pillar is that the arrester must exercise physical control over the
arrestee. He or she must therefore limit the latter's freedom of movement. Unless
the arrestee submits to custody, an arrest is effected by actually touching his
person or, if the circumstances so require, by forcibly confining his per- son-s
39(1).
(3) The third pillar is the informing of the arrestee of the reason for his arrest:
s 39(2) requires that an arrester must, at the time of effecting the arrest or
immediately thereafter, inform the arrestee of the reason for his arrest or, if the

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arrest took place by virtue of a warrant, hand the arrestee a copy of the warant
upon demand. An arrestee's custody will be unlawful if this requirement is not
complied withThe question whether the arrestee was given adequate reason for
his or her arrest depends on the circumstances of each case. The arrested
person's particular knowledge of the surrounding circumstances for his or her
arrest is an important consideration in this regard.
The exact wording of the charge which will later be brought against the
arrestee need not be conveyed at the time of the arrest
Whilst an arrestee's detention is regarded unlawful if he or she was not
informed at the outset of the reason for the arrest, his or her detention is lawful
if he or she is later informed of the reason-Nqumba v State President 1987(1)
SA 456 (E). Detailed information relating to something that the arrestee ought
to know need not be given, especially when the arrestee is caught in the act.
(4) The final pillar is the requirement that the arrestee be taken to the
appropriate authorities as soon as possible. Section 50(1)(a) provides that an
arrestee must as soon as possible be brought to a police station or, if the arrest
was made in terms of a warrant, to the place stipulated in the warrant.
In light of the above circumstances the arrest conforms with the requirements
of section 39.

2.3.2 Discuss whether X may be released on police bail after the case was
postponed a few after the first appearance. (5)

In terms of Section 59 of the CPA, bail may, in certain limited circumstances, be

granted by the police and this is referred to as “police bail”. The purpose of this
type of bail is to ensure that pretrial release on bail in respect of relatively trivial
offences be secured as soon as possible – even before first appearance in a lower
court. If police bail cannot be granted or it can be granted but is refused, the
accused may still apply to a lower court for bail even before his first compulsory
appearance. Bail granted by the prosecution pending an accused’s first
appearance in court, is also possible.

Police bail may not be granted in terms of infrastructure-related offences

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SECTION 3

3.1 A works for the Department of Social Welfare as an accounting officer,

where she allegedly siphons R3-million into the secret bank accounts of
six accomplices. A is c harged in the regional court with 50 charges of
fraud. After obtaining instructions from A, D, A’s attorney approaches
the prosecutor, P, with a ‘plea bargain’ offer, and suggests that the
arrangement be concluded ‘in the traditional sense’ of plea bargaining.
In terms of this arrangement, A agrees to plead ‘guilty’ to 25 instead of
50 charges, and also insists that the plea bargain agreement must
include a formal agreement on sentence.

Discuss the workability of the arrangement according to D’s

suggestions.(8)

Plea bargaining in the form of traditional plea negotiation and agreement

be- tween the parties have always taken place in practice in various
formats. Its main object is to lighten the burden
which the accused has to bear in the sense that the accused faces less
serious implications as far as sentence is concerned, and to spare the
State the time and expense involved in a lengthy criminal trial with all of its
attendant evidentiary risks.
Traditional plea of bargaining To achieve this object a plea to a lesser is
negotiated with the prosecutor, who agrees . Alternatively, the accused
pleads guilty on the charge but on a different to acceptasis to that alleged.
In both an agreement is reached with the prosecutor on the facts which
are to be placed before court to justify a conviction on the agreed
3(b). The concept of justice in its procedural sense is closely related to
legality. It does not matter whether the accused is guilty or not, the only
question is whether the basic right to a fair trial
has been affected by an irregularity to such an extent that it can be said
that justice was not done. According to Mabuza the standards which the

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judicial officer should maintain include;

• The court must not conduct its questioning such that its impartiality can
be questioned ordoubted • The court should not take part in the case to
such an extent that its vision is clouded
and then unable to adjudicate properly • The court should not intimidate or
upset a witness oraccused so that answers are weakened or credibility
shaken • The court should control thetrial such that is impartiality, fairness
etc. is evident to all Judicial officers or judges must base
their decisions solely upon evidence heard in open court in the presence
of the accused and such officers should have no communication with
either party or witnesses in a case before him except in the presence of
both parties. Evidence must be given under oath or upon solemn
affirmation in lieu of an oath or serious admonition to speak the truth. The
Criminal Procedure Act lays down certain rules of procedure which should
be observed, but the trial is otherwise subject to the management of the
judicial officer presiding over it.

3.2 After the first state witness gives evidence-in-chief, the magistrate, M
requests the for the witness to be to cross-examined. P who led the
evidence-in-chief of the same witness, stands up to start cross-
examination. Provide a brief explanation of the process of cross-
examination with specific reference to
i. the party who can/ must conduct cross-examination
ii. the purpose of cross-examination; and
iii. whether, in the facts set out above, cross-examination by P is, indeed,
possible and/ or permissible.
(5)

The witnesses for the state may be cross-examined by the defence. If the court
agrees and the other party does not dispute the facts, the legal representative
may convey this information verbally to the court from the bar, that is, from the

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place where the legal representative stands, without testifying under oath. The
accused or his legal representative and the prosecutor may then address the
court in this regard.

The party who called the witness is responsible for taking the witness through
the examination-in-chief by following the question-and-answer technique. The
most important rule is that leading questions may not be asked in respect of
matters in dispute. A leading question is a question that suggests the answer to
the witness.

The parties who did not call the witness have a fundamental right to cross-
examine this witness.
The purpose of cross-examination is to elicit facts favourable to the cross-
examiner’s case. Cross-examination is therefore not confined to matters raised
by the witness in his evidence-in-chief.
Leading questions are permitted. The cross-examiner has a duty to cross-
examine on matters he disputes.
In terms of s 150(2)(a) the prosecutor may question the State witnesses ‘and
adduce such evidence as may be admissible to prove that the accused
committed the offence referred to in the charge or that he committed an
offence of which he may be convicted on the charge’.

3.3 At the close of the defence case, the magistrate, M, convicts A on

multiple charges of fraud, and proceeds to the sentencing phase without
giving the reasons for arriving at the verdicts. When called upon by the
defence to proffer such reasons, M merely repeats the evidence
presented by the prosecution, and insinuates that ‘the accused was
found guilty on the basis of proven evidence which is already on record’
without necessarily advancing his own submissions for the conclusions.

3.3.1 Discuss, M conduct, in light of the Supreme Court of Appeal’s judgment

in National Director of Public Prosecutions v Naidoo 2011 (1) SACR 336
(SCA), where the court concluded, inter alia, that:

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“The importance of furnishing reasons for a judgment is a salutary

practice… ensuring public confidence in the administration of justice”.
(12)

In terms of s 146 of the Act a judge is required to give reasons for any conclusions
reached by him or her in respect any question of law or fact—Maake 2011 (1)
SACR 263(SCA) at [24]. A magistrate is also obliged to give reasons for his or her
decision on any factual or legal issue—s 93ter(3)(c) to (e) of the Magistrates’
Courts Act 32 of 1944
Proper reasons require ‘an intelligent analysis of the evidence’ and cannot consist
of ‘a mechanical regurgitation of the evidence’—Bhengu 1998 (2) SACR 231 (N)
234f-235a.
Paucity of reasons and the absence of any specific finding as regards the evidence
of an accused are ‘tantamount to a situation where no reasons for a conviction are
given’—Ngabase 2011 (1) SACR 456 (ECG) at [4].
The court must assess the evidence ‘holistically’
The conclusion which is reached (whether it be to convict or to acquit) must
account for all the evidence’
The absence of reasons has an adverse effect on the constitutional right of an
accused of appeal to, or review by, a higher court—s 35(3)(o) of the Constitution;
In the absence ofreasons, it becomes difficult for the accused to assess whether
an appeal, or review, would have reasonable prospects of success. The trial
court’s failure to furnish reasons also hampers the task of the appeal or review
court.
On appeal a trial court’s findings of fact are—in the absence of a demonstrable and
material misdirection by the trial court—presumed to be correct, unless the
recorded evidence shows these findings to be clearly wrong
A court of appeal would also be able to consider the evidence afresh and make its
own factual findings if ‘no judgment worth speaking of’ was delivered by the trial
court.

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SECTION 4

4.1 The magistrate, M, convicts the accused, X, of malicious damage to

property, and postpones the case for sentencing. M subsequently dies
of Covid-19 complications before delivering sentence on the sentencing
date. A, X’s attorney, insists on the trial starting de novo (from the
beginning), asserting that the proceedings essentially ‘died with M’.
Briefly discuss X’s argument, in the context of section 275 of the CPA.
(5
According to Section 275 of the CPA, “If sentence is not passed upon an
accused forthwith upon conviction in· a lower court, or if, by reason of any
decision· or order of a superior court on appeal, review or otherwise, it is
necessary to add to or vary any sentence passed in a lower court or.to pass
sentence afresh in such court, any judicial officer of that court may, in the
absence of the judicial officer who convicted the accused or passed the
sentence, as the case may be, and after consideration of the evidence recorded
and in the presence of the accused, pass sentence on the accused or take such
other steps as the judicial officer who is absent, could lawfully have taken in the
proceedings in question if he had not been absent.”

In the above set of facts, X was not sentenced before the M died. However , in
the absence of the judicial officer who convicted the accused or passed the
sentence, as the case may be, and after consideration of the evidence recorded
and in the presence of the accused, pass sentence on the accused or take such
other steps as the judicial officer who is absent, could lawfully have taken in the

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proceedings in question if he had not been absent

4.2 After conviction and sentence in the district court, X decides to lodge an
appeal on both the conviction and the sentence. A, his attorney, advises
X that they need to approach the regional court, which has higher
jurisdiction than the district court, to hear their appeal.
Briefly discuss the workability of A’s strategy. (5)

Hints: the answer must be sought from p. 38 par. 3.1.2 of the Handbook, and
must discuss the following aspects, namely,
i. jurisdiction in respect of appeal from lower to higher courts;
ii. the procedure to be followed before approaching a higher court
(in terms of ‘permission’); and
iii. your conclusion in respect of A’s strategy.

In terms of s 309B any convicted accused, other than those mentioned above, who
wishes to note an appeal against any conviction or against any resultant sentence
or order of a lower court, must apply to the court of first instance (trial court) for
leave to appeal against that conviction, sentence or order. Such an application
must be made— within 14 days after the passing of the sentence or order following
on the
conviction; or within such extended periods as the court may, on application and
for good cause shown, allow.
Any application for leave to appeal must be heard by the magistrate whose
conviction, sentence or order is the subject of the prospective appeal (hereinafter
referred to as the trial magistrate) or, if the trial magistrate is not available, by any
other magistrate of the court concerned, to whom it is assigned for hearing (s
309B(2)(a)). If the application is to be heard by a magistrate other than the trial
magistrate, the clerk of the court must submit a copy of the record of the
proceedings before the trial magistrate to the magistrate hearing the application:
Provided that where the accused was legally represented at a trial in a regional
court, the clerk of the court must only submit a copy of the judgment of the trial
magistrate, including the reasons for the conviction, sentence or order in respect of

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which the appeal is sought, unless the magistrate hearing the application deems it
necessary in order to decide the application to request the full record
of the proceedings before the trial magistrate.
Notice of the date fixed for the hearing of the application must be given to the
director of public prosecutions concerned, or to a person designated thereto by him
or her, and to the accused—s 309B(2)(d).

4.3 After his conviction and sentence, A lodges successive appeals to the
courts, ending with the Supreme Court of Appeal (SCA). In the
meantime, new evidence has come to light which may exonerate him.
4.3.1 Briefly discuss the executive action, in terms of s 327 of the CPA, which
may be taken by the State President after the court has evaluated the
accused’s petition, and the (procedural) consequences of the State
President’s decision.
(5)
Hints: the content of the answer must be limited to
i. information contained on p. 555, par. 3 of the Handbook;
ii. the actions of the State President, and not those of any other functionary;
and
iii. any other procedural remedies (or lack thereof) which may be applied
after the action by the State President.
NB: Please include only aspects relevant to the question asked, as contained
in p. 555 par. 3 of the Handbook. All other information is irrelevant, and will not
be credited.

According to Section 84 of the Constitution empowers the President to pardon,

reprieve offenders and to remit any fines, penalties or forfeitures
Expunging a criminal record for a conviction and subsequent sentence for an
offence is an executive action. The effect is that the convicted person has a
clean record as far as the particular conviction and sentence is concerned.

Section 325 of the Criminal Procedure Act affirms ex abundanti cautela the
President’s prerogative by providing that nothing contained in the Act shall affect

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the powers of the President to extend mercy to any person. In accordance with
international tradition, neither the Constitution nor the Criminal Procedure Act lays
down specific criteria according to which the prerogatives are to be exercised, and
it is clear that the President has a wide discretion when exercising these powers.
The only clear limitation is that the President cannot act contrary to the
Constitution.
Convicted persons have no right to be pardoned or reprieved and also have no
right to be heard in respect thereof, but may only hope for the indulgence of the
President. The prerogative of commuting any punishment is therefore that of the
President. In practice, however, the President will not exercise his prerogative of
mercy without considering a report from the Minister of Justice containing the
recommendations of the director of public prosecutions, the presiding officer of the
trial court and that of the state law advisers. This does not detract from the fact that
it remains an executive act which ought not to be influenced by the judiciary but
should be open and accountable.

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MAY/JUNE 2022 EXAMINATION

SECTION 1

1.1 A is arrested on a charge of housebreaking with intent to steal and theft.

1.1.1 Name the part of the law which regulates the essential elements of the offence
allegedly committed by A. (1)

Substantive law

1.1.2 Name the part of the law which regulates the procedure to be followed in
executing the prosecution. (1)

Adjectival law

1.1.3 Name the part of the law which determines the charges to be put against A,
and the so-called definitional elements which must established to successfully prove
said charges. (1)

Criminal procedure

1.1.4 If the case goes on trial which burden must to be discharged to the court, and
by whom? (2)

Proof beyond a reasonable doubt by the state

1.1.5 Briefly discuss whether the type of offence mentioned above can or should

Because of the presumption of innocence, everyone is presumed innocent until

proven guilty in a court of law.

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1.2 A is charged with the offence of robbery with aggravating circumstances. The
prosecutor requests deferments of the case a few times before the actual trial starts,
that is before A pleads to the charges and the witnesses testify.

1.2.1 Name the process which is applied by the court in deferring (putting forward to
another date) the case as indicated above. (1)

Postponement

1.2.2 Name the process (of deferment) that is applicable if the trial had already
started, and witness led in testimony. (1)

Adjournment

1.2.3 The discretion to defer a case to a future date lies with the prosecutor. True or
False? (1)

False

SECTION 2

2.1 Three assailants, A, B and C are engaged in a crime of robbery at one of the
jewellery stores in the newly-built African Mall. During the ensuing fracas, a firefight
ensues as the security guards at the jewellery store attempt to foil the robbery. F, one
of the security guards, orders C, who is cornered inside the store to give up. However,
C responds by firing shots at F, who fires back injuring C on the left leg. F apprehends
C and hands him over to the police, whilst A and B make away with an undisclosed
amount in fine jewellery and cash. C is held under guard in hospital, pending his
appearance in court.

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2.1.1 Discuss whether F’s actions comply with the requirements for the use of force
as set out on p. 171 - 173 par. 5.8.2 of the Handbook. (15)

Hints:

i. your answer should not merely tabulate the contents of the Handbook, but
must, critically discuss said requirements in conjunction and in synergy with
the facts advanced above;
ii. ii. your answer should state the main requirement without necessarily
elaborating on the additional information in respect of every requirement set
out in par. (1) - (9).

Use of force

The suspect must have committed a crime. If the arrester is acting on the basis of a
reasonable suspicion that the suspect has committed a crime, the suspicion must be
reasonable. The test is objective in this case, meaning that the circumstances should
be such that a reasonable person would conclude that the suspect has committed an
offence—Nell 1967 (4) SA 489 (SWA), Purcell-Gilpin 1971 (3) SA 548. (RA).

The arrester must have legal authority to make the arrest. With or without a warrant,
the person who arrests or attempts to arrest the suspect must have the authority to
arrest the suspect or assist in his or her arrest for the crime.

Metelerkamp 1959 (4) SA 102 requires the arrester to make an attempt to apprehend
the suspect (E). The arresting officer cannot use force without first attempting to
apprehend the offender. The popular belief that a homeowner can shoot an offender
who has trespassed on or broken into his property and then flees after being warned
three times to stop is false. Clearly, such behavior does not always constitute an
attempt to arrest.

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Metelerkamp 1959 (4) SA 102 requires the arrester to make an attempt to apprehend
the suspect (E). The arresting officer cannot use force without first attempting to
apprehend the offender. The popular belief that a homeowner can shoot an offender
who has trespassed on or broken into his property and then flees after being warned
three times to stop is false. Clearly, such behavior does not always constitute an
attempt to arrest.

The suspect must flee or offer resistance in order to get away. The suspect must be
aware that an attempt is being made to arrest him or her and must have been informed
of the intention in some way, and must continue to flee or resist the attempted arrest
despite this knowledge. There must be no other reasonable means of obtaining the
suspect's arrest. Of course, whether or not this requirement has been met depends
on the facts of each case.

The force must be used against the suspected criminal. A may not shoot
indiscriminately at the occupants of a vehicle if A has reasonable grounds to suspect
B of committing an offence involving the infliction or threat of serious bodily harm and
B is one of the occupants, among whom there may also be innocent people—
Government of the Republic of South Africa v Basdeo 1996

(1) SA 355 (A). In all circumstances, the amount of force used to make an arrest
must be reasonable and proportional.

F's actions, based on the facts, are consistent with the use of force requirements.

2.1.2 In terms of s 35(1)(d) of the Constitution, an accused person must be brought

before court ‘48 hours after the arrest’. Due to the nature of his injuries, the
investigating officer, E, is unable to bring C before court within the requisite 48 hours.

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Briefly discuss how C can be brought to court without necessarily breaching the so-
called 48-hour rule. (5)

A person who has been arrested must be taken to a police station as soon as possible.
The purpose of bringing an arrestee to a police station is to ensure that he is placed
in the custody of the South African Police 'as soon as possible' and detained for no
more than 48 hours. Section 50(1)(d)(i) extends the 48-hour period significantly (iii).
When it expires, and the arrestee cannot be brought before a court because of his
physical illness or other physical condition, the court may, on the prosecutor's
application, order that the arrestee be detained at a location specified by the court (eg
a hospital) for as long as the court deems necessary so that he can recover (release
on bail, warning, etc may, of course, also be considered) to prevent abuse; the
prosecutor's application

2.2 B is arrested, upon information received from an informant, by the investigating

officer, X, in connection with the crime of housebreaking with intent to steal and theft
at Mnandi Tavern. During the investigations, finger print samples are lifted from the
scene of the crime which X would like to compare with those of the arrested suspect,
B.

After his arrest, B refuses to have his fingerprints taken on the basis that the taking of
his fingerprints,

2.2.1 will essentially ‘criminalise him forever’ because the record of his fingerprints
will ‘remain with the police for good’;

2.2.2 violates his right to privacy, as enshrined in the Constitution.

Briefly discuss whether C’s concerns are reasonable, in light of the finding in S v Huma
1996 (1) SA 232 (W). (5)

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The obtaining of data through finger, palm and foot-printing, conducting identity
parades, ascertaining of bodily features, taking of blood samples and taking of
photographs is regulated by s 37 of the CPA. In Huma 1996 (1) SA 232 (W) it was
held that the taking of fingerprints does not violate the accused’s right to remain silent
or his right to have his dignity respected and protected. C’s concerns are
unreasonable.

SECTION 3

3.1 In terms of s 89 of the Criminal Procedure Act, 51 of 1977:

“Except where the fact of a previous conviction is an element of any offence with which
an accused is charged, it shall not in any charge be alleged that an accused has
previously been convicted of any offence, whether in the Republic or elsewhere”.

B, who has a previous conviction of robbery with aggravating circumstances, and is

currently charged with a similar offence, decides not to reveal the existence of the
previous conviction during the formal bail application for ‘fear of being victimized by
the court for my past deeds.’

Discuss B’s conduct critically, in the context of s 60(11B) of the Criminal Procedure
Act 51 of 1977. (8)

The state may prove previous convictions in the course of a bail application. The
accused or his legal counsel must also inform the court if the accused has ever been
convicted of a crime—section 60(11B)(a) (i). Any charges pending against the
accused must also be disclosed by him or his legal representative, as well as whether
the accused has been released on bail pending those charges—section 60(11B)(a)
(ii). When the legal representative submits the required information, whether in writing
or orally, the court requires the accused to declare whether he confirms it or not—
section 60 (11B) (b).

An accused who willfully fails or refuses to comply with the provisions of section
60(11B) (a) commits an offence and is subject to a fine or imprisonment for a period

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not exceeding two years if convicted—section 60(11B)(d) (i). S 60(11B)(d) applies to

an accused who knowingly provides false information (ii).

3.2 The DPP decides to charge A, B and C in the regional court. The charges
against the accused read as follows:

The accused, A, B and C are charged of the offence of robbery with aggravating
circumstances in that all the accused robbed a bank;

In light of the right to trial fairness, s 35(3)(a) of the Constitution requires the accused
“to be informed of the charge with sufficient detail to answer it”.

Critically discuss whether the wording in the charge sheet scrupulously conforms to
the requirements of s 84(1) of the CPA for clearness and intelligibility. (10)

Hints:

i. the facts should be discussed in conjunction with the provisions of s 84(1)

without necessarily repeating the content hereof word-for-word, but by discussing the
relevant issues critically;

ii. the content and examples on the 1st and 2nd paragraphs (p. 261 of the
Handbook) provide a perfect guideline on how to approach the question, and should
be enunciated in conjunction with the content of the charge mentioned above.

Section 84(1) sets out the requirements with which a charge should comply. It provides
as follows:

A charge shall set forth the relevant offence in such a manner and with such particulars
as to the time and place at which the offence is alleged to have been committed, the
person, if any, against whom the offence is alleged to have been committed, and the
property, if any, in respect of which the offence is alleged to have been committed, as
may be reasonably sufficient to inform the accused of the nature of the charge.

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If the prosecutor is unaware of any of the particulars listed in subsection (1), it is

sufficient to state the fact in the charge. Any statutory offence shall be described in
criminal proceedings in the words of the law creating the offence, or in similar words.
The description of a statutory offence will be sufficient if the words of the enactment,
or similar words, are used, according to section 84(3). Those drafting indictments
should not slavishly follow a statute's wording, but should limit the charge to what is
relevant—Mangqu 1977 (4) SA 84 (E).

No, the wording in the charge sheet does not scrupulously conforms to the
requirements of s 84(1) of the CPA for clearness and intelligibility.

3.3 During the ensuing trial, M, the magistrate who presided in the bail application,
and refused bail to A, B and C on the basis that ‘the prosecution has a strong case
against accused’, also presides in the main trial.

Briefly discuss whether grounds exist for the recusal of M from the proceedings. (4)
Hints:

i. your answer MUST NOT set out the requirements for the test for judicial bias
as set out on p. 285 of the Handbook;

ii. your answer must, however, set out in brief, the general rule as set out in par
2.4, and the conclusion as enunciated in the examples set out in the Handbook.

It is a clear rule of our law that no one who has an interest in or is prejudiced against
the subject of the trial should adjudicate on it. The common-law rules must be applied
in applications for the recusal of judges, magistrates, or, it is suggested, assessors,
because the Criminal Procedure Act does not contain any provisions on the subject.
If there is a real or reasonably perceived conflict of interest, or a reasonable suspicion
of bias based on objective facts, a judge must recuse himself. A judge may not recuse
himself or herself for insignificant reasons.

There are no grounds for M to be recused from the proceedings.

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3.4 The magistrate, M, decides to deliver her verdict after hearing only the evidence
of the prosecution. Discuss M’s conduct critically. (3)

Hint: the question must be approached in line with one of the main requirements for

The Criminal Procedure Act establishes some procedural rules that must be followed,
but the trial is otherwise under the control of the judicial officer presiding over it. All
orders given in the judicial discretion of the presiding judge or other judicial officer for
the proper conduct of the trial must be obeyed by the parties the court staff, and the
general public, who are all liable to be committed or fined summarily for contempt of
court in the event of wilful disobedience.

The court should not conduct its questioning in such a way that its impartiality is
questioned or doubted, as stated in Mabuza 1991 (1) SACR 636 (O). The court should
not become so involved in the case that its vision is clouded by the "dust of the arena"
and it is unable to properly adjudicate the issues. The court should not intimidate or
upset a witness or an accused person in such a way that his or her answers are
weakened or his or her credibility is questioned. The court should conduct the trial in
such a way that the court's impartiality, openness, fairness, and reasonableness are
evident to all parties involved, particularly the accused.

No significant decision should be made without both parties having the opportunity to
express their views—Suliman 1969 (2) SA 385 (A). The audi alteram partem principle
should always be followed— Zuma [1996] 3 All SA 334; Bidi 1969 (2) SA 55 (R) (N).
Every accused person has the right to present and challenge evidence under section
35(3)(i) of the Constitution.

SECTION 4

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4.1 A is arraigned in the District Court on a charge of Assault with intent to do

grievous bodily harm because he is alleged to have hit B with an iron rod on B’s left
arm, causing injuries to said arm. After the charge is put to A during the trial, the
magistrate, M, requests A to plead to the charge.

A, who is legally unrepresented, intimates to the court his willingness to plead, but
contends that he would rather do so after consulting a lawyer. M interprets A’s behavior
as ‘intransigent and unco-operative’, and records a plea of ‘not guilty’.

Briefly discuss whether M’s conduct can be deemed as reasonable. (5) Hints:

i. your answer must first expatiate on the general applicable rule regarding

‘dispensing with the plea’, before elaborating on, and analyzing the merits;

iii. the question should be answered with regard to information contained in

chapter 14 of the Handbook.

M’s conduct is unreasonable because 4.1 If the accused refuses to plead or answer
directly to the charge, the court shall enter a not guilty plea— Monnanyane 1977 (3)
SA 976 (O). The court's plea has the same effect as if the accused had actually
pleaded guilty (s 109). The opinion expressed in Mothopeng 1965 (4) SA 484 (T) was
that the provisions of section 109 should not be invoked where an accused bona fide
refuses to plead. To require an accused to enter a plea after informing the court that
he wishes to consult with a legal representative violates established procedural rules
and is in violation of the accused's fundamental right to legal representation. —Mkhize
1978 (3) SA 1065 (T).

4.2 At the close of the defence case, A the accused, gives instructions to his
attorney, D, to apply for a discharge in terms of s 174 of the Criminal Procedure Act.

Briefly explain the workability of A’s instruction with specific reference to the timing

of such application as set out on p. 382 par. 4.3 of the Handbook. (2)

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According to Section 174 of the CPA, if the court believes there is no evidence that
the accused committed the offence referred to in the charge or any other offence for
which he could be convicted on the charge at the conclusion of the prosecution's case
at any trial, it may return a not guilty verdict. According to the facts, discharge occurs
after the prosecution's case and before the defence case.

4.3 A is charged with murder for the killing of B. According to the facts, B,s death
was caused by a fall, occasioned by a slap with an open hand to B’s face, which
resulted in B hitting his head against the pavement in the process of falling down.
During the trial, A admits that his actions caused B’s death, but contends that his
intention (A’s) was merely to hit B hard enough to repel what he deemed B’s
threatening demeanor towards him (A).

Name three competent verdicts with which A can be convicted by the court. (3)

• Culpable homicide.

• Assault with intent to do grievous bodily harm.

• Common assault.

4.4 Upon his conviction on a charge of robbery, the prosecution presents evidence
regarding A’s previous conviction on charge of assault with intent to do grievous bodily
harm.

Briefly discuss the role the previous conviction ascribed to A him should play in the
sentencing process. (5)

Hint:

i. your answer must be guided by the marks awarded for the question;

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ii. the general principle and the reason for the approach advanced in the answers,
as set out in chapter 19 of the Handbook, are paramount to the correctness of the
answer. All other information is irrelevant.

A person who is repeatedly convicted of similar offenses will face increasingly harsher
penalties. This is because the offender's continued violation of the law shows a
disregard for the law, and it is believed that the harsher the penalty, the more likely the
offender will refrain from committing further crimes. For minor offenses, very harsh
penalties were sometimes imposed in the past, based solely on the number of
previous convictions for similar offenses. However, a number of decisions have
emphasized that the gravity of the crime should take precedence over previous
convictions— Barnabas 1991 (1) SACR 467 (A).

4. 5 A, a first offender, is convicted on a charge of the theft of a loaf of bread from

Shop Value Stores in the District Court, and sentenced to three years’ imprisonment.
A is of the view that the sentence arrived at by the court is ‘too harsh’, relative to the
offence committed.

Explain whether A may (assuming that the trial took place in accordance with justice)
lodge an appeal, and the circumstances under which a court of higher instance may
interfere with the District Court’s sentence. (5)

Hint: your answer should set out the most appropriate legal position from the options
set out on p. 496 par. 1.4 of the Handbook.

Although an appeal court has the power to reduce a sentence, it should be noted that
a court of appeal, whether it is the Supreme Court of Appeal or a 'provincial' or 'local'
division with appeal jurisdiction, does not have broad discretion to overturn trial court
sentences. The powers of the appeal court on an appeal against a sentence are

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governed by principles derived from judicial precedent. The trial court has the authority
to impose the appropriate sentence. — Whitehead, SA 424 (A) 435, 1970.

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CPR3701 TEST YOUR SELF MCQ QUESTIONS – FOR 2021 EXAMS

TB = Text Book, SG = Study Guide

1. Open justice can be equated with the concept that justice must be “seen to be

done”. 1 (True)

2. Open justice is protected by the right to a fair trial and is an absolute right. 2 (False)

3. The court cannot exclude any member of the public from the trial of an adult

accused. 2 (False)

4. In cases where a witness for the state is about to abscond, the prosecutor may

apply for a warrant of arrest and have the said witness detained pending the trial.

1 (True)

5. Co-accused are ordered numerically. 1 (True)

6. The prosecution decides the numerical order of co-accused at a trial. 1 (True)

7. The court can of its own accord raise the issue of separation. 1 (True)

8. The principle of legality is constitutionally entrenched. 1 (True)

9. The principle of equality of arms is founded on equal opportunities being available

to both the state and the defence to prove their respective cases. 1 (True)

10. The merits of a case are the cardinal point of the court’s considerations when

determining whether to convict or acquit. 1 (True)

11. Where required, the entire judgment of the court must be translated into a language

that the accused understands. 1 (True)

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12. In cases where the charge pertains to multiple acts or omissions, the court must

deliver judgment separately on each individual charge. 2 (False)

13. Some sentences do not constitute punishments. 1 (True)

14. In Rabie 1975 (4) SA 855 (A) 862G, the court summarised the general principles

of sentencing. 1 (True)

15. Imprisonment, committal to a treatment centre, a fine and correctional supervision

are the only sentences that can be imposed by a court. 2 (False)

16. Periodical imprisonment is a form of short-term imprisonment and is also informally

known as “weekend imprisonment”. 1 (True)

17. The Constitution secures a general right of review. 1 (True)

18. Fairness no longer entails enquiring whether there was a failure of justice, but

whether the trial was fair. 1 (True)

19. Review is more appropriate than appeal in cases where the accused is dissatisfied

with the procedures during the trial. 1 (True)

20. There is a general right of appeal in South Africa. 1 (True)

21. The right of appeal is justifiably limited by section 36 of the Constitution. 1 (True)

22. A person can appeal against the sentence imposed or the conviction – not both. 2

(False)

23. The Constitution empowers the President to pardon or reprieve offenders in certain

circumstances. 1 (True)

24. The President is empowered to remit any fine, penalty or forfeiture within the

confines of the Constitution. 1 (True)

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25. The Department of Justice and Constitutional Development has the sole

responsibility to expunge records on application by the accused. 1 (True)

26. The notion of “open justice” establishes a protective function in respect of the fair-

trial rights of the accused. 1 (True)

27. Open justice can be limited in cases where the accused is in danger of being

exposed as a state informant. 1 (True)

28. The accused can testify by way of closed-circuit television in cases where an open

trial may cause him or her emotional or physical harm. 1 (True)

29. Witnesses are protected in cases of sexual assault and extortion by way of the

court’s discretion to “close the court”. 1 (True)

30. Irrespective of the charge, if a matter relates to an adult accused and complainant,

the court cannot exclude the public from the trial in the interests of justice. 2

(False)

31. The court, the prosecutor and the accused all have the power to subpoena

witnesses. 1 (True)

32. The advantage of a joint trial is that it saves the state resources and time. 1 (True)

33. Joinder is permissive and not imperative. 1 (True)

34. The decision to separate a trial is at the discretion of the presiding officer. 1 (True)

35. Cross-examination of a witness by the court is permissible within the bounds of

reasonableness. 2 (False)

36. The principle of equality of arms can be related to the competence of both the

prosecutor and the representative for the defence. 1 (True)

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37. An ex tempore judgment does not infringe on the right of the accused to a speedy

trial. 1 (True)

38. An improper delay in delivering judgment undermines public confidence in the

judicial system. 1 (True)

39. Community service as a condition of a suspended sentence is not considered a

punishment. 2 (False)

40. Most statutory offences are enacted with an attendant penalty clause. 1 (True)

41. Tradition seems to indicate that the state and the accused must supply the

information required by the court during trial on sentencing. 1 (True)

42. Compensation and restitution are forms of restorative sentences. 1 (True)

43. Review is not solely the domain of the CPA. 1 (True)

44. The Superior Courts Act does not provide for review in criminal proceedings. 2

(False)

45. Judicial review has a common-law origin. 1 (True)

46. Any conviction, sentence or order of a lower court, and even a discharge after

conviction, are subject to leave to appeal. 1 (True)

47. An appeal on the facts relates to the merits of the matter in the trial court. 1 (True)

48. If the appellant files a notice of appeal after the prescribed period, he or she can

apply for condonation, although the court is not obliged to grant it. 1 (True)

49. Expungement takes place in one of three ways: automatically, on application or

when a certain period has lapsed. 1 (True)

50. The Constitution entrenches the right to a public trial. 1 (True)pg525 TB

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51. The right to a public trial can be validly limited where necessary. 1 (True)

52. In terms of the CJA, open justice is generally limited. 1 (True)

53. Open justice can be limited when the complainant is under the age of 18 years. 1

(True)

54. In principle, an accused is entitled to access exculpatory documents in the docket.

1 (True) pg 239 TB

55. Where an accused is charged with a common law offence, the only requirement is

that it be named in order for the charge sheet to be valid. 1 (True) PG38 SG

56. Sections 86 and 88 of the CPA make provision for the same action in respect of

the correction of a defect in the charge sheet. 1 (True) PG247 TB

57. Provided that the accused is not prejudiced, section 86 can be used to replace a

charge with another in the same matter. 2 (False) PG248 TB

58. Circuit courts deviate jurisdictionally from the fixed division or seat of court. 2

(False) PG258 TB

59. A child justice court is any court established in terms of the Children’s Act 38 of

2005. 2 (False) Act 75 of 2008

60. A child justice court can simultaneously serve as a children’s court where a child

accused is affected by social or welfare issues. 1 (True) CJA

61. During arraignment of an accused, assessors take an oath to deliver a true

judgment based on the merits of the case.-FALSE-BEFORE TRIAL

COMMENCES ASSESSORS MUST TAKE THE OATH

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62. Where the plea of an accused is ambiguous, the court must enter a plea of not

guilty and question the accused in terms of section 115 of the CPA.-TRUE

63. Truth and public benefit constitute a valid plea in terms of section 106 of the CPA.-
FALSE – IN TERMS OF SECTION 107 THE ACCUSED MAY PLEAD THIS
WHERE THE CHARGE IS ONE OF CRIMINAL DEFAMATION

64. An accused cannot object to the information in a charge sheet or indictment, but

can object to the fact that such charge sheet or indictment discloses insufficient

detail.- FALSE

65. In traditional plea bargaining, the parties bind the court to a certain sentence in

return for a guilty plea.- FALSE

66. A charge sheet (or indictment) does not necessarily have to disclose an offence

in order to be valid.-TRUE

67. An indictment must be served on the accused at most 14 days before the trial.-
FALSE – (10 DAYS)

68. It is mandatory for the prosecution to attach a list of witnesses to the charge

sheet.-TRUE

69. The prosecution cannot deviate from the information in a charge sheet or

indictment.- FALSE

70. Any number of participants in the same offence may be tried jointly.- TRUE

71. Any number of accessories after the same fact may be tried jointly.

72. Refusal to join is not in itself an irregularity.-TRUE

73. Section 115 of the CPA allows the accused to plead not guilty but to admit to

certain elements of the offence.-TRUE

74. Statutory plea bargaining can only take place where the accused is represented.-
TRUE

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75. A child offender cannot enter into a statutory or traditional plea bargain.-TRUE

76. Diversion is a form of plea bargaining - FALSE

77. It is not necessary for the court to question an accused who has pleaded guilty in

terms of section 112 of the CPA. -FALSE

78. A child offender can plead guilty at the preliminary-inquiry stage in terms of

section 112 of the CJA.- FALSE

79. Section 115 of the CPA can be used to alter a plea of guilty to one of not guilty

where, during the arraignment phases, the court finds that the accused has a

defence.- FALSE

80. After pleading, the accused is entitled, without exception, to a verdict.- FALSE

81. Sections 77 to 79 of the CPA apply to child offenders. - FALSE

82. A court will, in principle, grant a postponement to allow the accused an

opportunity to find work in order to pay for legal representation.FALSE

83. There are limitations to the length of time for which a child justice proceeding can

be postponed.- TRUE

84. A fair trial includes the right to a speedy trial.-TRUE

85. Section 336 of the CPA provides that, where an act constitutes an offence under

a statutory and a common law provision, the accused can be convicted and

sentenced under either the statutory or common law provision. -TRUE

86. There is no consensus on the part of South African courts as to whether the

conduct of a perpetrator that occurs over a long period of time should form the

subject of a single conviction or multiple convictions. - TRUE

87. A court can order the removal of a trial from one venue to another venue if the

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court deems it necessary or expedient.-TRUE

88. In a division of the high court, the presiding judge has discretion to sit with or

without assessors.-TRUE

89. A court of appeal can only interfere with the sentence of a lower court where that

court (the lower court) failed to exercise its discretion judicially in a proper and

reasonable manner. - True

90. An appeal court is ordinarily loath to interfere with the findings of a trial court on

questions of fact. - True

91. If an appellant who has noted and prosecuted his or her appeal fails to appear, the

court may summarily dismiss the appeal as a consequence of non-appearance.-

True

92. A court of appeal can hold an inspection in loco.-True

93. For purposes of appeal, it is important to have a reliable record of the proceedings

of the trial court. - True

94. A division of the high court has jurisdiction over all persons who reside or are

present within its area of jurisdiction, and it has the power to hear and determine

appeals from all lower courts within its area of jurisdiction and to review the

proceedings of all such courts. - True

95. A fugitive convicted person may not appeal.- True

96. Where the grounds of appeal contain several issues and conflicts of fact, it is

important for the magistrate to know what the issues are in order for him or her to

deal with them in the reasons for judgment.- True

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97. Where an appeal is not noted within the time periods indicated by the Criminal

Procedure Act and the Magistrates’ Courts Act, the court can condone the lateness

and allow the appeal to proceed -True.

98. An appeal brought under section 327 (CPA) must be disposed of by a division of

the high court with appeal jurisdiction after each party is afforded the opportunity

to present oral argument in open court.- False

99. The prosecution, in line with the English approach, may prosecute an appeal on

the facts.- False

100. The Constitution empowers the President to pardon or reprieve offenders.- True

101. During the opening of the State’s case, before any evidence is led, the prosecutor

is entitled to address the court for the purpose of explaining the charge and

indicating the evidence intended to be adduced for the prosecution.- True

102. In the case of an adult offender, it is possible for his or her record to be expunged

automatically, on application or after a fixed period.- True

103. In the case of a child offender, his or her record is expunged automatically at the

age of 18. - False

104. When an accused person challenges the correctness of his/her conviction and/or

sentence by a lower court, the correct procedure to be followed is that of review.-

False

105. In order to reconstruct a lost record, the recalling of witnesses who gave evidence

during the trial would be irregular.-True

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106. When a review judge directs a query to the magistrate who presided over the

criminal case under review, the latter may at any time when it suits him/her and in

any manner respond to such a query. - False

107. All courts have the power to exclude improperly obtained evidence and this power

does not fall exclusively within the jurisdiction of courts of review and appeal.-

True

108. If the magistrate, in a procedurally correct manner, performs his/her functions in a

proper and regular way but comes to a wrong conclusion on the merits, no

application may be made to the court of appeal before conviction. - True

109. A question of law arises only when the facts upon which the trial court based its

judgment could have a legal consequence other than that which the trial court

found. Accordingly, whether the trial court’s factual findings are right or wrong is

the only relevant factor in order to determine whether the court erred in law.-

False

110. A third party who has an interest in a verdict of guilty or in a subsequent order has

no locus standi in iudicio to appeal.- True

111. Leave to appeal is not required where the convicted person was, at the time of the

commission of the offence, at least 14 years of age but below the age of 21 years,

was not assisted by a legal representative at the time of conviction in a regional

court, and was sentenced to any form of imprisonment as contemplated in section

276(1) that was not wholly suspended. - False

112. Before any evidence is led, the prosecutor is entitled to address the court for the

purpose of explaining the charge and opening the evidence intended to be

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adduced for the prosecution, but without comment thereon.- True

113. In a criminal trial, an accused may decide to present his/her evidence either viva

voce or by means of a written statement. True

114. Where a charge is defective for want of an averment which is an essential

ingredient of the relevant offence, the defect can be cured by evidence at the trial

proving the matter which should have been averred.-TRUE

115. Section 86 makes provision for amendment of the charge and requires that the

proposed amendment must differ to such an extent from the original charge that it
is in essence another charge.- FALSE

116. When the accused is called upon to plead to a charge and it appears uncertain

whether he or she is capable of understanding the proceedings at the trial so as to

be able to make a proper defence, an enquiry into his or her mental state must be

made by the court, with the assistance of a general medical practitioner.-FALSE

117. Where an accused at a summary trial pleads not guilty, the presiding officer must

inform the accused that he or she is not obliged to answer any questions.-TRUE

118. An accused, or his or her counsel on behalf of the accused, may admit any fact

placed in issue. TRUE

119. Open justice can be limited where a witness is in danger of being exposed as a

state informant. TRUE

120. The notion of open justice establishes a protective function in respect of the fair-

trial rights of the accused. TRUE

121. In general, the accused is entitled to access exculpatory documentation in the

docket. TRUE

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122. Where the legal adviser replies in writing or orally to any question by the court in

terms of section 115(3), the accused must also confirm this, but the court may not

require the accused to answer the questions personally. FALSE

123. At the trial in the regional court of an accused on a charge of murder, the judicial

officer must summon two assessors to assist him or her, unless the accused

requests that the trial proceed without assessors. TRUE

124. Section 112 can be used when an accused pleads guilty to a serious or less

serious offence. TRUE

125. It is possible for the accused to issue a written statement in terms of section 112.
TRUE

126. Only the accused person appears in the dock. TRUE

127. Where persons are jointly charged, the mere possibility of prejudice is not sufficient

to justify an order for separation of trials in such a case. TRUE

128. Persons charged with separate offences alleged to have been committed at the

same time and place, or at the same place and about the same time, may be tried

jointly where the prosecutor informs the court that evidence admissible at the trial

of one person will also be admissible as evidence at the trial of another person or

persons. TRUE

129. If the accused’s refusal to plead is accompanied by such improper behaviour that

it obstructs the conduct of the proceedings of the court, the court may order his or

her removal and direct that the trial proceed in his or her absence. TRUE

130. When the accused is called upon to plead to a charge, and it appears uncertain

whether he or she is capable of understanding the proceedings at trial so as to be

able to put forward a proper defence, an enquiry into his or her mental state should

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be made. TRUE

131. Statutory plea bargaining in terms of section 105A of the Criminal Procedure Act

means that the prosecutor can now reach an agreement with the defence on the

sentence to be imposed. FALSE

132. The indictment must be served on the accused in accordance with the rules of

court. Service is complete the moment that the indictment is posted to the accused

and received by him or her. TRUE

133. A charge sheet containing the following averments complies with all necessary
requirements in terms of section 84(1) of the Criminal Procedure Act 51 of 1977:

“That the accused is guilty of unlawfully and intentionally killing Joey Smith, an

adult female on the 21st of January 2001 at Groenkloof in the district of Pretoria.”

TRUE

134. Where an accused is convicted of both driving under the influence of liquor and

reckless driving, and both counts are based on the same facts, this would not

constitute an incorrect duplication of convictions. TRUE

135. If assessors abscond during the trial without good reason and the magistrate

continues with the trial without them, this amounts to a fatal irregularity which

vitiates the proceedings. TRUE

136. Generally, where an accused is caught selling dagga, he or she may be convicted

only of selling and not also of possession of the rest of the unsold dagga. TRUE

137. The court must enter a plea of not guilty if the accused refuses to plead or answer

directly to the charge. TRUE

138. If the totality of the accused’s criminal conduct can be accommodated in one single

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charge, the accused may not be convicted on multiple charges. TRUE

139. An accused can now be found guilty even though the indictment does not disclose

an offence, as long as the evidence proves the offence. TRUE

140. Section 86 of the Criminal Procedure Act makes provision for amendment of the

charge and not for its replacement by an altogether new charge. TRUE

141. The rule against the splitting of charges has in fact always been directed at the

duplication of convictions and was designed to apply in the field of punishment.

TRUE

142. Where an accused is charged with both rape and incest arising from the same act

of intercourse, he will be convicted of both.

FALSE
143. If an assault is committed pursuant to or in the course of an attempt to escape, the

accused should be convicted of one of these offences only. TRUE

144. The prosecution or the accused may apply for the recusal of an assessor. TRUE

145. Threatening a judicial officer will materially affect his or her impartiality, and his or

her refusal to recuse himself or herself on this ground is therefore irregular.

FALSE

146. An accused may plead truth and public benefit where the charge is one of criminal

defamation. TRUE

147. It is regular for a court to put questions directly to an accused who is represented.
FALSE

148. The right to silence has been greatly and negatively affected by the introduction of

the “plea explanation” procedure at arraignment in terms of section 115 of the CPA.

TRUE

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149. In the case of traditional plea bargaining, the prosecutor and the defence cannot

bind the court to a sentence. However, the prosecutor may agree to suggest a

possible lighter sentence to the court. TRUE

150. After the accused has brought an application for a separation of trials, a proper

refusal to order a separation of trials will amount to an infringement of the

accused’s right to a fair trial. FALSE

151. An accused may be joined with any other accused in the same criminal

proceedings at any time before any evidence has been led in respect of the charge

in question. TRUE

152. The general principle is that the conducting of criminal trials should take place in
open court and in the presence of the accused. TRUE

153. A criminal trial commences once an accused has pleaded in a court which has the

required jurisdiction to hear evidence -TRUE.

154. The phrase “in the course of a criminal trial” refers to all procedures which may or

must be followed from the time the accused has pleaded until a verdict on the

merits.- TRUE

155. A criminal trial can be broadly described as a state-sponsored, public, judicial and

primarily oral hearing.- TRUE

156. The seven fundamental principles which govern a criminal trial are trial fairness,

legality, judicial impartiality, equality of arms, judicial control, orality and finality.-

TRUE

157. At the end of a criminal trial, the court must consider and deliver its verdict based

on the state’s ability to satisfy its burden of proof.- FALSE

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158. An extempore judgment is one in which the court postpones its judgment owing to

the complexity of the merits.- FALSE

159. It is generally impossible for the accused to be convicted on another charge where

the prosecutor manages to prove the elements of that crime as opposed to the

crime as charged at the trial.- FALSE

160. In cases where the accused is not legally represented, the court will be slow to

conclude that the absence of a warning concerning the applicability of competent

verdicts renders the trial unfair.- FALSE

161. A sentence is any measure applied by a court to the person convicted of a crime
and which finalises the case, except where specific provision is made for

reconsideration of that measure.-TRUE

162. All penalty clauses providing for the imposition of a fine must be read together with

Act 105 of 1997.-FALSE

163. In practice, after conviction, the accused indicates his or her previous convictions-
FALSE.
164. Tradition dictates that the accused provides the information required by the court

during the trial for the purpose of sentencing.- FALSE

165. The law is a precise instrument and therefore any consideration of what is deemed

cruel, inhumane and degrading conduct is based on the certainty of doctrinal law.-
FALSE

166. Declaration as a dangerous criminal is a sui generis sentence which negates the

traditional jurisdiction of the district court.- FALSE

167. An habitual criminal is one considered by society to be potentially harmful.-FALSE

168. Periodical imprisonment is a form of imprisonment where the convict serves

periods of his or her sentence on an outpatient basis at a psychiatric institute-

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FALSE

169. An accused who is dissatisfied with the decision of a lower court on fact or law may

bring the matter before a division of a higher court by way of appeal or review.-

TRUE

170. Judicial review is a process which allows a court to set aside a statute or provision

on the grounds of unconstitutionality.- TRUE

171. No right, whether entrenched or not, is absolute.- TRUE

172. Constitutional matters include issues of interpretation, protection or enforcement

of the Constitution.- TRUE

173. The criteria for an acceptable limitation of rights are prescribed by section 39 of

the Constitution - FALSE

174. If an adult accused wishes to appeal the decision of a lower court, no leave to

appeal is required.- FALSE

175. When it is alleged in a lower court that a law is constitutionally invalid, the decision

as to invalidity rests with the lower court, subject to review by a higher court on the

basis of section 171 of the Magistrates’ Courts Act - FALSE.

176. Owing to the supreme nature of the Constitution, direct access to the Constitutional

Court is permitted regarding any issue relating to a procedural irregularity.-

FALSE

177. It is a general rule that there is no appeal before conviction.- TRUE

178. Provided that the accused is not prejudiced, section 86 can be used to replace a

charge with another in the same matter. FALSE

179.179.

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180.180.

181. During arraignment of an accused, assessors take an oath to deliver a true

judgment based on the merits of the case. FALSE

182. Where the plea of an accused is ambiguous, the court must enter a plea of not

guilty and question the accused in terms of section 115 of the CPA. TRUE

183. Refusal to join is not in itself an irregularity. TRUE

184. Statutory plea bargaining can only take place where the accused is represented.
TRUE
185. An appeal court is ordinarily loath to interfere with the findings of a trial court on

questions of fact. TRUE

186. A court of appeal can hold an inspection in loco. TRUE

187. For purposes of appeal, it is important to have a reliable record of the proceedings

of the trial court. TRUE

188. A division of the high court has jurisdiction over all persons who reside or are

present within its area of jurisdiction, and it has the power to hear and determine

appeals from all lower courts within its area of jurisdiction and to review the

proceedings of all such courts. TRUE

189. the President to grant any person either temporary amnesty or immunity. TRUE
190. In the case of an adult offender, it is possible for his or her record to be expunged

automatically, on application or after a fixed period.pp TRUE

191. In the case of a child offender, his or her record is expunged automatically at the

age of 18. - FALSE

192. When an accused person challenges the correctness of his/her conviction and/or

sentence by a lower court, the correct procedure to be followed is that of review.

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FALSE

193. Before any evidence is led, the prosecutor is entitled to address the court for the

purpose of explaining the charge and opening the evidence intended to be

adduced for the prosecution, but without comment thereon.- TRUE

194. In a criminal trial, an accused may decide to present his/her evidence either viva

voce or by means of a written statement. - TRUE

195. In the case of traditional plea bargaining, the prosecutor and the defence cannot
bind the court to a sentence. However, the prosecutor may agree to suggest a

possible lighter sentence to the court. - TRUE

196. After the accused has brought an application for a separation of trials, a proper

refusal to order a separation of trials will amount to an infringement of the

accused’s right to a fair trial. - FALSE

197. An accused may be joined with any other accused in the same criminal

proceedings at any time before any evidence has been led in respect of the charge

in question. -TRUE

198. The general principle is that the conducting of criminal trials should take place in

open court and in the presence of the accused. -TRUE

199. Generally, where no preparatory examination has been held, the indictment must
be accompanied by a summary of the salient facts of the case in order to inform

the accused of the allegations against him or her.

200. When the accused is called upon to plead to a charge, and it appears uncertain

whether he or she is capable of understanding the proceedings at trial so as to be

able to put forward a proper defence, an enquiry into his or her mental state should

be made. TRUE

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201.201.

202. The indictment must be served on the accused in accordance with the rules of

court. Service is complete the moment that the indictment is posted to the accused

and received by him or her. FALSE

203. Where a charge is defective for want of an averment which is an essential

ngredient of the relevant offence, the defect can be cured by evidence at the trial

proving the matter which should have been averred. TRUE

204. Section 86 makes provision for amendment of the charge and requires that the

proposed amendment must differ to such an extent from the original charge that it

is in essence another charge. FALSE

205. Where an accused at a summary trial pleads not guilty, the presiding officer must

inform the accused that he or she is not obliged to answer any questions. TRUE

206. An accused may plead truth and public benefit where the charge is one of criminal

defamation. TRUE

207. The right to a fair trial includes the right to a prosecutor who acts without fear,

favour or prejudice.- TRUE

208. Section 186 of the Criminal Procedure Act empowers the court to recall witnesses
who have previously testified at the trial so that they can be examined by the
court.- TRUE

209. In terms of section 63(4) of the Child Justice Act, the court may not interfere in the

cross-examination of a child.- FALSE

210. The court must control and manage the proceedings within the bounds of the law

and without sacrificing its impartiality. - TRUE

211. The presiding officer must make sure that the accused understands the language

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used by a witness.-TRUE

212. The principle of finality demands that the state and the accused have an

opportunity to reopen their cases where they previously failed to examine evidence

introduced in the main trial.- FALSE

213. Cross-examination partly by the accused and partly by his or her legal

representative must be avoided.-TRUE

214. Section 174 (CPA) provides that, if there is no chance that the accused will

incriminate himself or herself during his or her defence, he or she must be

discharged from prosecution.- FALSE

215. The so-called “Shuping test” is the constitutional test for section 174 (CPA).-
FALSE

216. An accused may not be discharged at the end of the state’s case if there is a

possibility that he or she will incriminate himself or herself during his or her

defence.- FALSE

217. The constitutional right of the public to justice demands that an application in terms

of section 174 (CPA) be denied if there is a reasonable possibility that the accused

will discharge the burden of proof in his or her defence.-FALSE

218. In order to definitively prove the innocence of the accused, the defence may
proceed with its case even where the court has granted a section 174 (CPA)

discharge. - FALSE

219. The accused must be informed of the charge against him or her in sufficient detail

to answer it. - TRUE

220. If there is no proof that the accused was a perpetrator or co-perpetrator or

accomplice in the crime charged, he or she may be convicted as an accessory

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after the fact to the crime charged should there indeed be proof that he or she

acted in such capacity.- TRUE

221. The court is functus officio after delivery of judgment.- TRUE

222. Section 176 is primarily aimed at a situation where a court inadvertently sentences

the accused to punishment which, on further consideration, is too harsh.- FALSE

223. A court has a wide-ranging sentencing discretion.- TRUE

224. Rabie 1975 (4) SA 855 emphasised the role of the criminal, the crime and society

in the implementation of punishment.- TRUE

225. If a court is satisfied that substantial and compelling circumstances exist which

justify a lesser sentence, it must deviate from the sentence prescribed.-TRUE

226. After previous convictions have been proven, the accused is entitled to lead

evidence in aggravation of sentence.- FALSE

227. As a general principle, young offenders are sentenced more leniently than adults.-
TRUE

228. A person convicted time and again for similar offences will progressively be

punished more severely.- TRUE

229. One of the first decisions of a sentencing court is whether to remove the offender

from society or to punish him or her within the community.- TRUE

230. Ordinary imprisonment for a term determined by the court is the most common

form of imprisonment.- TRUE

231. Life imprisonment can only be imposed by a division of the high court, unless the

Criminal Law Amendment Act 105 of 1997 allows a regional court to impose

imprisonment for life.- TRUE

232. The Criminal Procedure Act provides that any reference in a statute to a minimum

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period of imprisonment of more than three months must be construed as a

reference to a period of exactly three months.- FALSE

233. Courts do not have a wide discretion with regard to the imposition of a fine as a

form of sentence.- FALSE

234. Sections 287(2), 288 and 289 of the Criminal Procedure Act provide the means by
which fines may be recovered.- TRUE

235. In terms of section 172 of the Constitution, the Supreme Court of Appeal is a

competent court as a court of first instance on a constitutional matter.- TRUE

236. In terms of section 172 of the Constitution, an association acting in the interests of

its members lacks locus standi in the Constitutional Court.- FALSE

237. Any person may, by way of the action procedure, approach any court to confirm

an order of constitutional invalidity.- FALSE

238. Access to courts competent to hear constitutional matters may be gained by way

of leave to appeal.- TRUE

239. There is a vast difference between appeal and review proceedings, since only one

aims at setting aside a conviction or sentence.- FALSE

240. A review may be brought against the finding of a lower court on any point of law
and/or fact, whereas an appeal may only be brought on the ground of a specific

procedural irregularity.- FALSE

241. In an appeal, the parties are confined to what appears on the record, but, in a

review, it is permissible to prove any of the grounds for review.- TRUE

242. A review is generally not permissible on a finding of fact, unless the finding is so

unreasonable that it constitutes an irregularity.- TRUE

243. After the decision in Ntuli 1997 (2) SACR 19 (CC), all convicted persons had an

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absolute or unlimited right of appeal.- TRUE

244. Evidence of certain formal matters may be given by way of affidavit, but is subject

to the right of the opposing party to object to such evidence.- TRUE

245. Where a magistrate has made a mistake in the recording of the evidence, he/she
cannot correct the mistake after sentence as he/she is then functus officio.-

TRUE

246. It is accepted practice that the prosecutor in a superior court trial is obliged to call

all the witnesses who made depositions at the preparatory examination.- FALSE

247. Where an accused has more than one legal representative, only one of the

representatives is permitted to cross-examine any particular state witness.-

FALSE

248. If an accused’s application for discharge at the end of the state’s case is

successful, the director of public prosecutions (or public prosecutor) may appeal

in terms of section 310.- TRUE

249. The legislature did not specially provide for an “accessory before the fact” as a

competent verdict on a charge of having committed an offence. However, such a

person can be charged and punished as a principal offender.- FALSE

250. All sentences should take into account only the (so-called) main purposes of
punishment, namely retribution, deterrence, prevention and rehabilitation.- TRUE

251. In the United States of America, the death penalty itself has not been held to be

unconstitutional.- TRUE

252. In terms of the Constitution, the Constitutional Court found the death penalty not

to be cruel, inhuman and degrading.- FALSE

253. Life imprisonment is an indeterminate sentence, because, when it is imposed, it is

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unknown for how long the offender will be imprisoned.- TRUE

254. A court may discharge an offender with a mere caution and, although the discharge

has the effect of an acquittal, the conviction is still recorded and counts as a

previous conviction.- TRUE

255. A full court is a court of appeal and not a court of first instance, and, consequently,

a criminal trial cannot be conducted before such a court.- TRUE

256. A child justice court is any court properly constituted in terms of the Children’s

Act 38 of 2005.- FALSE

257. If a child offender is diverted at the preliminary-inquiry stage, he/she must still

appear in a child justice court to confirm his/her acknowledgement of guilt.

FALSE

258. A child offender will never be subjected to a summary trial, because the preliminary

inquiry is designed to exclude this stage of the criminal process. TRUE

259. Bail is a form of monetary release from custody. TRUE

260. Bail is inherently penal in nature. FALSE

261. Bail can be used to deter other would-be offenders. TRUE

262. During a bail application, the court may consider, as a factor, the prevalence of the

type of crime with which the accused has been charged. TRUE
263. The accused person’s previous convictions or pending charges are irrelevant for

purposes of bail. FALSE

264. In limited instances, bail can be granted by the police. TRUE

265. In limited circumstances, bail can be granted by the prosecution service. TRUE

266. A child offender may be released on bail by an authorised prosecutor prior to the

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first appearance at a preliminary inquiry. TRUE

267. An accused may bring an action for damages where he/she is denied police bail

on malicious grounds. TRUE

268. Refusal of bail is appealable by the accused. TRUE

269. The exceptions to the general rule that a trial must take place in the presence of

the accused may include “exclusion of the accused due to the misbehaviour of the

accused person’s witnesses”. FALSE

270. The exceptions to the general rule that a trial must take place in the presence of

the accused may include “the situation where a co-accused applies to court to

exclude an accused”. FALSE

271. The exceptions to the general rule that a trial must take place in the presence of

the accused may include “instances where the accused gives evidence by means

of closed-circuit television or similar electronic media”. TRUE

272. In general. TRUE

- a trial may take place in the absence of the accused where he/she waives

his/her right to attend

- the verdict and sentence must, notwithstanding (a) above, be handed down in

the presence of the accused or his/her duly authorised representative

- the right to be present can be limited in certain circumstances

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MAY / JUNE 2020 EXAMINATION

Question 1

In general.

(a) a trial may take place in the absence of the accused where he/she waives his/her right to
attend.

(b) the verdict and sentence must, notwithstanding (a) above, be handed down in the presence
of the accused or his/her duly authorised representative.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (b) is incorrect.
[4] Only statement (a) is incorrect.

Question 2

The exceptions to the general rule that a trial must take place in the presence of the accused may
include:

(a) exclusion of the accused due to the misbehaviour of the accused person’s witnesses

(b) the situation where a co-accused applies to court to exclude an accused

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 3

(a) The charges against an accused are formulated before the completion of the investigation.

(b) An accused is required to plead to the charges and undergo a preparatory examination
before he/she is arraigned for trial.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 4

(a) A plea of autrefois acquit cannot be sustained in terms of section 122A of the CPA.
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(b) A plea of autrefois convict cannot be sustained in terms of section 122A of the CPA.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

[Turn over]
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Question 5

(a) Section 205 is specially designed to compel a potential witness to reveal his knowledge of
an alleged crime, which he or she refuses to disclose to the police.

(b) In certain circumstances, searches may be conducted without a warrant.

[1] All of the statements are incorrect.

[2] All of the statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 6

(a) Bail is a form of monetary release from custody.

(b) Bail is inherently penal in nature.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 7

(a) During a bail application, the court may consider, as a factor, the prevalence of the type of
crime with which the accused has been charged.

(b) The accused person’s previous convictions or pending charges are irrelevant for purposes
of bail.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 8

(a) The strict rules of evidence are relaxed during bail applications.

(b) Hearsay is admissible during a bail application.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

[Turn over]
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Question 9

(a) A charge sheet (or indictment) does not necessarily have to disclose an offence in order to
be valid.

(b) An indictment must be served on the accused at most 14 days before the trial.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 10

(a) In principle, an accused is entitled to access exculpatory documents in the docket.

(b) Where an accused is charged with a common law offence, the only requirement is that the
offence should be named in order for the charge sheet to be valid.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 11

(a) Where a charge is defective because of the lack of an express averment which is an
essential ingredient of the relevant offence, the defect can be cured by evidence at the trial
proving the matter which should have been averred.

(b) Section 86 makes provision for amendment of the charge, and requires that the proposed
amendment must differ to such an extent from the original charge that it is in essence
another charge.

[1] Both statements are incorrect.

[2] Both the statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statements (b) is incorrect.

Question 12

(a) The court must enter a plea of not guilty if the accused refuses to plead or answer directly
to the charge.

(b) If the totality of the accused’s criminal conduct can be accommodated in one single charge,
the accused may not be convicted on multiple charges.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

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Question 13

(a) The rule against the splitting of charges was in fact always directed at the duplication of
convictions, and was designed to apply in the field of punishment.

(b) Where an accused is charged with both rape and incest arising from the same act of
intercourse, he will be convicted of both offences.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 14

(a) Threatening a judicial officer materially affects his or her impartiality, and his or her refusal
to recuse himself or herself on this ground is, therefore, irregular.

(b) An accused may plead truth and public benefit where the charge is one of criminal
defamation.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 15

(a) In terms of section 84(1) of the CPA, any prosecutor who realizes that he has incorrectly
charged the accused person, may correct the defect by way of evidence.

(b) The Court in Barkett’s Transport (Edms) Bpk 1988 (1) SA 157 (A) held that Section 86 makes
provision for the amendment of the charge and not for the replacement thereof by an
altogether new charge.

[1] Both statements are incorrect.

(2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 16

(a) Where the plea of an accused is ambiguous, the court must enter a plea of not guilty and
question the accused in terms of section 115 of the CPA.

(b) Truth and public benefit constitute a valid plea in terms of section 106 of the CPA.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (b) is incorrect.
[4] Only statement (a) is incorrect.

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Question 17

(a) The Constitution entrenches the right to a public trial.

(b) The right to a public trial can be validly limited where necessary.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 18

(a) Any number of participants in the same offence may be tried jointly.

(b) Any number of accessories after the same fact may be tried jointly.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 19

(a) Section 336 of the CPA provides that, where an act constitutes an offence under a statutory
and a common law provision, the accused can be convicted and sentenced under either the
statutory or common law provision.

(b) A court can order the removal of a trial from one venue to another venue if the court deems
it necessary or expedient.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 20

(a) It is not necessary for the court to question an accused who has pleaded guilty in terms of
section 112 of the CPA.

(c) Section 115 of the CPA can be used to alter a plea of guilty to one of not guilty where, duringthe
arraignment phases, the court finds that the accused has a defence.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

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Question 21

(a) Section 186 of the Criminal Procedure Act empowers the court to recall witnesses who have
previously testified at the trial so that they can be examined by the court.

(b) In terms of section 63(4) of the Child Justice Act, the court may not interfere in the cross-
examination of a child.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 22

(a) An accused may not be discharged at the end of the state’s case if there is a possibility that
he or she will incriminate himself or herself during his or her defence.

(b) The constitutional right of the public to justice demands that an application in terms of section
174 (CPA) be denied if there is a reasonable possibility that the accused will discharge the
burden of proof in his or her defence.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 23

(a) If there is no proof that the accused was a perpetrator or co-perpetrator or accomplice in the
crime charged, he or she may be convicted as an accessory after the fact to the crime
charged, should there indeed be proof that he or she acted in such capacity.

(b) The court becomes functus officio after delivery of the judgment.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

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Question 24

(a) If a court is satisfied that substantial and compelling circumstances exist which justify a
lesser sentence, it must deviate from the sentence prescribed.

(b) After previous convictions have been proven, the accused is entitled to lead evidence in
aggravation of sentence.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 25

(a) There are limitations to the length of time for which a child justice proceeding can be
postponed.

(b) A fair trial includes the right to a speedy trial.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statements (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 26

(a) Section 115 of the CPA allows the accused to plead not guilty but to admit to certain
elements of the offence.

(b) Statutory plea bargaining can only take place where the accused is represented.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 27

(a) At the end of a criminal trial, the court must consider and deliver its verdict based on the
state’s ability to satisfy its burden of proof.

(b) An extempore judgment is one in which the court postpones its judgment owing to the
complexity of the merits.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

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Question 28

(a) A sentence is any measure applied by a court to the person convicted of a crime and which
finalises the case, except where specific provision is made for reconsideration of that
measure.

(b) In practice, after conviction, the accused indicates his or her previous convictions.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 29

(a) Declaration as a dangerous criminal is a sui generis sentence which negates the traditional
jurisdiction of the district court.

(b) A habitual criminal is one considered by society to be potentially harmful.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 30

(a) If an adult accused wishes to appeal the decision of a lower court, no leave to appeal is
required.

(b) An accused who is dissatisfied with the decision of a lower court on fact or law may bring
the matter before a division of a higher court by way of appeal or review.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 31

(a) If an appellant who has noted and prosecuted his or her appeal fails to appear, the court
may summarily dismiss the appeal because of his or her non-appearance.

(b) It is a general rule that there is no appeal before conviction.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

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Question 32

(a) In the case of an adult offender, it is possible for his or her record to be expunged
automatically, on application or after a fixed period.

(b) In the case of a child offender, his or her record is expunged automatically at the age of 18.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 33

(a) As soon as an assessor receives information detrimental to the accused which has not been
proved in evidence, he/she must recuse himself/herself from the case.

(b) An assessor must show absolute partiality at all times:

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 34

Some of the requirements of the test for the presence of judicial bias entail that:

(a) There must be a suspicion that the judicial officer might be, not would be, biased.

(b) The suspicion must be that of a reasonable person in the position of the accused.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

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Question 35

The standards which must be maintained by the judicial officer in the questioning of witnesses as
set out in Mabuza 1991 (1) SACR 636 (O) are, amongst others that:

(a) The court should not conduct its questioning in such a manner that its impartiality can be
questioned or doubted.

(b) The court should not intimidate or upset a witness or the accused so that his answers are
weakened, or his credibility shaken.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 36

(a) The principle of finality demands that the state and the accused have an opportunity to
reopen their cases where they previously failed to examine evidence introduced in the main
trial.

(b) In terms of the CJA, open justice is generally limited.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 37

The following are some of the circumstances under which a plea may be changed from ‘guilty’ to
‘not guilty’, namely:

(a) if the court is in doubt as to whether the accused is, in law guilty of the offence to which he
or she has pleaded guilty, or;

(b) the court doubts whether or not the accused admits an allegation in the charge sheet, or;

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

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Confidential CPR3701
Page 14 of 13 May/June 2020
Question 38

(a) An appeal is employed to challenge a conviction or sentence, or both.

(b) A review is used to address the situation where a party is aggrieved about an irregularity
which occurred in arriving at the conviction.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 39

The Constitutional Court in Ex Parte: Minister of Safety and Security: In re: S v Walters 2002 (4)
SA 613 (CC), stated that the shooting of a fleeing suspect is not permitted unless:

(a) The suspect poses a threat of violence to the arrester or others.

(b) The suspect is alleged, on reasonable grounds of having committed a crime involving the
infliction or threatened infliction of serious bodily harm.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

Question 40

(a) The appeal court will not interfere with the trial court’s exercise of discretion, unless the
appeal court is convinced that the trial court has not exercised its discretion properly.

(b) If the application for leave to appeal is refused in the high court, the appellant may address
a petition to the president of the Republic of South Africa.

[1] Both statements are incorrect.

[2] Both statements are correct.
[3] Only statement (a) is incorrect.
[4] Only statement (b) is incorrect.

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OCT/ NOV 2019 EXAMINATION – QUESTIONS AND ANSWERS

SECTION A – QUESTION 1

This part consists of true or false questions. Each question must be

answered with a simple “True” of ‘False”. You are not required to
elaborate on your answer

1. Criminal Procedure provides a process that vindicates adjectival criminal

procedural law goals effectively - FALSE

2. Procedural law puts substantive criminal law into action, and

the rules of criminal procedure form part of the procedural law.
- FALSE

3. A prosecutor may not withdraw a charge without the consent of

his DPP – FALSE

4. Persons who have been found guilty by a Superior Court may

automatically appeal to the Supreme Court of Appeal- False

5. The Supreme Court of Appeal can only amend a sentence on

review – False

6. A regional magistrates court may try all crimes except treason,

murder and rape – False

7. The accused can be described as domininus litis – False

8. It is vital that courts exercise some degree of control over

decisions taken by the prosecution to ensure fairness to the
accused. – True

9. South Africa follows a system of mandatory prosecution –

False

10. Previous convictions are irrelevant in bail applications –

False

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SECTION B

QUESTION 2

1) Whilst sleeping in his house with his family, X is awoken by noise in the kitchen.
Fearing his and his family’s lives, he retrieves his firearm from its safe, and
proceeds towards the direction of the noise. Upon arrival in the kitchen, he accosts
X and Y, who are in possession of a television set which he recognises as his own.
Upon seeing X, they (Y and Z) decide to run away, dropping the television set to the
floor. As they run out of the house. X chases after them. Realising that he cannot
possibly catch them, he fires several shots in the direction of Y and Z, in order to
stop their flight. In the process, two of the shots fatally strike Z killing him. Y
manages to escape.

a) Discuss in the context of the above-mentioned facts, the factors which where
set out by the Constitutional Court in Ex Parte: Minister of Safety and Security:
In
re: S v Walters 2002 (4) SA 613 (CC) at 643, regarding the use of force to in
order to effect arrest.
(10)
In Ex Parte: Minister of Safety and Security: In Re S v Walters and Another 2002 (4)
SA 613 (CC) the Constitutional Court declared section 49 (2) inconsistent with the
Constitution and accordingly invalid. The reason for this was that section 49 (2)
constituted a disproportion between the rights infringed and the desired outcome,
since it authorised the use of deadly force for any schedule 1 offence committed. The
fundamental principles decided on by the Constitutional Court respectively are still
valid and these principles are reflected in the new amendments. The principles laid
down by the Constitutional Court in the Walters case are the following:

i. The purpose of arrest is to bring before court for trial persons

suspected of having committed offences.
ii. Arrest is not the only means of achieving this purpose, nor always the
best.
iii. Arrest may never be used to punish a suspect.
iv. Where arrest is called for, force may be used only where it is
necessary in order to carry out the arrest.
v. Where force is necessary, only the least degree of force
reasonably necessary to carry out the arrest may be used.
vi. In deciding what degree of force is both reasonable and necessary,
all the circumstances must be taken into account, including the threat
of violence the suspect poses to the arrester or others, and the nature
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committed; the force being proportional in all these circumstances.

vii. Shooting a suspect solely in order to carry out an arrest is
permitted in very limited circumstances only.
viii. Ordinarily such shooting is not permitted unless the suspect poses a
threat of violence to the arrester or others or is suspected on
reasonable grounds of having committed a crime involving the
infliction or threatened infliction of serious bodily harm and there are
no other reasonable means of carrying out the arrest, whether at that
time or later.
ix. These limitations in no way detract from the rights of an arrester
attempting to carry out an arrest to kill a suspect in self-defense or
in defence of any other person.
b) Do the actions of X in firing shots at Y and Z conform to the
Constitutional Court injunction? Briefly state the reasons why you
agree or disagree with X’s Actions (5)

From the given set of facts, the actions of Jake in firing shots at Paul and
Zakes do not conform to the Constitutional Court injunction. The Shooting
a suspect solely in order to carry out an arrest is permitted in very limited
circumstances only, for instance when a suspect is posing a threat of
violence to the arrester or others. In this scenario, the suspects were
fleeing from the scene and thus not posing any threat. There was no
immediate threat to life or body harm and therefore the shooting was
disproportionate to the offence. I therefore disagree with Jakes actions.

2) Release on bail shall be refused, if such release is not in the interests of

justice. Discuss the grounds upon which release might be said to be not in
the interests of justice. (5)

Section 60(4) provides that the refusal to grant bail and the detention of an accused in
custody shall be in the interests of justice where one or more of the following grounds
are established:
(a) where there is the likelihood that the accused, if released on bail, will
endanger the safety of the public or any particular person or will commit a
Schedule 1 offence; or
(b) where there is the likelihood that the accused, if released on bail, will attempt to
evade his or her trial; or
(c) where there is the likelihood that the accused, if released on bail, will
attempt to influence or intimidate witnesses or to conceal or destroy
evidence; or
(d) where there is the likelihood that the accused, if released on bail, will
undermine or jeopardise the objectives or the proper functioning of the
criminal justice system, including the bail system; or
(e) where in exceptional circumstances
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or security

2) Discuss the powers of private persons to arrest another person (5)

Any private person may without warrant arrest any person

a) Who commits or attempts to commit in his presence or whom he reasonably

suspects of having committed an offence referred to in Schedule 1
b) Whom he reasonably believes to have committed an offence and to be escaping
from and to be freshly pursued by a person whom such private person reasonably
believes to have authority to arrest that person for that offence
c) Whom he is by any law authorised to arrest without warrant in respect of any offence
specified in that law
d) Whom he sees engaged in an affray
e) The owner, lawful occupier or person in charge of property on or in respect of which
any person is found committing any offence, and any person authorised thereto by
such owner, occupier or person in charge, may without warrant arrest the person so
found
The power conferred upon a private citizen to arrest without a warrant should be exercised
sparingly and with great circumspection. The courts generally put much weight on the right
to freedom. Thus, the Morapedi case illustrate that only when the provisions of law are
complied with can a lawful arrest be effected.
QUESTION 3

1) B takes a stroll on the street near his house. A accosts B and assaults him (B)
and relieves B of his (B) wallet and cellphone. Upon arrest A is charged with
robbery. Name the verdicts that might be considered by the court as
competent in light of the facts above.
(5)

Robbery comprises the elements of assault and theft. If the state charges X with robbery
but cannot prove that X assaulted Y in order to take his wallet, robbery has not been
proven and X cannot be found guilty of robbery. If, however, the state proves that X
assaulted the complainant, Y, and then took his wallet without his consent, the commission
of the offence’s “assault” (in any form) and “theft” has been proven – section 260.

2) Name/List any (sentences) introduced by the Child Justice Act 75 of 2008 (5)
(a) Imprisonment (not for children < 14years old)
(b) Compulsory residence in a care centre
(c) Correctional Supervision
(d) Fines (only after proper investigation into means of parent/guardian/offender to pay
the fine is conducted)
(e) Restorative Justice
(f) Community-Base sentence

3) Z is charged with driving his vehicle recklessly. After Z has pleaded at the trial,
it transpires that the prosecutor
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the incident took place on a public road. Discuss how, in terms of the Criminal
Procedure Act 51 of 1977 this oversight may be rectified?
(10)

As regards section 86, the charge sheet is amended in order to insert an essential
allegation.
Section 86(1): makes provision for amendment of an indictment/charge-sheet in
the following situations:
1. Where it is defective for want of an essential averment
2. Where there is a variance between the averment in the charge and the evidence
offered in proof of such averment
3. Where words or particulars have been omitted, unnecessarily inserted
4. Where any other error is made

Such amendment must not prejudice the accused in his defence, and the replacement of
the charge as a whole (which is not allowed) is not at issue here. There will not be
prejudice to the accused if there is but a slight variance or where it is clear that the
defence would have remained exactly the same had the State originally presented
the charge in the amended form.

In discussing section 88 (rectifying a defect in a charge sheet by leading evidence), namely

that where the defect is brought to the attention of the court before judgment is passed, the
corrective effect of the evidence will be cancelled. The following requirements:

• The offence must at least have been mentioned in the charge.

• The formulation must be such that the charge sheet in fact
embodies the offence in fact.
• Proper evidence must be led.
• Section 88 does not authorise the replacement of one offence
with another.

Also, according to section 123, the DPP is authorised to rectify a fatal defect in the case for
the state by converting a summary trial into a preparatory examination (Bham v Lutge 1949
(3) SA 392 (T)).

4) Briefly discuss the objectives of sentencing child offenders in terms of the

Child Justice Act 75 of 2008
(5)

a) encourage the child to understand the implications of and be

accountable for the harm caused;
b) promote an individualised response which strikes a balance
between the circumstances of the child, the nature of the
offence and the interests of society;
c) promote the reintegration of the child into the family and community;
d) ensure that any necessary supervision, guidance, treatment or
services which form part of the sentence assist the child in the
process of reintegration; and
e) use imprisonment only as a measure of last resort and only for the
shortest appropriate period of time.

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QUESTION 4

1) X stands trial in the high court on a charge of murder. She is tried by a judge
who is assisted by two assessors. At the close of the case, it becomes clear
that the members of the court (the presiding officer and the assessors) do not
agree on the finding. Discuss the legal principles which find application in this
regard (10)

According to section 145(3) and (4) before the trial commences, the assessors must
take an oath that they will give a true verdict, according to the evidence upon the issues
to be tried. As soon as this oath has been administered by the judge, the assessors are
members of the court with the following provisos:

a. the decision or finding of the majority of the members of the court

upon any question of fact shall be the decision or finding of the
court, except when the presiding judge sits with only one
assessor, in which case the decision or finding of the judge shall,
in the case of a difference of opinion, be the decision or finding of
the court;
b. If the presiding judge is of the opinion that it would be in the
interests of the administration of justice that the assessor(s)
assisting him or her do not take part in any decision upon the
question whether evidence of any confession or other statement
made by an accused is admissible as evidence against him, the
judge alone shall decide upon such question, and he or she may
for this purpose sit alone.
c. The presiding judge alone shall decide upon any other question
of law or upon any question whether any matter constitutes a
question of law or a question of fact, and he or she may for this

purpose sit alone. In Magxwalisa, it was held that an application

at the close of the State’s case for the accused’s discharge in
terms of s 174 is one of law, and the decision is that of the judge
alone.
d. A judge presiding at a criminal trial in the High Court shall give
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the reasons for his or her decision where he or she decides any
question of law or whether any matter constitutes a question of
law or a question of fact. The judge shall also give the reasons for
the decision or finding of the court upon any question of fact or
the question referred to in para (b) above, whether he or she sits
with or without assessors. Where the judge sits with assessors
and there is a difference of opinion upon any question of fact, the
judge shall give the reasons for the minority decision.
As soon as an assessor receives information detrimental to the accused which has not
been proved in evidence, he must retire from the case. An assessor must show
absolute impartiality: His expressing an opinion about a particular witness before the
accused has been called to state his defence, will be grossly irregular.
The function of assessors is limited to the hearing of the trial, and since the trial is the
determination of the matters put in issue and ends with the verdict, the assessors have
no
part with the judge in the assessment or the imposition of an appropriate sentence,
although it is not irregular for the judge to seek the advice of the assessors in the
matter of sentence

2) Discuss the principle “audi alteram partem”

Section 35(3): Every accused person has the right to a fair trial, including the right to –

(i) adduce and challenge evidence.

(Suliman case) = No ruling of any importance; either on merit OR on procedural
points; should be made without giving both parties the opportunity of expressing their
views
(Bidi cas) = principle of audi alteram partem should always be observed.

3) Briefly discuss the general principles of sentencing that were enumerated by

the court in S v Rabie 1975 (4) SA 855 (A)? (3)

Radebe Case:
Punishment should fit the criminal & the crime,
Be fair to society, and
Be blended with measure of mercy according to the circumstances.
These 3 elements (the crime, the offender and the interest of society) are known as the
trade of Zinn
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All sentences should take into account main purpose of punishment:

a. Retribution
b. Deterrence
c. Prevention
d. Rehabilitation
The process which should ensure that every sentence fits the criminal as well as crime
and is fair on society is known as personalization of punishment.

4) Discuss the basic differences between the appeal and review procedure in
circumstances where constitutional issues are not exclusively involved.
(4)

Appeal Review
 With an Appeal you can challenge the  A review is not a statutory right of the
court’s decision by appealing it at a higher people and is at the discretion of the court,
court than the one that passed the verdict. which can reject the request.
 An appeal is a plea for the matter to be  A review is applied for at the same court
judged again.
 An appeal is requested to ask the higher where the original decision was made and is
court to change the decision of the lower a request to consider the legality of the
court. ruling.
 The decision of the lower court can stay  A review is based on procedural irregularity,
the same or the Higher Court can change impropriety, irrationality, and illegality.
it.

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MAY/ JUNE 2019 EXAMINATION – QUESTIONS AND ANSWERS – WAS THE

EXACT SAME PAPER AS OCT/ NOV 2019 EXAM PAPER EXCEPT FOR THE
MCQ IN SECTON A

SECTION A – QUESTION 1

This part consists of true or false questions. Each question must be answered with a
simple “True” of ‘False”. You are not required to elaborate on your answer

1. Generally, force must be used to effect arrest - FALSE

2. Escaping from unlawful custody constitutes a serious offence – FALSE

3. South Africa does not follow a system of compulsory prosecution- TRUE

4. A prosecutor may stop a prosecution without the permission of the DPP – FALSE

5. A charge sheet is a document which is used to bring an accused before court in both
lower and high courts – FALSE

6. Where the accused refuses to plead or to grant an intelligible plea, the court is entitled
to register the plea of ‘guilty’ – FALSE

7. A plea of lis pendens implies that there is another case pending against the accused in
another court – TRUE

8. Common Assault is a competent verdict on a charge of murder or attempted murder –

TRUE

9. The phrase ‘course of the criminal trial’ refers to the procedures which must be
followed during the pre-trial stage – FALSE

10.The principle of ‘equality of arms’ essentially implies that an unrepresented

accused must, during the proceedings enjoy better opportunities than a well
re-sourced prosecution – FALSE

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SECTION B

QUESTION 2

1) Whilst sleeping in his house with his family, X is awoken by noise in the kitchen.
Fearing his and his family’s lives, he retrieves his firearm from its safe, and
proceeds towards the direction of the noise. Upon arrival in the kitchen, he accosts X and Y, who are
in possession of a television set which he recognises as his own. Upon seeing X, they (Y and Z)
decide to run away, dropping the television set to the floor. As they run out of the house. X chases
after them. Realising that he cannot possibly catch them, he fires several shots in the direction of Y
and Z, in order to stop their flight. In the process, two of the shots fatally strike Z killing him. Y
manages to escape.

a) Discuss in the context of the above-mentioned facts, the factors which were set out by the
Constitutional Court in Ex Parte: Minister of Safety and Security: In
re: S v Walters 2002 (4) SA 613 (CC) at 643, regarding the use of force to in order to effect
arrest.
(10)
In Ex Parte: Minister of Safety and Security: In Re S v Walters and Another 2002 (4) SA 613 (CC) the
Constitutional Court declared section 49 (2) inconsistent with the Constitution and accordingly invalid.
The reason for this was that section 49 (2) constituted a disproportion between the rights infringed and
the desired outcome, since it authorised the use of deadly force for any schedule 1 offence committed.
The fundamental principles decided on by the Constitutional Court respectively are still valid and these
principles are reflected in the new amendments. The principles laid down by the Constitutional Court in
the Walters case are the following:

i. The purpose of arrest is to bring before court for trial persons suspected of having
committed offences.
ii. Arrest is not the only means of achieving this purpose, nor always the best.
iii. Arrest may never be used to punish a suspect.
iv. Where arrest is called for, force may be used only where it is necessary in order to
carry out the arrest.
v. Where force is necessary, only the least degree of force reasonably necessary to
carry out the arrest may be used.
vi. In deciding what degree of force is both reasonable and necessary, all the
circumstances must be taken into account, including the threat of violence the suspect
poses to the arrester or others, and the nature and circumstances of the offence the

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suspect is suspected of having committed; the force being proportional in all these
circumstances.
vii. Shooting a suspect solely in order to carry out an arrest is permitted in very limited
circumstances only.
viii. Ordinarily such shooting is not permitted unless the suspect poses a threat of violence
to the arrester or others or is suspected on reasonable grounds of having committed a
crime involving the infliction or threatened infliction of serious bodily harm and there
are no other reasonable means of carrying out the arrest, whether at that time or later.
ix. These limitations in no way detract from the rights of an arrester attempting to carry
out an arrest to kill a suspect in self-defence or in defence of any other person.
b) Do the actions of X in firing shots at Y and Z conform to the Constitutional Court
injunction? Briefly state the reasons why you agree or disagree with X’s Actions
(5)

From the given set of facts, the actions of Jake in firing shots at Paul and Zakes do not
conform to the Constitutional Court injunction. The Shooting a suspect solely in order to
carry out an arrest is permitted in very limited circumstances only, for instance when a
suspect is posing a threat of violence to the arrester or others. In this scenario, the suspects
were fleeing from the scene and thus not posing any threat. There was no immediate threat
to life or body harm and therefore the shooting was disproportionate to the offence. I
therefore disagree with Jakes actions.

2) Release on bail shall be refused, if such release is not in the interests of justice. Discuss
the grounds upon which release might be said to be not in the interests of justice.
(5)

Section 60(4) provides that the refusal to grant bail and the detention of an accused in custody shall be
in the interests of justice where one or more of the following grounds are established:
(f) where there is the likelihood that the accused, if released on bail, will endanger the safety of the
public or any particular person or will commit a Schedule 1 offence; or
(g) where there is the likelihood that the accused, if released on bail, will attempt to evade his or her
trial; or
(h) where there is the likelihood that the accused, if released on bail, will attempt to influence or
intimidate witnesses or to conceal or destroy evidence; or
(i) where there is the likelihood that the accused, if released on bail, will undermine or jeopardise
the objectives or the proper functioning of the criminal justice system, including the bail system;
or

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(j) where in exceptional circumstances there is the likelihood that the release of the accused will
disturb the public order or undermine the public peace or security

3) Discuss the powers of private persons to arrest another person (5)

Any private person may without warrant arrest any person

f) Who commits or attempts to commit in his presence or whom he reasonably suspects of having
committed an offence referred to in Schedule 1
g) Whom he reasonably believes to have committed an offence and to be escaping from and to be
freshly persued by a person whom such private person reasonably believes to have authority to arrest
that person for that offence
h) Whom he is by any law authorised to arrest without warrant in respect of any offence specified in that
law
i) Whom he sees engaged in an affray
j) The owner, lawful occupier or person in charge of property on or in respect of which any person is
found committing any offence, and any person authorised thereto by such owner, occupier or person
in charge, may without warrant arrest the person so found
The power conferred upon a private citizen to arrest without a warrant should be exercised sparingly and with
great circumspection. The courts generally put much weight on the right to freedom. Thus, the Morapedi
case illustrate that only when the provisions of law are complied with can a lawful arrest be effected.
QUESTION 3

1) B takes a stroll on the street near his house. A accosts B and assaults him (B) and relieves B
of his (B) wallet and cellphone. Upon arrest A is charged with robbery. Name the verdicts that
might be considered by the court as competent in light of the facts above.
(5)

Robbery comprises the elements of assault and theft. If the state charges X with robbery but cannot prove
that X assaulted Y in order to take his wallet, robbery has not been proven and X cannot be found guilty of
robbery. If, however, the state proves that X assaulted the complainant, Y, and then took his wallet without
his consent, the commission of the offences “assault” (in any form) and “theft” has been proven – section 260.

2) Name/List any (sentences) introduced by the Child Justice Act 75 of 2008 (5)
a. Imprisonment (not for children < 14years old)
b. Compulsory residence in a care centre
c. Correctional Supervision
d. Fines (only after proper investigation into means of parent/guardian/offender to pay the fine is
conducted)
e. Restorative Justice

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f. Community-Base sentence

3) Z is charged with driving his vehicle recklessly. After Z has pleaded at the trial, it transpires
that the prosecutor neglected to mention in the charge sheet that the incident took place on a
public road. Discuss how, in terms of the Criminal Procedure Act 51 of 1977 this oversight may
be rectified? (10)

As regards section 86, the charge sheet is amended in order to insert an essential allegation.
Section 86(1): makes provision for amendment of an indictment/charge-sheet in the following
situations:
5. Where it is defective for want of an essential averment
6. Where there is a variance between the averment in the charge and the evidence offered in proof
of such averment
7. Where words or particulars have been omitted, unnecessarily inserted
8. Where any other error is made

Such amendment must not prejudice the accused in his defence, and the replacement of the charge as a
whole (which is not allowed) is not at issue here. There will not be prejudice to the accused if there is but a
slight variance or where it is clear that the defence would have remained exactly the same had the
State originally presented the charge in the amended form.

In discussing section 88 (rectifying a defect in a charge sheet by leading evidence), namely that where the
defect is brought to the attention of the court before judgment is passed, the corrective effect of the evidence
will be cancelled. The following requirements:

• The offence must at least have been mentioned in the charge.

• The formulation must be such that the charge sheet in fact embodies the offence in
fact.
• Proper evidence must be led.
• Section 88 does not authorise the replacement of one offence with another.

Also, according to section 123, the DPP is authorised to rectify a fatal defect in the case for the state by
converting a summary trial into a preparatory examination (Bham v Lutge 1949 (3) SA 392 (T)).

4) Briefly discuss the objectives of sentencing child offenders in terms of the Child Justice Act
75 of 2008 (5)

f) encourage the child to understand the implications of and be accountable for the
harm caused;
g) promote an individualised response which strikes a balance between the
circumstances of the child, the nature of the offence and the interests of
society;
h) promote the reintegration of the child into the family and community;
i) ensure that any necessary supervision, guidance, treatment or services which form
part of the sentence assist the child in the process of reintegration; and

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j) use imprisonment only as a measure of last resort and only for the shortest
appropriate period of time.

QUESTION 4

X stands trial in the high court on a charge of murder. She is tried by a judge who is assisted by
two assessors. At the close of the case, it becomes clear that the members of the court (the
presiding officer and the assessors) do not agree on the finding. Discuss the legal principles
which find application in this regards (10)

According to section 145(3) and (4) before the trial commences, the assessors must take an oath that
they will give a true verdict, according to the evidence upon the issues to be tried. As soon as this oath
has been administered by the judge, the assessors are members of the court with the following provisos:

a. the decision or finding of the majority of the members of the court upon any question of fact
shall be the decision or finding of the court, except when the presiding judge sits with only
one assessor, in which case the decision or finding of the judge shall, in the case of a
difference of opinion, be the decision or finding of the court;
b. If the presiding judge is of the opinion that it would be in the interests of the administration
of justice that the assessor(s) assisting him or her do not take part in any decision upon
the question whether evidence of any confession or other statement made by an accused
is admissible as evidence against him, the judge alone shall decide upon such question,
and he or she may for this purpose sit alone.
c. The presiding judge alone shall decide upon any other question of law or upon any
question whether any matter constitutes a question of law or a question of fact, and he or

she may for this purpose sit alone. In Magxwalisa, it was held that an application at the
close of the State’s case for the accused’s discharge in terms of s 174 is one of law, and
the decision is that of the judge alone.
d. A judge presiding at a criminal trial in the High Court shall give the reasons for his or her
decision where he or she decides any question of law or whether any matter constitutes a
question of law or a question of fact. The judge shall also give the reasons for the decision

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or finding of the court upon any question of fact or the question referred to in para (b)
above, whether he or she sits with or without assessors. Where the judge sits with
assessors and there is a difference of opinion upon any question of fact, the judge shall
give the reasons for the minority decision.
As soon as an assessor receives information detrimental to the accused which has not been proved in
evidence, he must retire from the case. An assessor must show absolute impartiality: His expressing an
opinion about a particular witness before the accused has been called to state his defence, will be
grossly irregular.
The function of assessors is limited to the hearing of the trial, and since the trial is the determination of
the matters put in issue and ends with the verdict, the assessors have no
part with the judge in the assessment or the imposition of an appropriate sentence, although it is not
irregular for the judge to seek the advice of the assessors in the matter of sentence

2) Discuss the principle “audi alteram partem”

Section 35(3): Every accused person has the right to a fair trial, including the right to –

(i) adduce and challenge evidence.

(Suliman case) = No ruling of any importance; either on merit OR on procedural points; should be made
without giving both parties the opportunity of expressing their views
(Bidi cas) = principle of audi alteram partem should always be observed.

3) Briefly discuss the general principles of sentencing that were enumerated by the court in S v
Rabie 1975 (4) SA 855 (A)? (3)

Radebe Case:
Punishment should fit the criminal & the crime,
Be fair to society, and
Be blended with measure of mercy according to the circumstances.
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All sentences should take into account main purpose of punishment:

(a) Retribution
(b) Deterrence
(c) Prevention
(d) Rehabilitation

The process which should ensure that every sentence fits the criminal as well as crime and is fair on
society is known as personalization of punishment.

4) Discuss the basic differences between the appeal and review procedure in circumstances
where constitutional issues are not exclusively involved. (4)

Appeal Review
 With an Appeal you can challenge the  A review is not a statutory right of the
court’s decision by appealing it at a higher people and is at the discretion of the court,
court than the one that passed the verdict. which can reject the request.
 An appeal is a plea for the matter to be  A review is applied for at the same court
judged again.
 An appeal is requested to ask the higher
where the original decision was made and is
court to change the decision of the lower a request to consider the legality of the
court. ruling.
 The decision of the lower court can stay  A review is based on procedural irregularity,
the same or the Higher Court can change impropriety, irrationality, and illegality.
it.

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OCT/NOV 2018 EXAMINATION – QUESTIONS AND ANSWERS

SECTION A – QUESTION 1

This part consists of true or false questions. Each question must be answered with
simple “True” of ‘False”. You are not required to elaborate on your answer

1. A defect in the charge sheet or indictment may be cured by evidence - TRUE

2. Statutory plea bargaining may be concluded by way of oral agreement

between the parties - FALSE

3. South Africa does not follow a system of compulsory prosecution – TRUE

4. With the plea of autrefois acquit the accused implies to the court that he o
she was previously convicted on the offence with which he or she is bein
currently charged- False

5. A charge sheet is a document which is used to bring an accused before

court in both lower and high courts – False

6. The review process essentially challenges the decision of the court on the
basis of the merits and the facts – False

7. A convicted accused may appeal his or her conviction by a district court to

a regional court in the same division – False

8. Common assault is a competent verdict on a charge of murder or

attempted murder. – True

9. A prosecutor may not stop a prosecution without the express permission o

the DPP – True

10. A district court has the jurisdiction to try all offences except high
treason – False

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SECTION B

QUESTION 2

Phil Philanderer is charged with the murder of his wife, Faithful. The alleged offence took place i
their marital home, where the two were alone at the time. In his submissions to the Director o
Public Prosecutions (DPP), Sheepish Shaun, Phil contends that he was, in fact, the victim in th
whole affair, and that he killed Faithful in self-defence. After the perusal of all the evidence at th
disposal of the prosecution, the DPP decides “after a thorough and intense analysis of th
merits”, that there is, indeed, a “prima facie” case for the accused to answer. However, the cas
is, in his view “not winnable, and should, therefore, not be pursued any further, in the interests o
justice”. However, the deceased’s brother, Belligerent Ben, is unhappy with the decision of th
DPP. He approaches an attorney, Clever Trevor, for advice on whether there is any recourse t
the decision of the DPP. Clever Trevor advices that a private prosecution may be instituted b
Belligerent Ben. Ben approaches the DPP with the intention to institute a private prosecution.

(a) The DPP informs Ben that he (Belligerent Ben) has no locus standi in the matter, as he ha
no “substantial interest” in the case. Discuss the classes of persons who qualify for locu
standi on a private prosecution under certificate nolle prosequi. (4)
1. Private person who prove substantial interest in outcome of issue arising out of an injury he
personally suffered in consequence to the offense.
2. Husband, if offense committed in respect of wife.
3. Wife, child, next of kin of deceased person.
4. Legal guardian, curator of minor or lunatic if offense committed against his ward.

(b) Based on your answer in (a), would you say that Belligerent Ben, indeed, qualifies to presid
over a private prosecution under certificate nolle prosequi? (1)
Yes,
3. Wife, child, next of kin of deceased person.

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(c) Discuss the essential aspects of the certificate nolle prosequi. (8)
In the event that the prosecutor refuses to prosecute an individual may prosecute privately on the
basis of a certificate nolle presequi.
Private Prosecution on the basis of a certificate nolle presequi:
• Locus standi of PP
Private person who prove substantial interest in outcome of issue arising out of an injury he
personally suffered in consequence to the offense.
Husband, if offense committed in respect of wife.
Wife, child, next of kin of deceased person.
Legal guardian, curator of minor or lunatic if offense committed against his ward.
• The certificate nolle presequi
Lapses in 3 months
Signed by DPP
Declares that DPP: examined statement on which charge is based & declines to prosecute
the instance of the state.
• Security by PP
Deposit of R2 500.00 with Magistrates Court.
• Failure of PP to appear
Charged dismissed – accused may not be Privately charged again but State may Prosecute
If PP prevented beyond his control – deposit forfeited, and case moved to later date.
• Cost of Successful PP
Paid by PP, court may rule for convicted to pay.
• Cost of Unsuccessful PP
Court my order PP to pay whole/part of accused cost/expenses connected to prosecution.
• Intervention by State in PP
DPP my apply for proceedings to be stopped to prosecute in the instance of the State.

(d) To avoid frivolous and unnecessary private prosecutions, the legislature places
particular burden on the potential private prosecutor, to indicate his or her willingness t
follow through with the prosecution without unfairly prejudicing the accused. Brief
mention what this “burden” entails, and in what manner the prosecutor expected t
discharge it. (2)
Security by Private Prosecutor
Deposit of R2500.00 with Magistrates Court.

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QUESTION 2 – (ALTERNATIVE TO QESTIONS 2)

X is arrested on a warrant of arrest in Pretoria. Before the arrest, he was being sought
in connection with the following crimes, namely:
• rape, robbery and murder – allegedly committed in Emalahleni;
• housebreaking with intent to steal and theft – allegedly committed in Polokwane,
Limpopo; and
• theft of a motor vehicle – allegedly committed in Pretoria, Gauteng.

Discuss the determination of jurisdiction in respect of offences which were

committed on South African territory, in circumstances where more than one
jurisdictional area potentially enjoys jurisdiction (NB: Your answer must not include
a discussion of the four (4) km rule). (15)

Section 90 of the Magistrates’ Court Act:

(1.) Discusses 4km rule so exclude! (MUST HAPPEN IN

REPUBLIC) When a person is charged with any offence
–
(a) committed within the distance of 4km beyond the boundary of the district, or regional
division; or
(b) committed in or on a vessel or vehicle on a voyage or journey, any part whereof
was performed within a distance of 4km from the boundary of the district or
regional division; or
(c) committed on board a vessel on a journey upon a river within South Africa and such
journey or part thereof was performed in the district or regional division or within
4km thereof; or
(d) committed on board a vessel on a voyage within the territorial waters of South
Africa and the said territorial waters adjoin the district or regional division; or
(e) begun or completed within the district or regional division,
such person may be tried within the district or regional division, as if he had been
charged with an offence committed within the district or regional division.
(2) Where it is uncertain in which of several jurisdictions an offence was committed, it may be
tried in any of such jurisdictions.
(3) A district or regional court may try an offence if the act, omission or even an element of the
offence was committed in that district or regional division.
(4) Any person charged with theft or receiving property knowing it to be stolen, etc, may be
tried in any district or regional division, where he had part or all of the property in his
possession.
(5) A person charged with kidnapping, child-stealing or abduction may be tried in any district
or regional division through or in which he conveyed, concealed or detained the victim.

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(6) A statutory provision may grant a Magistrates’ Court jurisdiction in respect of an offence
committed beyond the local limits of the district or regional division.
(7) Where an accused is alleged to have committed several offences in different districts falling
within the Director of Public Prosecution’s area, he may order in writing that all the matters
be heard in one Magistrates’ Court in his area.
(8) If there are a number of accused, the Director of Public Prosecutions may order in
writing that an accused be tried in a district or regional division in his area, to avoid
excessive inconvenience or disturbance of a particular area.
(9) In terms of Section 110(1) of the CPA, if a person is, as far as territorial jurisdiction is
concerned, wrongly charged before a particular court, and fails to object timeously, such
court will acquire jurisdiction.
(10) In terms of Section 18 of the Aviation Act, if an offence is committed on a South African
plane, the offence is deemed for purposes of criminal jurisdiction to have been committed in
any place the accused happens to be.
(11) In terms of Section 111 of the CPA, the National Director of Public Prosecutions has the
power to move a trial from one Director of Public Prosecutions’ area to another.

QUESTION 3

(1) X and Y, two policemen on duty are investigating a murder charge whereupon their
investigations point to the fact that B, a possible witness who has not yet been
interviewed by the police is the last person to be seen in the presence of the accused
and the deceased. Upon the arrival of X and Y at B’s house he intimates to them that
he ‘saw what he saw’ but will not repeat it to anyone else, least of all the police.
Finally, he dares them to ‘do their worst’ as he is not afraid of them and their so-
called ‘General’. Bemused and frustrated, X and Y leave B’s house not knowing what
to do next.
Advise them on any legal course (if there is indeed any) which may be pursued
hereon. (10)
• Section 205 of CPA:
The witness may be summonsed under the provisions of section 205, which are
available to the prosecutor or the DPP to compel a witness who does not want to make a
witness statement to come to court. In this way, a witness will be summonsed to appear
before a judge, magistrate or regional magistrate to testify before him. If the witness is
willing to make a statement, he is under no further obligation to appear before the

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judicial officer. Note that if the witness refuses to testify or to be sworn in, either in a
court or on a warning, or before the judicial officer in terms of section 205, then the
witness may be dealt with as provided for in section 189. At the same time, it is assumed
that a witness
will sometimes have a valid excuse for not wanting to testify, for example when answering a
particular question will result in self-incrimination. Provision has therefore
been made to enable such witnesses to rely on the above excuse to justify their refusal
to answer particular questions – see section 203

• Section 189 of CPA:

(1)If any person present at criminal proceedings is required to give evidence at
such proceedings and refuses to be sworn or to make an affirmation as a witness, or,
having been sworn or having made an affirmation as a witness, refuses to answer
any question put to him or refuses or fails to produce any book, paper or document
required to be produced by him, the court may in a summary manner enquire into
such refusal or failure and, unless the person so refusing or failing has a just excuse
for his refusal or failure, sentence him to imprisonment for a period not exceeding two
years or, where the criminal proceedings in question relate to an offence referred to in
Part III of Schedule 2, to imprisonment for a period not exceeding five years

• Section 203 of CPA:

No witness in criminal proceedings shall, except as provided by this Act or any other
law, be compelled to answer any question which he would not on the thirtieth day of
May, 1961, have been compelled to answer by reason that the answer may expose
him to a criminal charge.

(2) Discuss the powers of interrogation in respect of suspects and accused persons.
(4)

The need for special powers arises only when a person refuses to grant police access to
someone they wish to interrogate, refuses to respond to police questioning. Suspects and
accused persons have the right to remain silent (Section 35), but not the right not to be
questioned. No adverse inference may be drawn from his silence.

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(3) When a peace officer comes into contact with a certain category of person, he or she
is given the power, by law, to seek the name and address of such persons. Discuss
the categories of such persons, and the consequences which may ensue from the
refusal to provide such information. (6)

Section 41(1) of CPA: ‘a peace officer is given the power to call upon -
(a) any person whom he has power to arrest
(b) any person reasonably suspected of having committed any offence or of having
attempted to commit any offence (not only Sch 1 offences)
(c) any person who may, in his opinion, be able to give evidence in regard to the
commission or suspected commission of any offense
To furnish his full name and address.
Refusal by a person to furnish his name and address as indicated in Section 41(1) and the
furnishing of an incorrect or false address constitutes an offence and is punishable be a
fine or imprisonment without the option of a fine for a period of 3 months – Section 41(2).

QUESTION 4

While performing his duties, Inspector X stumbles upon information from an informant that Y
is in possession of a stolen vehicle. X acts on the information and immediately proceeds to
Y’s house. Upon his arrival, he notices the vehicle described by the informant parked under
the carport in the yard. X informs Y about the purpose of his visit, namely, to investigate the
presence of an allegedly stolen vehicle on Y’s premises. He thereupon requests Y’s
permission to inspect the vehicle. Y accedes to the request. X opens the car bonnet of the
said vehicle and proceeds to inspect the engine. He notices, while looking over the engine,
that the engine number has been filed off. He thereupon decides to impound the vehicle for
further investigation.
Answer the following questions with specific reference to Ngqukumba v Minister of Safety
and Security 2014 (2) SACR 325 (CC) (hereinafter Ngqukumba) and the relevant
Constitutional and legislative provisions:
Discuss
(a) the relevant legislative and Constitutional provisions as they relate to X in the
exercise of his duties regarding the actions he is undertaking – in other words, the
provisions that regulate the exercise of his powers as a police officer (5)
Section 35(5) of Constitution:

Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the
admission of that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice.

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CPA:
- Section 20: Articles may be seized if they are “on reasonable grounds believed to be”
articles of a certain nature.
- Section 21(a): Issuing of search warrants authorised where if it appears from information
on oath that there are “reasonable grounds for believing” that certain
articles will be found at a certain place.
- Section 22(1)(b): A police officer is authorised to conduct a search if he “on reasonable
grounds believes” that certain circumstances exist.
- Section 24: A person in charge of or occupying premises may conduct a search and
seize articles provided he “reasonably suspects” certain circumstances to
exist.
A person can therefore be said to have “reasonable grounds” if he actually suspects it, his belief is
based on facts from which he has drawn a conclusion and if any reasonable person would also
have drawn the same conclusion

b) In view of the facts above, the relevant and applicable provisions of the Criminal
Procedure Act (CPA) 51 of 1977 regarding the search and subsequent impounding of the
vehicle by X. (10)

Section 20 of CPA: (article)

The State may, in accordance with the provisions of this Chapter, seize anything (in this
Chapter referred to as an article) -
(a) which is concerned in or is on reasonable grounds believed to be concerned in the
commission or suspected commission of an offence, whether within the Republic or
elsewhere;
(b) which may afford evidence of the commission or suspected commission of an offence,
whether within the Republic or elsewhere; or
(c) which is intended to be used or is on reasonable grounds believed to be intended to be
used in the commission of an offence.

Section 22 of CPA: (search & seizure)

(a)person concerned consents to search & seizure
(b)he on reasonable grounds believes
(i) search warrant will be issued to him under paragraph (a) of S21(1) if he applies for
such warrant
(ii) delay in obtaining such warrant would defeat the object thereof
c) Name the remedy that was the subject of the applicant’s action in Ngqukumba. (1)
Spoliation Order – restore the physical control of property taken away unlawfully.
d) Briefly discuss the ambit and content of a preservation order. (4)
A Preservation Order is an order prohibiting any person from dealing with any property
(used in an offence) in any manner, subject to the exceptions and conditions which are
specified in the order.

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QUESTION 4 – ALTERNATIVE

(1) Discuss the fundamental guiding principles which are applicable to the drafting of
charge sheets and indictments (5)
Golden Rule: for drafting a charge sheet is that charge sheet/indictment must be of such a
nature that it:
i. Informs the accused of the charge against him;
ii. In a clear and unambiguous language.
(Pillay case)
Section 35(3): Every accused person has the right to a fair trial, including the right to –

(a) be informed of the charge with sufficient detail to answer it.

(2) Distinguish fully between a charge sheet and an indictment. (10)
Charge Sheet – Lower Courts

Summary Trial commenced by lodging charge sheet with clerk of court – unless accused has been
summoned to appear.
Not accompanied by statement of facts, may be accompanied by preamble.
Particulars furnished are:
i. Name of offence for which accused is indicted
ii. All elements of crime
iii. Date on which & place where offence was allegedly committed
iv. Person against whom offence was allegedly committed
Indictment – High Courts

drawn up in terms of the DPP

• Formal Aspects:
Charges against the accused
Name, address, sex, nationality & age of accused
Summary of substantial facts of the case
Accompanies by list of names & addresses of state witnesses
• Procedural Aspects:
o Served on Accused in accordance with rules of court
o Indictment + Notice of Trail must be served on accused at least 10 days
before trail (unless accused agrees to less).
o Served by handing it to accused in same manner as summons, or by
Magistrate who commits him to superior court for trial.
o
(3) Discuss the overall effect of including unnecessary averments in a charge sheet. (5)

General Rule: surplus of superfluous words in a charge sheet – which do not embarrass the
accused in his defence – will be disregarded.

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Section 86(1):
additions of superfluous words in a charge sheet will are amendable if it does not prejudice
the accused to do so.
If amendment not made, validity of proceedings will not be affected UNLESS the amendment has
been refused by the court.

QUESTION 5

1) Name the main requirements of the test for the presence of judicial bias. (4)

The requirements of the test for the perception of judicial bias are:

1. There must be a suspicion that the judicial officer might be, not would be, biased.
2. The suspicion must be that of a reasonable person in the position of the accused.
3. The suspicion must be based on reasonable grounds.
4. The suspicion is one which the reasonable person referred to would, not might, have held.

2) State the period when an application for recusal can be brought. (2)

Rule of Law: no person who has an interest in or harbours any prejudice in respect of the matter to
be tried should adjudicate on such matter.

a. At the Commencement of the Trial

To avoid unnecessary complications:
i. Discontinuation of a partly heard trial
ii. Necessity of starting it de novo
b. In the Course of the Trial
Application must be made in respectful and courteous terms
Not be wilfully insulting (Silber case)

3) Demonstrate your understanding of the concepts ‘joinder’ of accused and ‘separation’

of trial. (4)

Joinder of accused Separation of trial

Section 157(1) of CPA Section 157(2) of CPA
• Accused may be joined by any • Were accused(s) charged jointly,
other accused may be joined by court may upon application of
any other accused with regards to prosecutor or of any of the accused
the same offence before any direct that any one or more of the
evidence has been led in respect accused’s trials shall be held
of that charge in question separately from the other

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4) Mention five (5) forms of punishment which may be imposed on a convicted accused.
(5)
a. imprisonment, including imprisonment for life;
b. periodical imprisonment;
c. declaration as a habitual criminal;
d. committal to a treatment centre;
e. a fine;
f. correctional supervision; and
g. Imprisonment from which the person may be placed under correctional supervision – s
276 of the Criminal Procedure Act.

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MAY/JUNE 2018 EXAMINATION – QUESTIONS AND ANSWERS

SECTION A – QUESTION 1
This part consists of true or false questions. Each question must be answered
with a simple “True” of ‘False”. You are not required to elaborate on your
answer

1. A district court has the jurisdiction to try serious offences against the state -
TRUE

2. A regional court may try offences except treason, murder, rape and compelled
rape - FALSE

3. South Africa follows a system of compulsory prosecution – FALSE

4. A prosecutor may withdraw a case without the permission of the DPP- TRUE

5. An indictment is a document which is used to bring an accused before court in

both the lower and higher courts – FALSE

6. The police are empowered in the case of certain serious offences to arrest
persons and detain them for the purposes of interrogation – TRUE

7. The function of further particulars is to define issues and not to enlarge them –
TRUE

8. As a rule, the court is bound to the agreement between the state and the
defence in the instance of traditional please bargaining – FALSE

9. The phrase “course of the criminal trial” refers to the procedures which must be
followed during the pre-trial stage – FALSE

10. The principle of ‘equality of arms’ essentially implies that an

unrepresented accused must, during the proceedings enjoy better opportunities
than a well-resourced prosecution – FALSE

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SECTION B - QUESTION 2

In 1988 Ed Crook and two accomplices, Adam Swindler and Petty Thief allegedly
committed the crimes of theft and corruption in the Republic of Zamunda where they
had visited as tourists.
Ed is subsequently arrested in Republic of South Africa in 2008. Ed is 72 years old at the
time of his arrest. The police sent a large contingent to Ed’s house, led by Captain Trigger
Happy.

(1) Based on the facts advanced above, do the courts of the Republic have the
jurisdiction to entertain the matter?
Generally, the courts of the Republic have the jurisdiction to adjudicate only in respect of
offences which are committed with its borders. However, exceptions exist in respect of
which local courts may preside over cases where the offences were allegedly committed
outside the borders of the Republic. Jurisdiction in this regard is conferred, inter alia, on the
basis of the type of offence which was allegedly committed; and on the location (e.g. on
board a ship or aircraft) where the offence took place. In the case in point jurisdiction is
determined by the offences, namely theft and corruption.

(2) Discuss the jurisdiction of regional and district courts in respect of offences. (4)
A district court has jurisdiction to try all crimes except treason, murder and rape. A regional court
may try all crimes except treason.

(3) Ed wants to submit representations to the DPP to “quash” the proceedings against
him. Discuss the circumstances under which prosecution against an accused may
be withdrawn or stopped. (8)

Elements Withd Stopped

rawn
Relevant Section 6(a) 6(b) CPA
CPA
Permission of No. Yes.
DPP:
Verdict of No. Yes.
Acquittal:
Reinstitution of May be prosecuted Successfully rely on plea of
Proceedings: again if new evidence autrefois acquit if prosecuted
is discovered again for same offence.
When: Before accused has After plea, before conviction
pleaded.

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(4) Discuss the circumstances under which a nolle prosequi may be granted by the
prosecutor, Steely Persecutor, in the instance where he decides not to prosecute Ed
and his co- accused. (8)
Private Prosecutor must request a certificate nolle prosequi from DPP.

circumstances under which a nolle prosequi may be

granted
Nature & Seriousness of Effect of crime on victim, manner committed,
offence motivation,
relationship between accused and victim. Effect
on public peace and security.
Interests of Victim & Necessity of maintaining public confidence in
Broader Community criminal justice system. Would prosecution
be deemed
counterproductive?
Circumstances of Offender Previous convictions, personal circumstances,
mitigating &
aggravating factors.
Relevance of these factors and weight attached to them will depend on the
circumstances of each case.

5) After the arrest, Warrant Officer Truth Seeker tries to interrogate Ed, who bluntly
refuses to answer any questions. Briefly discuss the rights of Truth Seeker and Ed in
this regard. (2)
Section 35(2) of Constitution:

Every detained person has right to remain silent & to not make any confessions.
(6) Captain Trigger Happy is excited about making the arrest of an “international
criminal” and proceeds to order the removal of Ed’s household goods and
furniture as “part of the loot”
(a) Discuss, with reference to the CPA, articles which may be seized from as
suspect and the exceptions thereto. (8)
Section 20 of CPA: an article

(a) which is concerned in or is on reasonable grounds believed to be concerned in

the commission or suspected commission of an offence, whether within the
Republic or elsewhere
(b) which may afford evidence of the commission or suspected commission of an
offence, whether within the Republic or elsewhere; or
(c) which is intended to be used or is on reasonable grounds believed to be intended
to be used in the commission of an offence.
EXCEPTION: documents which are privileged & of which the holder of privilege
has not yet surrendered his privilege.
(b) In light of your submission in (a) do the articles seized by Captain Trigger
Happy qualify for seizure under the CPA? (2)

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No, as household goods do not constitute any form of article mentioned in Section
20 of the CPA.
(7) After failing to extradite Ed, the authorities in Zamunda offer to assist their
South African counterparts in “any way possible”, in bringing the accused to
justice, including, flying all the state witnesses over to South Africa, at
“Zamunda’s own expense”. In the meantime, the DPP decides to charge Ed in
the Pretoria Regional Court.
(a) Discuss the formal structure of the document which is prepared by the
prosecution for court proceedings in respect of the lower court. (5)
Charge Sheet:

Particulars furnished are:

i. Name of offence for which accused is indicted
ii. All elements of crime
iii. Date on which & place where offence was allegedly committed
iv. Person against whom offence was allegedly committed

(b) Discuss the formal and procedural aspects of the document which is
prepared by the prosecution for court proceedings in respect of the high
court. (8)
Indictment: drawn up in terms of the DPP
• Formal Aspects
Charges against the accused
Name, address, sex, nationality & age of accused
Summary of substantial facts of the case

• Procedural Aspects:
•
o Served on Accused in accordance with rules of court
o Indictment + Notice of Trail must be served on accused at least 10 days
before trail (unless accused agrees to less).
o Served by handing it to accused in same manner as summons, or by
Magistrate who commits him to superior court for trial.

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Mock examination paper

The following is an example of the structure of an examination paper in this
module. It also includes a memorandum to indicate how we prefer you to answer
examination questions. Hence, we suggest that you survey its content to
familiarise yourself with the expected format and response required in this module.
SECTION A
State whether the following statements are TRUE or FALSE. You need not elaborate on the
statement.
(1) The Constitutional Court has final jurisdiction in respect of all matters. (1)
(2) There are exceptions to the rule that South African courts may only exercise jurisdiction in
respect of offences which occurred on South African territory only. (1)
(3) South Africa follows a system of compulsory prosecution. (1)
(4) A prosecutor may stop a prosecution without the permission of the DPP. (1)
(5) An indictment is a document which is used to bring an accused before court in both lower
and high courts. (1)
(6) The taking of fingerprints essentially violates the accused’s right to remain silent. (1)
(7) The function of further particulars is to define issues and not to enlarge them. (1)
(8) One of the salient features of traditional plea bargaining is where an accused pleads guilty in
exchange for charges being withdrawn against a co-accused. (1)
(9) The phrase ‘course of the criminal trial’ refers to the procedures which must be followed
during the pre-trial stage. (1)
(10) The principle of ‘equality of arms’ essentially implies that an unrepresented accused must,
during the proceedings enjoy better opportunities than a well-resourced prosecution. (1)

MEMORANDUM SECTION A
(1) True (See Chapter 2, p. 33)
(2) True (See Chapter 2, p. 42)
(3) False (See Chapter 3, p. 73)
(4) False (See Chapter 3, p. 76)
(5) False (See Chapter 7, p. 137)
(6) False (See Chapter 8, p. 169)
(7) True (See Chapter 12, p. 245)
(8) True (See Chapter 14, p. 282)
(9) False (See Chapter 17, p. 331)
(10) False (See Chapter 17, p. 335)

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SECTION B
Answer the questions which follow in respect of the set of facts provided. You are
required to elaborate on all your answers. The length of your answers must be guided by
the marks allocated.
In 1988 Ed Crook and two accomplices, Adam Swindler and Petty Thief allegedly
committed the crimes of theft and corruption in the Republic of Zamunda where they had
visited as tourists.
Ed is subsequently arrested in Republic of South Africa in 2008. Ed is 72 years old at the
time of his arrest. The police sent a large contingent to Ed’s house, led by Captain
Trigger Happy.
(1) Based on the facts advanced above, do the courts of the Republic have the jurisdiction to
entertain the matter? (5)
Generally, the courts of the Republic have the jurisdiction to adjudicate only in respect of offences
which are committed with its borders. However, exceptions exist in respect of which local courts
may preside over cases where the offences were allegedly committed outside the borders of the
Republic. Jurisdiction in this regard is conferred, inter alia, on the basis of the type of offence
which was allegedly committed; and on the location (e.g. on board a ship or aircraft) where the
offence took place. In the case in point jurisdiction is determined by the offences, namely theft and
corruption.
(2) Discuss the jurisdiction of regional and district courts in respect of offences. (2)
A district court has jurisdiction to try all crimes except treason, murder and rape. A regional court
may try all crimes except treason.
(3) The investigating officer, Inspector Nosey Kekana has, in the meantime, received
anonymous information to the effect that some Ed is hiding at this girlfriend Sue Truheart’s
house. He wants to go to this his house and interrogate him.
Discuss, in your own words, the powers of police officers to enter premises and to interrogate
persons. (6)
(1) In terms of s 26 a police official may, in the investigation of an offence or alleged offence
where he reasonably suspects that a person who may furnish information with regard to any
such offence is on any premises, enter such premises without a warrant for the purpose of
interrogating such person and obtaining a statement from him. There is, however, the proviso
that a police official may not enter any private dwelling without the consent of the occupier
thereof.
However, this once again leaves open the possibility that the occupier of the dwelling may
refuse the police entry to the premises which may also hamper the police investigation. In terms
of s 27(1), a police official who may lawfully enter any premises under s 26 may use such forces
as may be reasonably necessary to overcome any resistance against such entry, including the
breaking of any door or window of such premises. In terms of a proviso to the subsection, such
a police official shall first audibly demand admission to the premises and state the purposes for
which he seeks to enter such premises.

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(4) Discuss the competent sentences which Ed is likely to receive if he were to be convicted by
the high court in respect of the charges in question. (7)

The divisions of the high court, namely, the Supreme Court of Appeal, provincial and local
divisions may impose the following sentences:
• imprisonment, including imprisonment for life;
• periodical imprisonment;
• declaration as a habitual criminal;
• committal to a treatment centre;
• a fine;
• correctional supervision; and
Imprisonment from which the person may be placed under correctional supervision – s 276 of the
Criminal Procedure Act.

(5) Ed is yet to plead to the charges. However, he reckons that the charges against him are, in fact,
“non-existent” and somewhat “politically motivated” due to his confirmed status as an apartheid
spy.
(a) Discuss Steely Persecutor’s discretion to prosecute in this regard. (10)
In principle, South Africa does not follow a system of compulsory prosecution. The prosecutor has a
duty to prosecute if there is a prima facie case and if there is no compelling reason for a refusal to
prosecute. In this context “prima facie case” implies the following: allegations, as supported by
statements and real and documentary evidence available to the prosecution are of such a nature
that if proved in a court of law by the prosecution on the basis of admissible evidence, the court
should convict. Sometimes it is asked: Are there reasonable prospects of success with a
prosecution? The prosecution, it has been held, does not have to ascertain whether there is a
defence, but whether there is a reasonable and probable cause for prosecution – see generally
Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 137 and Lubaxa 2001 (2) SACR
703 (SCA) at 707i. The prosecution must at the trial be able to furnish proof beyond a reasonable
doubt. Occasionally there might be good grounds for refusing to prosecute despite the fact that a
prima facie case exists. Such grounds may be the triviality of the offence; the advanced age or very
young age of an accused; where a plea bargain was struck between the prosecution and the
defence; the antiquated personal circumstances of an accused, for example, a father who has
through his negligent driving caused the death of his young child. There is a rule of practice in terms
of which an accused, or his legal representative acting upon his instructions, may take written
representations to a DPP or the local public prosecutor to decline to prosecute.

(b) Taking into account the facts mentioned in (5), discuss the powers which Steely Persecutor
may exercise in respect the “dropping of charges” as requested by Ed, and the attendant
consequences of his actions. (5)

The prosecuting authority has the authority to withdraw a charge before the accused has pleaded
to such a charge – s 6(a) of CPA. The accused is in these circumstances not entitled to a verdict
of acquittal. He may be prosecuted again on the same or related charges, for example, where new
evidence is found. A prosecutor may withdraw a charge without the consent of his DPP. The

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reason for this is that a DPP, if dissatisfied with the prosecutor’s withdrawal of the charge, may
charge the accused afresh. Before an accused pleads, the prosecution can also withdraw a
summons and issue another – Wolman v Springs Town Council 1941 TPD 104.

(6) Trigger Happy is quite eager to obtain fingerprint samples from Ed, whom he considers an
“internasional kriminal”. Ever, the legal fundi, Ed refuses to have his fingerprints taken because
he regards such action as a violation of his “constitutional rights”.
Discuss the veracity of Ed’s statement and whether Trigger has any options at his disposal. (4)

The obtaining of data through finger, palm and foot-printing, conducting identity parades,
ascertaining of bodily features, taking of blood samples and taking of photographs is regulated by
s 37 of the CPA. The identification of suspects through ascertainment of bodily features must,
however, be viewed as a legitimate limitation of rights when properly and lawfully conducted in
the pursuance of the interest of justice. In Huma 1996 (1) SA 232 (W) it was held that the taking
of fingerprints does not violate the accused’s right to remain silent or his right to have his dignity
respected and protected.
(7) Ed is not completely happy that the matter is presided over by magistrate Evil Eye. He feels
that his meeting with the magistrate was a situation of “hate at first sight”. In other words, he
believes that magistrate always “looks at me in the wrong way” and “probably harbours some ill-
feeling” against him. To this extent, he lodges a request for the recusal of the magistrate. Briefly
discuss the general requirements of the test for judicial bias. (4)
The requirements of the test for the perception of judicial bias are:
(i) There must be a suspicion that the judicial officer might be, not would be, biased.
(ii) The suspicion must be that of a reasonable person in the position of the accused.
(iii) The suspicion must be based on reasonable grounds.
The suspicion is one which the reasonable person referred to would, not might, have held.
(8) After the refusal to recuse himself by the magistrate, Evil Eye, Ed becomes very angry and
decides on a course of action. When asked to plead to the charges, on his next appearance, he
tells the magistrate that he “does not recognize the authority of this court.” He thereupon:
(a) expressly refuses to plead; and
The court shall enter a plea of not guilty if the accused will not plead or answer directly to
the charge.
(b) when pressed further to explain himself, mumbles something to the effect that “I did not do
anything wrong”.
Briefly explain what the court is required to do under these circumstances. (5
If, upon being required to plead, the accused does not do so directly, but makes a statement in
which he admits certain facts, or pleads guilty adding reservations and refutations (eg ‘guilty, but
he attacked me first’) the court should enter a plea of not guilty and then question the accused in
terms of s 115 to ascertain what facts he is prepared to admit.
(9) Ed is aware of an arrangement in terms which he might “strike a deal” with the prosecutor

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regarding the plea; in other words, plea bargaining. This, in his summation, is “better than going
through a trial where you don’t know what to expect”.
Discuss Ed’s option in relation to statutory plea bargaining. (12)

(1) In terms of s 2 of the Criminal Procedure Second Amendment Act 62 of 2001, section
105A has been inserted into Act 51 of 1977. In terms of s 105A the process of plea
bargaining has now been formalized in the Criminal Procedure Act: it is, in essence, a
codification of the abovementioned age-old practice. The central innovation is that the
prosecutor can now also reach an agreement with the defence on the sentence to be
imposed. Certain mandatory formalities are prescribed, such as that the whole
agreement must be in writing. The time for entering into an agreement (or agreements) is
before the commencement of the trial, i e before plea. Section 105A does not apply to a
charge or charges on acceptance of plea during trial. It is also a once-off situation: if the
court has ruled for a de novo trial (on the merits or the sentence), the parties may not
enter into a plea and sentence agreement in respect of a charge arising out of the same
facts. In determining whether a plea agreement complies with the requirements stipulated
in s 105A, a court will also examine subsection (1)(b)(iii) which provides for the
participation of the complainant/victim – Sassin [2003] 4 All SA 506 (NC).

The scheme of s 105A is broadly as follows:

• An ‘authorised in writing’ prosecutor and a legally represented accused may negotiate an
agreement on plea and sentence. Non-represented accused are excluded from the
provision.
• The judicial officer is not to participate in the negotiations. It may be asked what the ambit
of the prohibition is: It would be a pity if it were to preclude the parties from obtaining
intimation from the judicial officer as to whether he would be willing to consider, e.g., a
non- custodial sentence.
• In court the judicial officer must question the accused on the contents of the agreement to
satisfy himself whether he is in fact admitting all the allegations in the charge. If the court is
satisfied, it proceeds to the sentencing phase without, for the moment, recording a
conviction.
• When considering the sentence agreement, the court must be satisfied that the sentence
agreement is just, and if so, the court convicts the accused and sentences the accused to
the sentence agreed upon.
If the court is not so satisfied, it informs the parties of the sentence which the court considers
just. In the latter event, two possibilities arise:
(i) The prosecutor and the accused may elect to abide by the agreement on the merits and
the court then convicts the accused and proceeds to consider sentence in the normal
way;
(ii) The other alternative is that the parties (or one of them) opt to withdraw from the
agreement: This will mean that the trial must start de novo before another judicial officer.
Once a trial starts de novo, s 105A dictates that the agreement is pro non scripto: No regard may

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be had, or reference made, to any proceeding negotiations on the agreement itself, although the
accused may consent to all or certain of the admissions made by him, either in the agreement or
in the course of the proceeding. The parties may not, however, plea bargain in terms of s 105A in
respect of a charge arising from the same facts. This, nonetheless, does not preclude traditional
plea bargaining as it exists in practice.

(10) Discuss the circumstances under which an accused will not be entitled to acquittal or
conviction after pleading. (10)

The following instances are examples of when an accused will not be entitled to acquittal or
conviction:
(i) Where the magistrate has recused himself from the trial – Punshon v Wise NO 1948 (1) SA 81
(N); Magubane v Van der Merwe NO 1969 (2) SA 417 (N); Suliman 1969 (2) SA 385 (A).
(ii) Where separation of trials takes place – s 157.
(iii) Where a trial is referred to a regional court or is converted into a preparatory examination – ss
116 and 123.
(iv) Where the magistrate dies, resigns, or is dismissed – Mhlanga 1959 (2) SA 220 (T). In this case it
was held that also where the magistrate is transferred the accused is not entitled to a verdict. See
also De Koker 1978 (1) SA 659 (O); Makgetle 1980 (4) SA 256 (B). For a contrary decision, see
Gwala 1969 (2) SA 227 (N), where it was held that since a magistrate who has been transferred
may be administrative measures be placed in a position to finalise cases which had been initiated
before him, another magistrate is not competent to hear the case de novo. A transfer is not
equivalent to death, recusal or dismissal. Therefore, s 106(4) applies. In Tlailane 1982 (4) SA 107
(T), Gwala was followed in this connection, and Mhlanga rejected. Incapacity of a magistrate
persisting for a considerable period is treated in the same way as death of a magistrate. The
accused may be tried de novo before another magistrate – Makoni 1976 (1) SA 169. Where a
magistrate resigned, the case is to be resumed before another magistrate de novo without the
need for an order to this effect from another court – Poledo 2000 (2) SACR 734 (NC).
(v) Where it appears that the accused is before the wrong court.
(vi) Where the director of public prosecutions makes an application in terms of s 13 that a private
prosecution be stopped and that the accused be prosecuted de novo by the State.
(vii) Where a youth is referred to the Children’s Court (s 254) or where an enquiry is held in terms of
the Prevention and Treatment of Drug Dependency Act 20 of 1992 (s 255).
(viii) If a court finds that an accused, because of a mental disorder, is not capable of understanding
the proceedings so as to make a proper defence, the court must direct that the accused be
detained in a mental hospital or a prison pending the signification of the decision of the Minister,
and if the court so directs after the accused has pleaded to the charge, he will not be entitled to
be acquitted or convicted. If the court makes such a finding after the accused has been convicted
but before sentence is passed, the court must set aside the conviction – s 77(6). After recovery,
the accused may again be charged and tried.
(ix) Where an accused has pleaded in terms of s 119 – Hendrix 1979 (3) SA 816 (D); Singh
1986 (4) SA 263 (C).
Where the prosecution has been stopped by the prosecutor without the required consent of the director of
public prosecutions or any person authorized thereto by the director of public prosecutions in terms of s 6(b)
– Prokureur-Generaal, Venda v Magistraat Streekafdeling 1982 (2) SA 659 (V).

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CPR 3701
CRIMINAL PROCEDURE
2022

ASSIGNMENT

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QUESTION 1

Choose the CORRECT answer from the following statements

a. In High Court proceedings an accused may be brought before the court through a
charge sheet
b. A summary trial in a lower court is commenced by lodging a charge sheet with the
clerk of the court
c. In the case of arrest, the accused may be required to appear in court upon at least 14
days (Sundays and public holidays excluded) before the day of trial
d. The service of a summons upon an accused must take place at least 4 days (Sundays
and public holidays excluded) before the day of trial

QUESTION 2

Choose the CORRECT answer from the following statements

a. In practice the prosecutor usually charges the accused with the least serious crime
as main charge, and the more serious offences as alternative charges

b. The court may direct that the charges against an accused be tried separately, if in
its opinion this will be in the interests of the accused

c. No additional charges can be joined after questioning of the accused has

commenced

d. A Joinder of accused may not take place after the trial has commenced

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QUESTION 3

Choose the CORRECT answer from the following statements

a. In the High Court the presiding judge has a discretion whether or

not to sit with assessors

b. Where the court sits with two assessors and an assessor dies or becomes
incapable of performing his or her duties as assessor, the remaining members of
the court become functus officio

c. Where the court sits with two assessors and an assessor dies or becomes
incapable of performing his or her duties as assessor, the presiding judge may
acquit the accused summarily

d. The assessor's competence or lack thereof can be established subjectively

QUESTION 4

Choose the CORRECT answer from the following statements. The test for judicial bias requires
that:

a. There must be a suspicion that the judicial officer would be, not might be, biased
b. The suspicion of bias must be that of a reasonable person in the position of the
accused
c. The suspicion of bias must be based on foreseeable grounds
d. The suspicion of bias must be one which the reasonable person referred to might, not
would, have held

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QUESTION 5

Choose the CORRECT answer from the following statements

a. The court must enter a plea of 'guilty' if the accused refuses to plead or answer directly
to the charge
b. Where the accused refuses to plead or answer directly to the charge, a plea of 'not
guilty' entered by the court sit has the same effect as if the accused had pleaded
c. Where the accused, upon being required to plead, does not do so directly, but makes
an exculpatory statement in which he admits certain facts, the court should enter a
plea of 'guilty' and then proceed to convict the accused
d. Where it appears uncertain during the plea proceedings whether the accused is
capable of understanding the proceedings at the trial based on his or her mental state,
the court must convict the accused and then refer him or her for mental observation

QUESTION 6

Choose the CORRECT answer from the following statements. Traditional plea bargaining:

a. is informal in nature
b. entails a binding agreement in respect of the facts and the sentence to be imposed
c. entails the defence and the prosecution holding the court to an agreement on
sentence
d. does not bind the prosecution in accordance with the basic notions of fairness and
justice

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QUESTION 7

Choose the CORRECT answer from the following statements

a. In terms of s 153(1) of the Criminal Procedure Act all courts are empowered to
exclude the public from their proceedings whenever it appears to be in the interests
of the security of the State or of good order, public morals, or the administration of
justice.
b. Once the public has been excluded from a trial in terms of s 153, the court may never
relax the conditions
c. The court may under no circumstances allow the publication of information in respect
of a child accused
d. Only the identity of the child complainant is protected from disclosure

QUESTION 8

Choose the CORRECT answer from the following statements

a. No person may be present at any session of a child justice court unless his or her
presence is necessary in connection with the proceedings of that court
b. In the interests of the constitutional principle of open justice, the permission of the
presiding officer is not required for any person to attend any session of a child justice
court
c. A person under the age of 18 is, without exception, entitled to attend any criminal trial
d. The parent or guardian of a child accused, or a witness must appear on behalf the child
accused or witness at any session of a child justice. The child accused or witness need
not appear

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QUESTION 9

Choose the CORRECT answer from the following statements

a. A recalcitrant witness is one who refuses to take the oath or refuses to answer
questions
b. The court does not have the power institute a summary enquiry against a recalcitrant
witness who refuses to answer questions without a 'just excuse'
c. A 'just excuse' in terms in the context of refusal to testify is a narrower concept than
'lawful excuse'
d. A witness's sympathy with an accused's political ideals qualifies as 'just excuse'

QUESTION 10

Choose the CORRECT answer from the following statements

a. A joinder of accused persons is imperative, and not permissive

b. In general, the non-joinder of accused persons can hardly ever lead to an unfair trial
c. A participant is neither a perpetrator nor an accomplice
d. The word 'participants' as used in section 155(1) must be interpreted with reference
to substantive criminal law principles governing the classification of people involved
in separate offences

QUESTION 11

Choose the CORRECT answer from the following statements

a. The decision whether there ought to be a separation is in the discretion of the

presiding prosecutor

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b. The prejudice to be suffered in case of a separation of trials may be presumed

c. The applicant must show that there is a probability, and not a mere possibility, that
a joint trial will result in prejudice which would render his or her trial unfair
d. There is failure of justice when separation of trials is refused where one accused's plea
of not guilty is followed by an explanation of plea in terms of section 115 in which he
or she incriminates his or her co-accused

QUESTION 12

Choose the CORRECT answer from the following statements

a. Factual guilt, ascertained at the expense of a fundamental right of the accused, falls
short of the standard set by the principle of legality
b. In terms of the principle of legality the prosecution is required to prove the factual
guilt of the accused according to established legal rules and procedures
c. A presiding officer may cross-examination a witness
d. The racial identity of a presiding officer provides sufficient reason for an application
for the recusal of such officer

QUESTION 13

Choose the CORRECT answer from the following statements

a. In line with the duty to conduct a public trial, a presiding judicial officer may not order
the arrest of someone who commits an offence in the presence of the court
b. A court has a common-law power to intervene where questioning of witnesses goes
beyond acceptable limits or introduces irrelevancies
c. In the interests of trial fairness, a criminal court has no statutory right to curtail cross-
examination
d. Only the court may cross-examine witnesses

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QUESTION 14

Choose the CORRECT answer from the following statements

a. An ex-tempore judgment is a verdict which is given on appeal

b. A judge is not required to give reasons for any conclusions reached by him or her in
respect any question of law or fact
c. Only a magistrate and not a judge is required to give reasons for any conclusions
reached by him or her in respect any question of law or fact
d. A trial court's findings of fact are, in the absence of a demonstrable and material
misdirection by the trial court, presumed to be correct, unless the recorded evidence
shows these findings to be clearly wrong

QUESTION 15

Choose the CORRECT answer from the following statements

a. Competent verdicts are only possible if permitted by the common law

b. A court may still resort to a competent verdict even if the express charge
against the accused is proved
c. A competent verdict can only follow where there is proof on a
balance of probabilities of the implied offence
d. A conviction on a competent verdict must be regarded as an acquittal on
the original charge

QUESTION 16

Choose the CORRECT answer from the following statements

a. All forms of sentence constitute punishment

b. The condition of a suspended sentence is not a sentence in the strict sense
c. A caution does not constitute a sentence
d. A sentence is imposed by the prison authorities

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QUESTION 17

Choose the CORRECT answer from the following statements

a. South African legislation provides for the imposition of minimum

sentences in respect of all offences
b. Minimum sentences are intended to apply to a wide range of
serious offences only
c. When applying the minimum sentence regime the court impose a
lesser sentence if it is satisfied that exceptional circumstances exist
that justifying a lesser sentence than the one prescribed by the
legislature
d. Prescribed minimum sentences are applicable to an offender who
was under the age of 18 years when the offence was committed

QUESTION 18

Appeal

a. is concerned with the substantive correctness of the decision made by the

court
b. confines the applicant to the alleged irregularities in the proceedings
c. may be brought at any time
d. is lodged by way of notice of motion

QUESTION 19

Review

a. in terms of the Superior Courts Act can be brought only on the ground of
specific procedural irregularities
b. is tantamount to a retrial on the record
c. must be brought within a certain period
d. is lodged by way of an application for leave to review

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QUESTION 20

Choose the CORRECT answer from the following statements

a. The Constitution permits lower courts to develop the common law

b. Only superior courts have inherent jurisdiction to develop the common law
c. Superior courts have no inherent power to develop the common law
d. Lower courts have the jurisdiction to enquire into or rule on the constitutionality of
any legislation or any conduct of the President

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2021 - ASSIGNMENTS
ASSIGNMENT 01

Question 1

Discuss the jurisdiction in respect of offences, of the following courts:

1 The Supreme Court of Appeal

2 Provincial and local divisions of the High Court
3 The district courts or magistrates’ courts
4 The regional courts (15)

Answer

1 The Supreme Court of Appeal (See p. 34 – 35 (par. 2.2) of the Handbook

The Supreme Court of Appeal (SCA) is essentially a court of appeal. Thus, the SCA
operates, for all intents and purposes primarily as a court of appeal only and not a court
of first instance. The SCA does not have original sentencing jurisdiction, but may correct
incorrect sentences in accordance with the sentencing jurisdiction of the trial court as a
court of first instance.

In terms of s 172 of the Constitution, the court has inherent power to protect and regulate
its own procedures. The court has the power, like other superior courts, to order the
removal of any person interrupting the proceedings or influencing or insulting any
member of the court—s 41 of Act 10 of 2013.

The SCA has the authority to hear an appeal against any order or judgment of the High
Court and to decide such appeal. Persons who have been found guilty by a division of
the High Court may not automatically appeal to the SCA. The general principle in this
regard is that leave to appeal must first to be sought from the High Court before an
appeal can be made to the SCA.

In terms of s 333 of the CPA whenever the Minister of Justice has any doubt as to the
correctness of any decision given by any division of the High Court in any criminal case
on a question of law, or whenever a decision in any criminal case on a question of law is

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given by any division of the High Court which is in conflict with a decision in any criminal
case on a question of law given by any other division of the High Court, the Minister may
submit that decision or, as the case may be, such conflicting decisions to the SCA, and
cause the matter to be argued before it, in order that it may determine the said question
for the future guidance of all courts.

The SCA may decide any matter on appeal and may enquire into and rule on the
constitutionality of any legislation or any conduct of the President—s 170 of the
Constitution. The SCA may also make an order concerning the constitutionality of an Act
of Parliament, a provincial Act or any conduct of the President, but such an order must be
confirmed by the Constitutional Court—s 172 of the Constitution.

2 Provincial and local divisions of the High Court (See p. 37 (par. 2.3.3) of the
Handbook

Provincial and local divisions have original jurisdiction (in other words the ability to act as
the court of first instance) in respect of all offences.

The divisions of the High Court of South Africa have appeal and review jurisdiction in
respect of criminal proceedings emanating from lower courts. Furthermore, all the main
divisions of the High Court and the Gauteng Division of the High Court, Johannesburg,
when sitting as a ‘full court’ (ie sitting with three judges), have appellate jurisdiction to
hear an appeal in a criminal case decided by a single judge if the questions of law and of
fact and other considerations involved in the appeal are of such a nature that the appeal
does not require the attention of the Supreme Court of Appeal.

3 District courts (See p. 39 (par. 4.1) of the Handbook

A district court has jurisdiction to try all crimes except treason, murder and rape. A district
court may even try some serious offences against the State.

4 Regional courts (See p. 39 (par. 4.1) of the Handbook

A regional court may try all crimes except treason. A regional court may thus try murder
and rape.

Question 2 (See p. 76 (par. 4.13) of the Handbook

In the criminal justice system, the prosecution can do what is legally permissible to set criminal
proceedings in motion, such as determining the charges and the date and venue of the trial.

Discuss the phrase ‘the prosecution as dominus litis’. (15)

Answer
The prosecution can be described as dominus litis (‘master of the case’) [see Zuma 2006 (2)
SACR 257 (W)]. It merely means that the prosecution can do what is legally permissible to set

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criminal proceedings in motion, such as determining the charges and the date and venue of the
trial. An element of residual control by the courts over decisions taken by the prosecution as
dominus litis, remains essential. Fairness to the accused is an important guideline in exercising
this control. The following examples illustrate this point:

In Khoza 1989 (3) SA 60 (T) it was held that the prosecution, precisely because it is dominus
litis, should formulate and consolidate all its charges, in relation to a particular set of facts, to be
tried in a single case.

Similarly, although the prosecution can as dominus litis determine the numerical order in which
several accused are named in the charge or indictment, the court may, in the interests of justice
and fairness, order that the sequence in which the accused present their evidence be varied –
Swanepoel 1980 (2) SA 81 (NC) at 84D.

A presiding judicial officer in a criminal case does not have the authority to close the State’s
case if the prosecutor is unwilling to do so. But if the prosecutor, after an application by him for
the postponement of the trial has rightfully been rejected by the court, refuses to adduce
evidence or to close the State’s case, the judicial officer will continue with the proceedings as if
the prosecutor had indeed closed the State’s case – Magoda 1984 (4) SA 462 (C).

Question 3 (See p. 120 (par. 1) of the Handbook

It is a basic principle of the law of criminal procedure in almost every civilised community that
the trial of an accused must take place in his presence and that the verdict of the court and the
sentence that it imposes must be pronounced in his presence. Critically evaluate this position in
light of the Constitution and judicial interpretation. (20)

Answer

The general rule as to presence at trial was written into s 34 and 35(3)(c) and (e) of the
Constitution, safeguarding access to courts and including (as part of the right to a fair trial) the
right to a public trial (in the case of adult offenders) before an ordinary court of law. The
principle is also contained in s 158(1) of the CPA and is scrupulously upheld by the superior
courts. The following judicial interpretation serves as example of the application of the principles
of presence at trial:

In Seedat 1971 (1) SA 789 (N) the accused was convicted of an offence in terms of the
Insolvency Act. Prior to sentencing the accused, the magistrate called a certain C as an expert
witness in regard to certain bookkeeping matters. This step the magistrate took as a result of a
discussion which he had with the prosecutor in the absence of the accused and his legal
representative. This procedure; it was held upon appeal, amounted to a serious irregularity,
offending against the aforementioned basic principle of presence. The court of appeal
disregarded C’s evidence altogether for purposes of imposing a proper sentence.

In Radebe 1973 (4) SA 244 (O) the magistrate altered the suspension order on the accused’s
driver’s licence in his absence. On review it was held that the magistrate acted irregularly.

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In Rousseau 1979 (3) SA 895 (T) a medical practitioner testified in court. The magistrate
thereafter consulted another medical practitioner and obtained an opinion from him concerning
the testimony of the medical practitioner. Neither the accused nor his legal representative was
present during this consultation. This procedure, it was held, amounted to a serious irregularity
and the accused’s conviction and sentence were set aside.

In Madlala [2001] JOL 8632 (Tk) an application for the cancellation of bail of the accused was
considered in open court but in the absence of the accused and his legal representative. The
court held this to be a serious irregularity and accordingly set aside the cancellation of bail.

Note that the above basic principle means more than that an accused must merely know what
the State witnesses have said; it requires that there should be a confrontation (which is also
constitutionally protected); he must see them as they testify against him so that he can observe
their demeanour; and they must give their evidence in the face of a present accused. A failure
to allow this, amounts to a serious irregularity which in all likelihood will result in a failure of
justice which can lead to any conviction or sentence imposed in consequence thereto, being set
aside on appeal or review.

ASSIGNMENT 02

Question 1

Discuss the burden and standard of proof as well as the proof of previous convictions during the
course of a bail application. (15)

The burden and standard of proof in bail applications

(1) The burden and standard of proof in bail applications (See p. 233 (par. 9.7) of the
Handbook

The standard of proof as set out in ss 60 (11) (a) and 60 (11) (b) is a civil one, namely,
proof on a balance of probability.

Proof beyond a reasonable doubt is not necessary because guilt or innocence in respect
of the charge is not the issue.

(2) Proof of previous convictions (See p. 230 (par. 9.3) of the Handbook

Unlike in ordinary criminal proceedings, previous convictions may be proved by the state
in the course of a bail application.

The accused or his legal adviser is also compelled to inform the court whether the
accused has previously been convicted of an offence – s 60(11B)(a)(i).

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Any charges pending against the accused must also be disclosed by him or his legal
representative (2) and there is also a duty to inform the court whether the accused has
been released on bail pending those charges – s 60(11B)(a)(ii).
Where the legal representative submits the required information, whether in writing or
orally, (2) the accused shall be required by court to declare whether he confirms such
information or not – s 60(a11B)(b).

Question 2 (See p. 276 (par. 2.2) of the Handbook. The information must be read together
with (but not necessarily included herein in copious detail, so as provide sufficient clarity
to the context) in p. 265 – 269.

An inexperienced prosecutor in the lower court formulates a murder charge as follows: ‘The accused
is guilty of a crime in that the accused did intentionally and unlawfully cause the death of a human
being’.

In terms of section 84(1), and notwithstanding sections 86(1) and 88, is the charge formulated in
sufficient detail? (15)

Answer

Section 84(1) sets out the requirements with which a charge should comply. In short, this
section provides that the relevant offence should be set forth in the charge in such a manner
that the accused is sufficiently informed of the nature of the charge brought against him. Section
35(3)(a) stipulates that the accused must be informed of the charge with sufficient detail to
answer it. In order to fairly state that an accused is ‘sufficiently informed’ all of the elements of
the offence should be mentioned in the charge, or to put it differently, the charge should
disclose an offence. Section 84(1) specifically requires that sufficient particulars as to the time
and place (unless such are not an essential element of the charge) at which the offence is
alleged to have been committed, the person (if any) against whom and/or the property (if any) in
respect of which the offence is alleged to have been committed, should be furnished in the
charge. Compliance with the foregoing requirements of a charge and the failure in the charge
drafted by the prosecutor, can be practically demonstrated by referring to a correctly formulated
charge of murder.

Particulars furnished, are:

1 The name of the offence for which the accused is indicted (murder);
2 All the elements of the crime murder (intention, unlawfulness, killing of another human
being);
3 The time, and place where the offence was allegedly committed; and
4 The person against whom the offence was allegedly committed.

Considering the facts provided and the requirements of s 84(1), the charge stipulated above is
insufficient in that if fails to mention the time and place of offence and the person against whom
the crime was committed. The Rautenbach decision determined that charge sheets should be
kept as simple as possible, but should at least be intelligible. The Pillay decision further
stipulates that the charge should at the very least disclose an offence, which the one stipulated,

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succeeds in doing but not in sufficient detail, so as to satisfy s 35(3)(a) of the Constitution and
s 84(1) of the CPA. (1) Ex parte the Minister of Justice: In Re R v Masow and Another 1940 AD
stipulates that a charge should first disclose an offence and secondly contain sufficient detail as
to time, place, person and property. The fact that ss 86(1) and 88 allow for amendment is
insufficient excuse for vague drafting of charge sheets as confirmed in Wannenburg 2007 (1)
SACR 27 (C) and Tshali 2007 (2) SACR 23 (C).

Question 3

There are three mechanisms provided in the Child Justice Act 75 of 2008 to secure the attendance
of a child offender at a preliminary inquiry. Discuss these fully. (20)

Answer

i. Written Notice to Appear (See p. 150 (par. 1) of the Handbook

The Child Justice Act makes provision for a written notice to appear at a preliminary inquiry to
be handed to a child who is alleged to have committed an offence referred to in Schedule 1 to
that Act—s 18(1). Such a notice may not make provision for the child to admit guilt and pay a
fine—s 18(2). The notice must be handed to the child in the presence of his or her parent,
guardian or an appropriate adult and the child and his or her parent, guardian or an appropriate
adult must acknowledge receipt by means of a signature or mark—s 18(3)(a). In exceptional
circumstances, where it is not possible to hand a written notice to the child in the presence of
his or her parent, an appropriate adult or guardian, the written notice must be handed to the
child and a copy must, as soon as circumstances permit, be handed to the parent, appropriate
adult or guardian, and both the child and parent, appropriate adult or guardian must
acknowledge receipt by way of a signature or mark—s 18(3)(b). A police official must, in the
prescribed manner (see reg 16 of the Regulations in terms of the Act, referred to above), when
handing a written notice to the child, parent, appropriate adult or guardian, inform them of the
nature of the allegation against the child, the child’s rights, explain to them the immediate
procedure to be followed in terms of this Act, warn the child to appear at the preliminary inquiry
on the date and at the time and place specified in the written notice and to remain in
attendance, and warn the parent, appropriate adult or guardian to bring or cause the child to be
brought to the preliminary inquiry on the date and at the time and place specified in the written
notice and to remain in attendance—s 18(4)(a). The police official must also immediately, but
not later than 24 hours after handing the written notice to the child, notify the probation officer
concerned—s 18(4)(b).

ii. Summons (See p. 148 (par. 2) of the Handbook

Subject to s 4(2) of the Child Justice Act 75 of 2008, if the person summoned fails to appear at
the place on the date and at the time specified or fails to remain in attendance, he or she is
guilty of an offence and liable to punishment of a fine or imprisonment for a period not
exceeding three months—s 55(1) of the Criminal Procedure Act. The court may, if satisfied from
the return of service that the summons was duly served (cf Ngcobo 1966 (1) SA 444 (N) and

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Minister van Polisie v Goldschagg 1981 (1) SA 37 (A)) and that the accused has failed to
appear or to remain in attendance, issue a warrant for his or her arrest.

iii. Arrest (See p. 164 (par. 5.5.1.1) of the Handbook

A child who commits an offence while under the age of 10 years does not have criminal
capacity and cannot be prosecuted for that offence—s 7(1) of the Child Justice Act. A police
official who has reason to believe that a child suspected of having committed an offence is
under the age of 10 years may not arrest the child, but must, in the prescribed manner (see reg
3 of the Regulations in terms of the Act), immediately hand the child over (a) to his or her
parents or an appropriate adult or a guardian; or (b) if no parent, appropriate adult or guardian is
available or if it is not in the best interests of the child to be handed over to the parent, an
appropriate adult or a guardian, to a suitable child and youth care centre, and must notify a
probation officer—s 9(1).
A probation officer who receives such a notification from a police official must assess the child
as soon as possible but not later than seven days after being notified—s 9(2). The probation
officer may, having assessed the child, in the prescribed manner (see regs 5–11 of the above-
mentioned Regulations)—
(i) refer the child to the children’s court;
(ii) refer the child for counselling or therapy;
(iii) refer the child to an accredited programme designed specifically to suit the needs of
children under the age of 10 years;
(iv) arrange support services for the child;
(v) arrange a meeting, which must be attended by the child, his or her parent, an appropriate
adult or a guardian, and which may be attended by any other person likely to provide
information for the purposes of the meeting; or
(vi) decide to take no action. If probation officer decides not to take any action, this does not
imply that the child is criminally liable for the incident that led to the assessment—s 9(3).
The purpose of the meeting convened by a probation officer is to assist the probation officer to
establish more fully the circumstances surrounding the allegations against the child and to
formulate a written plan appropriate to the child and relevant to the circumstances—s 9(4).
In the event of a child failing to comply with any obligation imposed on him or her, including
compliance with the written plan, the probation officer must refer the matter to a children’s court
to be dealt with in terms of the Children’s Act—s 9(7).

PLEASE NOTE THAT STUDENTS WHO COMPLETED THE NASWER ACCORDING TO THE
MODEL ANSWER AS SET OUT IN THE WORKBOOK Swanepoel JP (ed) The Criminal
Procedure Workbook 2nd edition (2016) Juta Cape Town WILL BE CREDITED EQUALLY

In terms of s 17 of the CJA the three procedures to secure the attendance of a child at a
preliminary inquiry are:

i. Written notice to appear

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If a child is suspected of committing a Schedule 1 crime, a police official in terms of s 56

of the CPA may hand to a child a written notice to appear at a preliminary inquiry. In
terms of the CJA a written notice in this regard cannot contain an option to pay an
admission of guilt fine as provided for in s 56(1)(c) of the CPA. The written notice
(containing the date, time and place of the inquiry) must be handed to the child in the
presence of his parent(s), appropriate adult or guardian and must be acknowledged by a
signature or mark by the child and adult party. The police official handing over the notice
to appear must:

(1) inform the child and adult party of the charge(s);

(2) inform them of the child’s rights (discussed later in this chapter);
(3) explain the immediate procedures which must be followed in terms of the CJA;
(4) warn the child to appear on the date and time specified and to remain in attendance
until informed otherwise;
(5) warn the adult party to cause the child to be brought to the court at the time and
date specified and to remain in attendance; and
(6) within 24 hours of handing the written notice to the child, inform the probation officer
in terms of s 5(1) and 5(2).

ii. Summons

A summons issued in terms of s 54 of the CPA must specify the date, time and place of
appearance for a preliminary inquiry. The summons must be served on the child in the
presence of his parent(s), guardian or other appropriate adult.

A police official must:

1 inform the child and adult party of the charge(s);

2 inform them of the child’s rights (discussed later in this chapter);
3 explain the immediate procedures which must be followed in terms of the CJA;
4 warn the child to appear on the date and time specified and to remain in attendance
until informed otherwise; and
5 warn the adult party to cause the child to be brought to the court at the time and
date specified and to remain in attendance.

The police official must, within 24 hours of handing the summons to the child, inform the
probation officer in terms of s 5(1) and 5(2).

iii. Arrest

Application for a warrant of arrest of a child is determined by s 43 of the CPA which is

also applicable to the arrest of a child. Section 40 of the CPA with regard to arrest without
a warrant is applicable to children, unless the child has committed a Schedule 1 crime.

As a point of departure, a child may not be arrested for a Schedule 1 offence unless:

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1 the police official has reason to believe that the child lacks a fixed residential
address;
2 the child will continue to commit the offence, unless arrested;
3 the police official has reason to believe that the child poses a danger to another
person;
4 the child is caught in flagrante delicto.

Once a child has been arrested, the arrestor must:

1 inform the child and adult party of the charge(s);

2 inform them of the child’s rights (discussed later in this section);
3 explain the immediate procedures which must be followed in terms of the CJA;
4 notify the parents, an appropriate adult or guardian of the arrest (if such persons
cannot be traced, a report of the situation must be given to the presiding officer at
the preliminary inquiry).

The police official must, within 24 hours of arrest, inform the probation officer in terms of
s 5(1) and 5(2);

Any child who is arrested and remains in custody must be brought to a magistrate’s court
having jurisdiction to undergo the s 5(2) to (4) procedure. In this case s 50(1)(d) of the
CPA with regards to extension of the 48-hour period, is applicable.

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Assignment 03

Note: All references to “the Act” or to “the CPA” are to the Criminal Procedure Act 51 of 1977.
All references to “the CJA” are to the Child Justice Act 75 of 2008.

Question 1

In general.

(a) A trial may take place in the absence of the accused where he/she waives his/her right to
attend.
(b) The verdict and sentence must, notwithstanding (a) above, be handed down in the
presence of the accused or his/her duly authorised representative.
(c) The right to be present can be limited in certain circumstances.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (a) is correct.
[4] Only statements (b) and (c) are correct.

Question 2

The general rule is that a trial must take place in the presence of the accused. There are certain
exceptions to this rule.

Which of the following constitute(s) legitimate exceptions to the rule?

(a) Exclusion of the accused due to the misbehaviour of the accused person’s witnesses.
(b) The situation where a co-accused applies to court to exclude an accused.
(c) Instances where the accused gives evidence by means of closed-circuit television or
similar electronic media.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statements (a) and (b) are correct.
[4] Only statement (c) is correct.

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(a) The charges against an accused are formulated before the completion of the
investigation.
(b) An accused is required to plead to the charges and undergo a preparatory examination
before he/she is arraigned for trial.
(c) A preparatory examination is also referred to as a summary trial in the district court.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statements (a) and (b) are correct.
[4] Only statement (c) is correct.

Question 4

(a) A plea of autrefois acquit cannot be sustained in terms of section 122A of the CPA.
(b) A plea of autrefois convict cannot be sustained in terms of section 122A of the CPA.
(c) A plea of guilty in terms of section 122A of the CPA is identical in nature to a plea of
guilty in terms of section 106 of the CPA.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statements (a) and (b) are correct.
[4] Only statement (c) is correct.

Question 5

(a) A preparatory examination is NOT considered a criminal proceeding.

(b) The final decision in a preparatory examination rests with the court.
(c) During a preparatory examination, the accused is required to plead at the
commencement of the examination.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statements (a) and (b) are correct.
[4] Only statement (c) is correct.

Question 6

(a) Bail is a form of monetary release from custody.

(b) Bail is inherently penal in nature.
(c) Bail can be used to deter other would-be offenders.

CORRECT ANSWER: Option (NB: NO CORRECT OPTION: ALL STUDENTS WHO COMPLETED THE
ASSIGNMENT AWARDED THE REQUISITE MARK FOR THE QUESTION)

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[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statements (a) and (c) are correct.
[4] Only statement (b) is correct.

Question 7

(a) During a bail application, the court may consider, as a factor, the prevalence of the type
of crime with which the accused has been charged.
(b) The accused person’s previous convictions or pending charges are irrelevant when the
granting of bail is considered.
(c) In limited instances, bail can be granted by the police.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statements (a) and (c) are correct.
[4] Only statement (b) is correct.

Question 8

(a) The strict rules of evidence are relaxed during bail applications.
(b) Hearsay is admissible during a bail application.
(c) Previous convictions may be proved by the state during a bail application.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statements (a) and (b) are correct.
[4] Only statement (c) is correct.

Question 9

(a) A charge sheet (or indictment) does NOT necessarily have to disclose an offence in
order to be valid.
(b) An indictment must be served on the accused at most 14 days before the trial.
(c) It is mandatory for the prosecution to attach a list of witnesses to the charge sheet.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (a) is correct.
[4] Only statement (a) and (b) are correct.

15
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Question 10

(a) In principle, an accused is entitled to access exculpatory documents in the docket.

(b) Where an accused is charged with a common-law offence, the only requirement is that it
be named in order for the charge sheet to be valid.
(c) Sections 86 and 88 of the CPA make provision for the same action in respect of the
correction of a defect in the charge sheet.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (a) is correct.
[4] Only statement (b) is correct.

Question 11
(a) Where a charge is defective for want of an averment that is an essential ingredient of the
relevant offence, the defect can be cured by evidence at the trial proving the matter
which should have been averred.
(b) Section 86 makes provision for amendment of the charge and requires that the proposed
amendment must differ to such an extent from the original charge that it is in essence
another charge.
(c) When the accused is called upon to plead to a charge and it appears uncertain whether
he or she is capable of understanding the proceedings at the trial so as to be able to make
a proper defence, an enquiry into his or her mental state must be made by the court, with
the assistance of a general medical practitioner.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (a) is correct.
[4] Only statement (b) is orrect.

Question 12

(a) The court must enter a plea of not guilty if the accused refuses to plead or answer
directly to the charge.
(b) If the totality of the accused’s criminal conduct can be accommodated in one single
charge, the accused may NOT be convicted on multiple charges.
(c) An accused can now be found guilty even though the indictment does NOT disclose an
offence, as long as the evidence proves the offence.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (b) is correct.
[4] Only statements (a) and (c) are correct.

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Question 13

(a) The rule against the splitting of charges was in fact always directed at the duplication of
convictions and was designed to apply in the field of punishment.
(b) Where an accused is charged with both rape and incest arising from the same act of
intercourse, he will be convicted of both.
(c) If an assault is committed pursuant to or in the course of an attempt to escape, the
accused should be convicted of one of these offences only.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (b) is correct.
[4] Only statements (a) and (c) are correct.

Question 14

(a) Threatening a judicial officer will materially affect his or her impartiality, and his or her
refusal to recuse himself or herself on this ground is therefore irregular.
(b) An accused may plead truth and public benefit where the charge is one of criminal
defamation.
(c) It is regular for a court to put questions directly to an accused who is represented.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (b) is correct.
[4] Only statements (a) and (c) are correct.

Question 15

(a) Circuit courts deviate jurisdictionally from the fixed division or seat of court.
(b) A child justice court is any court established in terms of the Children’s Act 38 of 2005.
(c) A child justice court can simultaneously serve as a children’s court where a child accused
is affected by social or welfare issues.

[1] None of the statements is

correct.(2] All of the statements are
correct.
[3] Only statement (a) is correct.
[4] Only statements (a) and (b) are correct.

Question 16

(a) Where the plea of an accused is ambiguous, the court must enter a plea of not guilty and
question the accused in terms of section 115 of the CPA.
(b) Truth and public benefit constitute a valid plea in terms of section 106 of the CPA.
(c) An accused cannot object to the information in a charge sheet or indictment, but can
17
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object to the fact that such charge sheet or indictment discloses insufficient detail.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (a) is correct.
[4] Only statements (b) and (c) are correct.

Question 17

(a) The Constitution of the Republic of South Africa, 1996 entrenches the right to a public
trial.
(b) The right to a public trial can be validly limited where necessary.
(c) In terms of the CJA, open justice is generally limited.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (c) is correct.
[4] Only statements (a) and (b) are correct.

Question 18

(a) Any number of participants in the same offence may be tried jointly.
(b) Any number of accessories after the same fact may be tried jointly.
(c) Joinder is permissive and not imperative.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (c) is correct.
[4] Only statement (b) is correct.

Question 19

(a) Section 336 of the CPA provides that, where an act constitutes an offence under a statutory
provision and the common law, the accused can be convicted and sentenced under either
the statutory provision or the common law.
(b) There is no consensus on the part of South African courts as to whether the conduct of a
perpetrator that occurs over a long period of time should form the subject of a single
conviction or multiple convictions.
(c) A court can order the removal of a trial from one venue to another venue if the court deems
it necessary or expedient.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (c) is correct.
[4] Only statements (a) and (b) are correct.

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Question 20

(a) It is NOT necessary for the court to question an accused who has pleaded guilty in terms
of section 112 of the CPA.
(b) A child offender can plead guilty at the preliminary-inquiry stage in terms of section 112
of the CJA.
(c) Section 115 of the CPA can be used to alter a plea of guilty to one of not guilty where,
during the arraignment phases, the court finds that the accused has a defence.

[1] None of the statements is correct.

[2] All of the statements are correct.
[3] Only statement (c) is correct.
[4] Only statements (a) and (b) are correct.

19
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2020 - ASSIGNMENTS
Phil Philanderer is charged with the murder of his wife, Faithful. The alleged offence took place
in their marital home, where the two were alone at the time. In his submissions to the Director of
Public Prosecutions (DPP), Sheepish Shaun, Phil contends that he was, in fact, the victim in the
whole affair, and that he killed Faithful in self-defense. After the perusal of all the evidence at
the disposal of the prosecution, the DPP decides “after a thorough and intense analysis of the
merits”, that there is, indeed, a “prima facie” case for the accused to answer. However, the case
is, in his view “not winnable, and should, therefore, not be pursued any further, in the interests
of justice”. However, the deceased’s brother, Belligerent Ben, is unhappy with the decision of
the DPP. He approaches an attorney, Clever Trevor, for advice on whether there is any
recourse to the decision of the DPP. Clever Trevor advices that a Private Prosecution may be
instituted by Belligerent Ben. Ben approaches the DPP with the intention to institute a Private
Prosecution.

(a) The DPP informs Ben that he (Belligerent Ben) has no locus standi in the matter, as
he has no “substantial interest” in the case. Discuss the classes of persons who qualify
for locus standi on a private prosecution under certificate nolle prosequi. (4)

Section 7 of the Criminal Procedure Act provides locus standi to the following persons in any case
in which an attorney-general declines to prosecute for an alleged offence—
(a) any private person who proves some substantial and peculiar interest in the issue of the trial
arising out of some injury which he suffered individually as a consequence of the commission of
the said offence;
(b) a wife or husband, if the said offence was committed in respect of his or her wife or husband;
(c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if
the death of such person is alleged to have been caused by the said offence; or
(d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his
ward, may, subject to the provisions of section 9, either in person or by a legal representative, (not
a juristic person) institute and conduct a prosecution in respect of such offence in any court
competent to try that offence.

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(b) Based on your answer in (a), would you say that Belligerent Ben, indeed, qualifies to
preside over a private prosecution under certificate nolle prosequi? (1)

Yes he does qualify to preside over the matter since he is the next of kin of the deceased.
Some students understood the question, when referring to the word “preside”, to mean to preside
as a presiding officer and their answer was, therefore “No”. In that case the students were credited
for as long as there was a substantiation as indicated below:
Ben does not qualify to preside (as a presiding officer) over the matter as a private prosecution but
he can institute proceedings as a private prosecutor and will be responsible for all logistical
necessities.

(c) Discuss the essential aspects of the certificate nolle prosequi. (8)

No private prosecutor wishing to proceed in terms of Sec 7 can obtain the process of any court for
summoning any person to answer any charge unless such private prosecutor produces a so-called
certificate nolle prosequi to the officer authorized by law to issue such process.
A certificate nolle prosequi is a certificate signed by a DPP in which the DPP confirms, first, that he
or she has examined the statements or affidavits on which the charge is based and, secondly, that
he or she declines to prosecute at the instance of the state- Sec 7(2)(a).
A DPP must, at the request of the person intending to prosecute grant the certificate nolle prosequi in
every case in which he or she has declined to prosecute.
In terms of Sec 7(1)(a) to (d), it appears that the prosecutor is not given the power to investigate
whether the private investigator has the necessary locus standi or not.
In terms of section 7(1)(a), the private prosecutor must be a private person and Juristic person.
(1National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional
Development 2016 (1) SACR 308 (SCA).
The DPP is not required to identify or particularise the chargers on which he or she declines to
prosecute.
The charges preferred against the accused must be exactly the ones upon which the NDPP declined
to prosecute.
The certificate nolle prosequi lapses after three months unless the proceedings have commenced. (

(d) To avoid frivolous and unnecessary private prosecutions, the legislature places a
particularburden on the potential private prosecutor, to indicate his or her willingness to
follow through with the prosecution without unfairly prejudicing the accused. Briefly
mention what this “burden” entails, and in what manner the prosecutor expected to
discharge it.

Section 9 of the Act provides that:

(1) No private prosecutor referred to in section 7 shall take out or issue any process
commencing the private prosecution unless he deposits with the magistrate’s court in
whose area of jurisdiction the offence was committed—
(2) (a) the amount (R2500.00 currently) the Minister may from time to time determine by
notice in the Gazette as security that he will prosecute the charge against the accused
to a conclusion without undue delay; and
(3) (b) the amount such court may determine as security for the costs which may be

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incurred in respect of the accused’s defence to the charge.

Whilst sleeping in his house with his family, Jake is awoken by noise in the kitchen. Fearing for
his and his family’s lives, he retrieves his firearm from its safe, and proceeds toward the
direction of the noise. Upon arrival in the kitchen, he accosts Paul and Zakes, who are in
possession of a television set, which he recognizes as his own. Upon seeing Jake, they (Paul
and Zakes) decide to run away, dropping the television set to the floor. As they run out of the
house Jake, shouts at them to stop, but they continue to flee out of the house. Jake chases
after them. Realizing that he cannot possibly catch them, he fires several shots in the direction
of Paul and Zakes, in order to stop their flight. In the process, two of the shots fatally strike
Zakes, killing him. Paul manages to escape.

(a) Discuss, in the context of the above-mentioned facts, the factors which were set out by the
Constitutional Court in Ex Parte: Minister of Safety and Security: In re: S v Walters 2002
(4) SA 613 (CC) at 643, regarding the use of force in order to effect arrest. (10)

(a) The purpose of arrest is to bring before court for trial persons suspected of having
committed offences.
(b) Arrest is not the only means of achieving this purpose, nor always the best.
(c) Arrest may never be used to punish a suspect.
(d) When arrest is called for, force may be used only where it is necessary in order to carry
out the arrest.
(e) Where force is necessary, only the least degree of force reasonably necessary to carry
out the arrest may be used.
(f) In deciding what degree of force is both reasonable and necessary, all the circumstances
must be taken into account, including the threat of violence the suspect poses to the arrester
or others, and the nature and circumstances of the offence the suspect is suspected of
having committed; the force being proportional in all these circumstances.
(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited
circumstances only.
(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to
the arrester or others or is suspected on reasonable grounds of having committed a crime
involving the infliction or threatened infliction of serious bodily harm and there are no other
reasonable means of carrying out the arrest, whether at that time or later.
i) These limitations in no way detract from the rights of an arrester attempting to carry out an
arrest to kill a suspect in self-defence or in defence of any other person.

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(b) Do the actions of Jake in firing shots at Paul and Zakes conform to the Constitutional Court
injunction? Briefly state the reasons why you agree or disagree with Jake’s actions. (5)

NO, the actions of X do not conform to the injunction of the Constitutional Court as set out above.
One of the most important considerations when deciding to use force to effect arrest [as set out in
(f) and (h), above] is the threat of violence which the suspect poses to the arrester or to others,
and the nature and circumstances of the offence the suspect is suspected of having committed.
According to the facts in this case there was no threat of violence apparent to X or any member of
his family.
It may, therefore, be concluded that X’s conduct or use of force was disproportional to the
circumstances which prevailed at the time.
The shooting of a suspect is permitted, [as set out in (f) and (h), above] in only limited
circumstances, particularly where the suspect is alleged to have committed an offence which
includes the infliction of grievous bodily harm.

(c) X is arrested on a charge of treason and is held in custody in the police cells for
questioning. X addresses a request to be released on bail to the warrant officer in charge
of the cells. Discuss the legal principles involved (10)

An accused who is in custody in respect of any offence, other than an offence referred to in Part II
or Part III of Schedule 2(1) may, before his or her first appearance in a lower court, be released on
bail in respect of such offence by any police official of or above the rank of non-commissioned
officer, in consultation with the police official charged with the investigation, if the accused
deposits at the police station the sum of money determined by such police official. Police bail can
only be granted before the accused appear before a court of law, this grants the courts direct and
exclusive control over release on bail once the case is on the roll. Murder and rape appear under
schedule 2 part II of the CPA and this means that police bail can never be possible in this instance.
Police bail may not be granted in terms of infrastructure-related offences. It has been held that,
since in principle a theoretically innocent person should not be deprived of his liberty, an
application for police bail should – like ordinary bail application – neither be frustrated by an
excessive amount nor be refused in the absence of substantial cause for such refusal– MacDonald
v Kumalo 1927 EDL 293. (It has been suggested that an action for damages will lie should police
bail be refused on malicious grounds, or where the properly authorised official had simply refused
to exercise his discretion, Shaw v Collins (1883) 2 SC 389. In Mvu v Minster of Safety and
Security and Another 2009 (2) SACR 291 (GSJ) the court determined that police officials must
apply their mind to the question of continued detention and the circumstances relating thereto
which includes a consideration of whether continued detention is necessary at all. Where
conviction will not likely result in a punishment other than a fine, or other non-imprisonment
penalty, it is highly undesirable for pre-trial detention to continue after arrest. Z is mistaken when
suggesting that the police could release X on bail since the crimes X is charged with do not allow
for police bail.

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(d) Malose is charged with assault in the magistrate’s court. Malose admits while being cross-
questioned that he had the intention of killing the victim of the assault and would, in fact,
have done so had a witness for the state not appeared on the scene. The prosecutor
realizes that he should have charged Malose with attempted murder. How can he correct
the error procedurally? Explain the relevant procedures

Section 86(1) makes provision for the amendment of an indictment in the following three
situations:
(a) Where it is defective for want of an essential averment;
(b) Where there is a variance between the averment in the charge and the evidence offered in
proof of such averment; or(c) Where words have been omitted, or unnecessarily
inserted, or any other error is made.
The following points regarding the amendment of a charge are to be noted:
(a) In terms of s 86(1) the court may order an amendment only if it considers that the making of
the amendment will not prejudice the accused in his defence– Taitz 1970 (3) SA 342 (N).
There will not be prejudice if there is but a slight variance or where it is clear that the
defence would have remained exactly the same had the State originally presented the
charge in the amended form.
(b) Section 86 makes provision for amendment of the charge – not for replacement thereof by
an altogether new charge– Barkett’s Transport (Edms) Bpk 1988 (1) SA 157 (A). Should
a new charge be framed in the course of a trial, the possibility of prejudice to the accused
is strong; the accused comes to court prepared to meet a particular charge, and will now
be faced with a different issue – Slabbert 1968 (3) SA 318 (O).
(c) Section 86(4), however, provides that the fact that a charge has not been amended as
provided in this section shall not, unless the court has refused to allow the amendment,
affect the validity of the proceedings thereunder. According to our courts it must be
interpreted in such a way that if an amendment would have been in order by virtue of
subsection , ie if it would not have prejudiced the accused in his defence, the failure to
effect the amendment will not invalidate the proceedings, except where the court refused
to allow the amendment– Coetzer 1976 (2) SA 769 (A) at 772.
Like s 86, s 88 was also brought in by the Legislature to cure errors made by persons drawing
up charges.

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In the case of s 88, the defect in the charge sheet is cured by evidence presented in court.
The following comments concerning this section are noteworthy:
• The language of the section indicates that, at the very least, the offence with which the
accused is charged should be named in the indictment - Mcwera 1960 (1) PH H43 (N). If
the prosecutor wants to charge the accused with theft, he should, it is submitted, at the
very least use the word ‘theft’ in the indictment. Where a statutory offence is alleged, the
number of the section should at least be described accurately if the prosecutor wants to
rely on s 88.
• Even though an accused may now be convicted upon an indictment which does not disclose
an offence, the prosecutor should exercise caution by framing the indictment in such
terms that it does disclose an offence. If he fails to do so the accused can before
pleading raise an exception against the charge.
With regard to the given facts above, the prosecutor will need to approach the DPP and request
that the trial be converted to a preparatory examination under section 123(b).
The charge cannot be amended to the one of attempted murder because that would
prejudice the interests of the accused.The accused has the right to be found either guilty
or not guilty on the charge of assault. If he is found guilty of assault, he would be able to
enter the plea of autrefois convict if he were charged with attempted murder on the same
facts later.The prosecutor can continue with the trial and argue that the intention of the
accused should be taken into account as an aggravating circumstance when a fitting
sentence is considered . Note in this regard that the court may impose the maximum
penalty within its jurisdiction for assault, and that even if the accused had been charged
with attempted murder in the magistrate's court, that court would in any case have lacked
the jurisdiction to impose a heavier penalty. This should be done before conviction and
not before sentencing . Please refer to S v Tieties [1990] ZASCA 4; 1990 (2) SA 461
(AD) . If the DPP decides that the request must be met, the record of proceedings will be
forwarded to him and he will be able to recommend that the accused stand trial before a
regional or a higher court, both of which have the jurisdiction to impose a heavier penalty
than the magistrate's court.In this case the accused will be charged with attempted
murder in the court determined by the DPP.

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ASSIGNMENT 2 – SEMESTER 1

QUESTION ONE

(1) Y threatens X and says that unless X pays a large amount of money to her (Y) , she(Y) will
inform X’s employer that X is having an intimate relationship with her employer’s husband.
X reports the matter to the police. Y is arrested and charged with extortion. X is afraid that
if she testifies in open court, the information will come to the attention of her employer in
any case. She approaches you for legal advice. Advise on her legal position. (10)

The general rule is that criminal proceedings must take place in open court, and in the presence of
the accused. An accused’s right to a fair trial includes the right to a public trial as protected in
section 35(3)(c) of the Constitution. It was held in Magqabi v Mafundityala 1979 (4) SA 106(E) and
Young v Minister of Safety and Security 2005(2) SACR 437(SE) that the public is entitled to be
present during criminal trials.
However, in terms of section 153(2) of Criminal Procedure Act , if it appears to any court at
criminal proceedings that there is a likelihood that harm might result to any person, other than an
accused , if such person testifies at such proceedings, the court may direct the person to testify
behind closed doors. The court may order that no person must be present when such evidence is
given unless his presence is necessary in connection with such proceedings or is authorised by
the court. The court may, furthermore, order that the identity of such person must not be revealed
or that it must only be revealed for a period specified by the court.
Furthermore, section 153(3)(c) provides for an exception in criminal proceedings relating to a
charge that the accused committed an “Extortion” . Thus, the court before which the proceedings
are pending may, at the request of such other person or if, he is minor, at the request of his parent
or guardian, direct that any person whose presence is not necessary at the proceedings or any
person or class of persons who are mentioned in the request, must not be allowed into the
proceedings, However, judgement and sentence must be delivered in open court if the court is of
the opinion that the identity of the other person concerned would not be revealed thereby.
X may make a request to the court in terms of section 153(3)(c) that the proceedings must be
conducted made in closed doors and members of the public should also be prohibited, since a
harm to her part might ensue if the member of the public attend a trial.

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8.2 Assignment 02 – Semester 1

(2) X receives a threat that she will be killed if she testifies in a murder trial. X is summoned to
appear in court. She approaches you for legal advice. Advice her on the legal position. (5)

X will be guilty of offence in terms of section 188 if she fails to comply with the summons (1) and
sentence will be imposed in terms of section 170(2), imprisonment for a period not exceeding three
(3) months or imposition of fine not exceeding R300. If X complies with the provision of the
summons but refuses to testify, she will be guilty of an offence in terms of section 189(1) unless
she can convince the court that she has a valid excuse not to testify. In terms of the Witnesses
Protection Act 112 of 1998, if X qualifies for protection under this Act, she will be placed under
temporary protection by the state and since there is an imminent threat for her security of person,
or threat to her life, she will be afforded protection by the state. Note that if X is under 18 years of
age, the provisions of section 170A, which provide for testimony through an intermediary, may also
be applicable.

(3) Discuss the standards which must be maintained by the judicial officer in the questioning of
witnesses as set out in Mabuza 1991 (1) SACR 636 (O). (5)

The standard which a judicial officer should maintain in the questioning of witnesses and the accused
was summarised in S v Mabuza 1991(1) SACR 636 (0) at 638g, as follows:
(a) The court should not conduct its questioning in such a manner that its impartiality can be
questioned or doubted.
(b) The court should not take part in the case to such an extent that its vision is clouded by the dust
of the arena and is unable to adjudicate properly on the issue.
(c) The court should not intimidate or upset a witness or the accused so that his or her answers are
weakened or his or her credibility shaken and-
(d) The court should conduct the trial in such a way that its impartiality, its open mindness, its
fairness and reasonableness are manifest to all who have an interest in the trial, in particular the
accused.

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Question 2

(1) An unrepresented accused ,X, is found guilty of an offence in a lower court. The presiding
officer , who has held the rank of magistrate for 10 years, sentences X as follows: a fine of
R 8000 or imprisonment for 12 months , plus a further period of three years, suspended as
a whole for three years, on a condition that the accused does not commit further offences.
Comment on the sentence and the relevant legal principles. (10)

The question refers to the automatic review which entitles an unrepresented accused to automatic
protection without his request, to protect him against errors made by magistrates in the district
courts. Unrepresented accused are entitled to an automatic review should the court impose a
sentence that exceeds the limits prescribed in terms of section 302 (CPA). The sentence a fine
exceeding R6000 or imprisonment, for a period exceeding three (3) months) is automatically
reviewable. Such review must be referred to Provincial or Local Division of the High Court having
jurisdiction . For the purpose of automatic review, it is irrelevant whether a fine is coupled with an
alternative sentence of imprisonment, whether suspended or not, and whether the fine is paid or
not.
All the sentences of fines which are above the prescribed limit and imposed by magistrates of
district courts render the proceedings automatically reviewable and it is irrelevant whether the fine
is paid or not. Each sentence on each separate count must be considered a separate sentence. An
automatic review does not affect an accused’s right of appeal against such a sentence, whether
before or after confirmation thereof by the judge or court reviewing it. If an accused has appealed
against a conviction or sentence and has not abandoned the appeal, the automatic review of the
sentence is suspended and shall cease to apply concerning such accused when judgement is
given.
Given the fact that the sentence imposed in a form of a fine exceeded the amount prescribed in
terms of section 302 of Criminal Procedure Act, the sentence in the scenario provided is
automatically reviewable. In addition, the fact that the accused is unrepresented and he is
alternatively imprisoned for a period that exceed three (3) months, renders the sentence to be
reviewable.

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8.2 Assignment 02 – Semester 1

(2) Discuss the circumstances under which a plea may be changed from ‘guilty’ to ‘not guilty’.
(5)

Plea of guilty to not guilty

If the court at any stage of the proceedings under section 112 and before sentence is passed, is in
doubt whether the accused is ,-
(a) In law guilty of the offence to which he has pleaded guilty, or is satisfied that
(b) The accused does not admit an allegation in the charge or
(c) The accused has incorrectly admitted any such allegation or
(d) The accused has a valid defence to the charge or
(e) The court is of the opinion for any other reason that the accused’s plea of guilty should not stand,

The court must record a plea of not guilty and require the prosecutor to proceed with the prosecution.
The above apply to changes under statutory Law.
The change of plea under common law
An application to change a plea from ‘guilty’ to ‘not guilty’ may be brought after conviction but before
sentence.
In such a case there is an onus on the accused to show on a balance of probabilities that the plea
was not voluntarily made – De Bruin 1987 (4) SA 933 (C), Booysen 1988 (4) SA 801 (E). In Botha
1990 (1) SA 665 (T), however, it was held that at common law, an application for amendment of a
plea of guilty, brought before sentencing, does not shift the onus to the accused. The court is not
functus officio until the sentence has been imposed.
The accused is then only required to offer a reasonable explanation for having pleaded guilty.
In the case of an unrepresented accused, a change of plea should not succeed where there is no
indication that the accused did not understand the charge and where the court offers the accused
an opportunity to give an explanation by way of evidence which the accused, without any reason
for his refusal, declines to use.

10

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(3) Zelda stands trial in the High Court on a charge of murder. She is tried by a judge who is
assisted by two assessors. After closure of the case, it becomes clear that members of the
court do not agree on the finding. Discuss the legal principles involved. (15)

In a district court or regional court trial, the magistrate may, if he deems it expedient for the
administration of justice, before any evidence has been led or in considering a community-based
punishment in respect of any person who has been convicted of any offence , summon one or two
assessors to assist him or her at the proceedings.
In the regional court trial when the accused is charged with murder, it is peremptory that two
assessors assist the magistrate, unless the accused requests that the trial proceeds without
assessors. However, the magistrate may, if the accused waives such right of having assessors in
his trial, in his or her discretion summon one or two assessors to assist him.
Criminal cases in the High Court are tried either by a judge sitting alone or by a judge and one or two
assessors. The presiding judge generally has a discretion whether or not to sit with assessors.

For the Assessors to be appointed the judges must observe certain requirements like the experience
of the assessors in question. Assessors are mostly sourced from the ranks of retired magistrates,
practising advocates or attorneys, and persons whom the presiding judge believes have the
necessary experience in the administration of justice.
Assessors commence with their function after the accused has pleaded to the charge or after a plea
has been recorded.
Any finding on a question of the law is the responsibility of the presiding officer alone.
The decision or finding of the majority of the members of the court upon any question of fact, shall be
the decision or finding of the court, except when the presiding judge sits with only one assessor, in
which case the decision or finding of the judge shall, in the case of a difference of opinion, be the
decision or finding of the court.
If the presiding judge is of the opinion that it would be in the interests of the administration of justice
that the assessors assisting him or her not take part in any decision upon the question whether
evidence of a confession or other statement made by an accused is admissible as evidence against

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8.2 Assignment 02 – Semester 1

him or her, the judge alone must decide upon such question, and he or she may for this purposes sit
alone. The judge may in his or her discretion, together with the assessors determine the admissibility
of a confession or other statement made by the accused.
A judge presiding at criminal trial in the High Court must give the reasons for his or her decision
where he or she decides any question of law or whether any matter constitutes a question of law
or a question of fact. Where the judge sits with assessors and there is a difference of opinion upon
any question of fact or upon the question referred to in para (b), the judge shall give reasons for
the minority decision.

12

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Note: All references to “the Act” or to “the CPA” are to the Criminal Procedure Act 51 of 1977.
All references to “the CJA” are to the Child Justice Act 75 of 2008.

1 - TRUE
2 - FALSE

THIS ASSIGNMENT IS BASED ON THE STUDY GUIDE AND THE HANDBOOK.

1. A district court has the jurisdiction to try serious offences against the State.- TRUE
2. The function of further particulars is to define issues and not to enlarge them.-TRUE
3. The procedure in terms of which the defence asks questions to the state witnesses is
calledexamination-in-chief.-FALSE
4. The test for a discharge is based on the question whether there is sufficient evidence
upon which a reasonable man might convict.-TRUE
5. Generally, force must be used to effect arrest.FALSE
6. Common assault is a competent verdict on a charge of murder or attempted murder.-TRUE
7. A caution amounts to a sentence.- TRUE
8. A prosecutor may withdraw a case without the permission of the DPP.-TRUE
9. A convicted accused may appeal his or her conviction by a district court to a regional
court in the same division.-FALSE
10. Previous convictions are regarded as a mitigating factor in sentencing proceedings.-FALSE
11. The state is dominus litis and is therefore in control of the prosecution.-TRUE
12. The amount of the fine to be paid by the accused is left to the discretion of the prosecutor.-
TRUE
13. An appeal court has the general discretion to correct a sentence.-FALSE
14. A review is concerned with the validity of the proceedings.-TRUE
15. No review may be instituted at the instance of the prosecution.-FALSE

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SECOND SEMESTER

Assignment 1
Question 1

The prosecution must at a trial be able to furnish proof beyond a reasonable doubt.
Occasionally there might be good grounds for refusing to prosecute despite the fact
that a prima facie case exists. Discuss ‘the discretion of the prosecutor to prosecute’.
(10)

In principle, South Africa does not follow a system of compulsory prosecution. The
prosecutor has a duty to prosecute if there is a prima facie case and if there is no compelling
reason for a refusal to prosecute. In this context ‘prima facie case’ implies the following:
allegations, as supported by statements and real and documentary evidence available to the
prosecution are of such a nature that if proved in a court of law by the prosecution on the
basis of admissible evidence, the court should convict. Sometimes it is asked: Are there
reasonable prospects of success with a prosecution? The prosecution, it has been held,
does not have to ascertain whether there is a defence, but whether there is a reasonable
and probable cause for prosecution – see generally Beckenstrater v Rottcher and
Theunissen 1955 (1) SA 129 (A) at 137 and Lubaxa 2001 (2) SACR 703 (SCA) at 707i.
The prosecution must at the trial be able to furnish proof beyond a reasonable doubt.

Occasionally there might be good grounds for refusing to prosecute despite the fact that a
prima facie case exists. Such grounds may be the triviality of the offence; the advancedage
or very young age of an accused; where a plea bargain was struck between the prosecution
and the defence; the personal circumstances of an accused, for example, a father who has
through his negligent driving caused the death of his young child.There is a rule of practice in
terms of which an accused, or his legal representative acting upon his instructions, may take
written representations to a DPP or the local publicprosecutor to decline to prosecute.

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In exercising his discretion, the prosecutor must respect the individual’s rights not to be
harassed by a prosecution which has no reasonable prospects of success. The fact thatthe
prosecutor doubts the strength of the state’s case is no good ground for fixing an admission
of guilt fine in a summons in the hope that the accused might pay the admission of guilty fine
and thereby relieve the state of burden of proving its case. This adjoin the fact that the
discretion of Prosecution to prosecute relies on evidence available to prosecutorand regard
must be taken for the rights of the accused.

QUESTION 1

X and Y commit an armed robbery at a commercial bank. They shoot a security guard,
P. When P falls to the ground, Y kicks him in the face, takes his wallet from his pocket
along with his weapon and flees together with X. P dies and X is caught and brought
to court on charges of (1) robbery, (2) murder, (3) theft (4) assault and (5) the statutory
crime of pointing a firearm. X pleads not guilty and objects to the charges, which he
claims amount to a splitting of charges. The court rejects X’s objection. The
prosecutor asks that Y, who has been arrested in the interim, be joined on the same
charges. X and Y are found guilty on all charges.

(a) Discuss whether the joinder of Y on all charges is irregular. (5)

The legal position in brief:

• The accused may be charged with having committed all or any of the offences, and any
number of offences may be tried at once.
• The “duplication of convictions” rule is aimed at preventing an accused from being
convicted and sentenced more than once for the same culpable fact.
• “It is a fundamental principle of our law that an accused should not be convicted and
sentenced in respect of two crimes when he or she has committed only one offence. It forms
part of the right to a fair trial which is enshrined in the Constitution”– Whitehead 2008(1)
SACR 431 (SCA).
• The prosecutor may bring as many charges as he thinks fit. Charges must be relevant to
the facts. “The State is entitled to duplicate charges” – Whitehead.
• In Grobler 1966 (1) SA 507 (A), (1)it was held that section 83 deals with the procedure that

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may be adopted in the formulation of charges and not with the statutory and common-law
principles relating to conviction and punishment; the real prejudice lies in multiple convictions
and not so much in multiple charges.
• In Whitehead 2008 (1) SACR 431 (SCA) [par. 35–36] the court said the following: There is
no infallible formula to determine whether, in any particular case, there has been a
duplication of convictions. The various tests that have been formulated by our courts arenot
rules of law, nor are they exhaustive. They are simply useful practical guides and in the
ultimate instance, if these tests fail to provide a satisfactory answer, the matter is correctly
left to the common sense, wisdom, experience and sense of fairness of the court. It has
always been accepted that a logical point of departure is to consider the definitions of those
offences in regard to which a possible duplication might have taken place.

In terms of section 156 of Criminal Procedure Act, whenever it is alleged in a charge that
two or more persons have committed separate offences at the same place and time, or at
about the same time, and the prosecutor informs the court that any evidence which is in his
opinion admissible at the trial of one of those persons is in his opinion also admissible at the
trial of the person or persons, such persons may be tried jointly for those offences on that
charge.(1) If there is evidence in the opinion of the prosecutor that it is admissible in case of
X and Y, both of them may be tried jointly for those offences on that charge.

Further, thus persons who through participation in the same transaction commit different
offences may be jointly charged and tried, for example where a man procures and furnishes
premises in which women carry on prostitution, on the proceeds whereof he lives,he and they
may be charged and tried together, he with living on the proceeds of prostitution,and they with
carrying on the practice. Prior to the enactment of s 156 it was held that where a passenger
was killed as a result of a collision between two motor cars, there were two separate offences
and that joinder of the two drivers was irregular, this was held in Meyer1948(3) SA 144 (T).
Therefore section 156 leaves little doubt that such joinder would no longer be irregular. The
court must satisfy itself that the prosecutor’s opinion is bona fide and based on a reasonable
interpretation of the rules of evidence. To its end Y and X may be arraigned in the same
proceeding.

The court has the discretion to order a separation of trials on its own account or upon
application by the accused.

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The following points are important in respect of joinder or separation of trials:

1. The basic principle on which separation of trials may be ordered is founded on

whether one or more of the accused would be prejudiced if they were tried together.
The mere possibility of prejudice is not sufficient to justify an order of separation. It
must be evident that the joint trial would probably be prejudicial to the accused
(Nzunza).

2. The fact that evidence is led at a joint trial that is admissible against one accused,
but inadmissible against another and may implicate that other, is an important
consideration in an application for a separation of trials, but not the only one. South
African courts adopt the position that they can distinguish between evidence that is
admissible against one accused, but inadmissible against another.

3. Where the accused impute blame to each other, it will often serve the ends of justice
to try them together so that the court can hear all the evidence and establish the
different degrees of guilty better.

4. If one of two or more co-accused have pleaded guilty, it is essential to separate the

trials and conclude the trials of those who have pleaded guilty first.

5. It can be stated as a general rule that the right of the accused to call a co-accused
as a witness does not outweigh the right of the co-accused not to incriminate
himself.

Y must therefore prove that he suffered prejudice as a result of joinder and possibly that the
court would have reached a different decision if he had not been joined with X.

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(b) Discuss, and then test with reference to relevant legal principles, whether the
conviction of X and Y on all charges amounts to an irregular duplication of
conviction. (10)

The rule against the duplication of convictions is to be approached on the basis of

the following tests, which are provided for in the different categories given in the
handbook:

(1) A single act constitutes more than one statutory offence, or

statutoryand common-law offences.

(2) A single act constitutes more than one offence at common law. In
respect of both (1) and (2), section 336 provides that where an act (or omission)
constitutes an offence under two or more statutory provisions, or is an offence
against a statutory provision and the common law, the perpetrator may be
prosecuted and punished under either the statutory provision or the common law.
The perpetrator may not, however, be liable to more than one punishment for the
act or omission constituting the offence.

Application to the facts: (additional points may be given for application to the
facts)

The single act in the scenario (robbery) constitutes more than one statutory offence,
or statutory and common-law offences (murder, robbery and pointing a firearm; the
latter also constitutes assault). The question we must answer here is this: Do the
alleged offences of robbery and pointing a firearm constitute undue duplication in
terms of section 336? Yes, they do. Obviously, if we regard the charge of pointing
a firearm as constituting the assault charge, then section 336 indicates a duplication
between the charges of pointing a firearm, murder and robbery – Wegener case. If
the pointing of a firearm is seen solely as a statutory offence and part of the bank
robbery, there is duplication in terms of section 336.

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(3) More than one act of the same nature, or more or less of the same nature.
Where more than one act of the same nature, or more or less of the same
nature,are committed practically simultaneously, this constitutes more than
one offence (whether statutory or common-law offences). (1) When the totality
of the accused’scriminal conduct can be accommodated in a single charge,
the accused may not beconvicted of multiple charges. (1)

Here the following tests are applied by the courts:

(i) Were the acts done with a single intent and were they part of one continuous
transaction?
(ii) Does the evidence required to prove one charge necessarily involve proof of
the other?
The tests are in the alternative: They need not both be answered in the affirmative.If
the answer to only one of the questions is in the affirmative, it is said to be an
improper splitting/duplication. Obviously, the courts must apply common senseas
well.

In Grobler, the court stated the following: (additional marks may be given for this
discussion)

In so far as the “single intent” and “continuous transaction” test is concerned, the
distinction between motive and intent and the different intents inherent in different
offences must not be overlooked ... If a person breaks into a room intending to steal
from the occupiers and does so at one and the same time it might be said thatin
substance he committed only one offence. Assuming he enters and steals thegoods
of the first person who is asleep and then proceeds to the next person who wakes
up after his property has been stolen. In order to silence this person the accused
renders him unconscious with a blow to the head. The third person is awakened,
and the accused then forcibly deprives him of his goods before departing. Common
sense suggests that the accused may properly be convicted ofhousebreaking with
intent to steal and theft, assault and robbery.

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Application to the single-intent test: (Additional marks may be given here)

The acts in the scenario, excluding the kicking of P and the theft of the purse, which
happened as afterthoughts after the robbery, are all closely related. The single intent
both X and Y had was to rob the bank, and the murder happened as a foreseeable
act. In other words, it was foreseeable that where guns are involved,someone could
be killed. As stated above, if we regard the charges of murder, robbery and pointing
a firearm as offences committed with a single intention, the facts point to a
duplication between the charges of pointing a firearm, murder and robbery, and X
and Y may be convicted only of murder or robbery.

However, the offences of murder and robbery are mutually exclusive when
The following test is applied:

The evidence test:

If the evidence necessary to prove one criminal act necessarily involves evidence of
another criminal act, those two are to be considered as one transaction. But if the
evidence necessary to establish one criminal act is complete without the other
criminal act being brought in at all, then the two are separate crimes (R v Van der
Merwe 1921 TPD 1 at 5, and approved in Whitehead).

Application to the evidence test:

It would not be a duplication of convictions if the evidence test were applied because
the evidence on the robbery charge does not necessarily prove the murder charge,
as the elements of the offences differ and the one does not prove the other – Benjamin
and Moloto. The evidence on the robbery does prove the charge of pointing a firearm.

(4) Conduct of the perpetrator is spread over a long period. This category

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is not relevant in respect of the question.

On joinder, see section 157(1). Has any evidence been led before the
joining of accused?
If the answer is in the affirmative, then X and Y may not be joined.

In terms of section 155(1), any number of participants in the same offence may be tried
together and any number of accessories after the same fact may be tried together or any
number of participants in the same offence and any number of accessories after that fact
may be tried together, and each such participant and each such accessory may be charged
at such trial with the relevant substantive offence alleged against him.

X and Y participated in the same offence at the same time and place . The state must inform
the court that evidence admissible at the trial of one accused will, in his opinion be admissible
at the trial of the other accused. It cannot be said that their convictions amount to an irregular
duplication of conviction.

Section 83 provides that if by reason of any uncertainty as to the facts which can be proved,
or for any other reason, it is doubtful which of several offences is constituted by the facts
which can be proved, the accused may be charged with having committed all or any of those

offences and any number of such charges may be tried at once, or the accused may be
charged in the alternative with committed any number of those offences.

Question 2

While performing his duties, Inspector X stumbles upon information from an

informant that Y is in possession of a stolen vehicle. X acts on the information and
immediately proceeds to Y’s house. Upon his arrival, he notices the vehicle described
by the informant parked under the carport in the yard. X informs Y about the purpose
of his visit, namely, to investigate the presence of an allegedly stolen vehicle on Y’s
premises. He thereupon requests Y’s permission to inspect the vehicle. Y accedes to

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the request. X opens the car bonnet of the said vehicle and proceeds to inspect the
engine. He notices, while looking over the engine, that the engine number has been
filed off. He thereupon decides to impound the vehicle for further investigation.

Answer the following questions with specific reference to Ngqukumba v Minister of

Safety and Security 2014 (2) SACR 325 (CC) (hereinafter Ngqukumba) and the relevant
Constitutional and legislative provisions:

Discuss

(a) The relevant legislative and Constitutional provisions as they relate to X in the
exercise of his duties regarding the actions he is undertaking – in other words,
the provisions that regulate the exercise of his powers as a policeofficer.
(10)

In terms of s 205 (3) of the Constitution, the objects of the police service are to prevent,
combat and investigate crime, to maintain public order, to protect and secure the inhabitants
of the Republic and their property, and to uphold and enforce the law.

In the same the South African Police Act 68 of 1995 governs the duties and functions of
police officers. Section 13 (3) enumerates the functions of the police as including the duty to
“prevent, combat and investigate crime, to maintain public order, to protect and secure the
inhabitants of the Republic and their property, and to uphold and enforce the law.” In the
exercise of his or her official duty, a member is also required to act in manner which is
“reasonable”, in the circumstances.

The police officers who acts without a warrant must act within the ambit of the law.

The formal consequences of unlawful action by the police are regulated by s 35(5) of the
Constitution- the so called exclusionary rule.

In terms of this constitutional provision ,evidence obtained in a manner that violates any right
in the bill of rights must be excluded if the admission of such evidence would render the trial
unfair, or otherwise be detrimental to the administration of justice.

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The Constitutional Court in Ngqukumba found in favour of the applicant, averring that the
seizure of the appellant’s vehicle had in fact, been unlawful.

The Court held [para 15], that the applicant had been under peaceful and undisturbed
possession of the vehicle and was, therefore, entitled to a spoliation order in his favour. The
Court rejected the SCA’s assumption that a vehicle whose engine had been tampered with
could be put into the category other unlawful possessions. According to the Court, the
possession of a vehicle whose engine had been tampered with is only unlawful if it is “without
lawful cause”.Such a conclusion [para 21] can only be made upon interrogation of the merits,
which are the subject of a subsequent criminal trial. A motor vehicle is fundamentallyan object
which may be possessed lawfully.To this end [para 15], it is possible for an individual to
possess a vehicle whose engine was tampered with if there is lawful cause for its possession.
Thus, the SCA’s example regarding the lawfulness of the possession of heroin [and an
unlawful firearm] was held [para 15] to be inapposite and therefore,misleading.

(b) In view of the facts above, the relevant and applicable provisions of the
Criminal Procedure Act (CPA) 51 of 1977 regarding the search and subsequent
impounding of the vehicle by X. (10)

In terms of s 22 of the CPA,

“A police official may without a search warrant search any person or container or premises
for the purpose of seizing any article referred to in section 20-
(aa) if the person concerned consents to the search for and the seizure of the article in
question, or if the person who may consent to the search of the container or premises
consents to such search and the seizure of the article in question; or
(bb) if he on reasonable grounds believes-
(i) that a search warrant will be issued to him under paragraph (a) of section 21 (1) if he
applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object of the search.”
In terms of s 20 of the CPA, the following articles are susceptible to seizure by the police:
(i) articles which are concerned in or are on reasonable grounds believed to be concerned
in the commission or suspected commission of an offence, whether within the Republic or

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elsewhere;
(ii) articles which may afford evidence of the commission or suspected commission of an
offence, whether within the Republic or elsewhere; or
(iii) articles which are intended to be used or are on reasonable grounds believed to be
intended to be used in the commission of an offence.

(c) Briefly discuss the ambit and content of a preservation order. (5)

It is a court injunction/ order which prohibits a person from dealing in any manner with
property (1) which was allegedly involved in the commission of an offence. Property only
qualifies as such if its use in the commission of the offence was “real and substantial”. (The
fact that a crime was committed at a particular place does not automatically qualify suchplace
as an essential element of the offence.

It’s an order that may be granted when the applicant alleges that ,in terms of the Prevention
of Organized Crimes Act someone has acquired certain properties unlawfully, then the NPA

may approach the High Court on exparte application to prevent the holder of the said
properties from disposing or alienating the said properties until such time that the final order
is granted or a determination has been made regarding the property.

Assignment 2

QUESTION 1.

An inexperienced prosecutor in the lower court formulates a murder charge as

follows: ‘The accused is guilty of a crime in that the accused did intentionally and
unlawfully cause the death of a human being’. In terms of s 84(1), and notwithstanding
ss 86(1) and 88: is the charge formulated in sufficient detail? (10)

Section 84(1) sets out the requirements with which a charge should comply. In short, this
section provides that the relevant offence should be set forth in the charge in such a manner
that the accused is sufficiently informed of the nature of the charge brought against him.
Section 35(3)(a) stipulates that the accused must be informed of the charge with sufficient

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detail to answer it. In order to fairly state that an accused is ‘sufficiently informed’ all of the
elements of the offence should be mentioned in the charge, or to put it differently, the charge
should disclose an offence. Section 84(1) specifically requires that sufficient particularsas
to the time and place (unless such are not an essential element of the charge) at whichthe
offence is alleged to have been committed, the person (if any) against whom and/or the
property (if any) in respect of which the offence is alleged to have been committed, should
be furnished in the charge.
Compliance with the foregoing requirements of a charge and the failure in the charge drafted
by the prosecutor, can be practically demonstrated by referring to a correctly formulated
charge of murder.
Such a charge normally reads as follows:

‘That the accused is guilty of the crime of murder in that on or about 1 August 2012 and at
or near 101 Mashoba Street, Sunnyside in the district of Pretoria, the accused did
intentionally and unlawfully kill John Smith, an adult male.’

Particulars furnished, are:

1 The name of the offence for which the accused is indicted (murder);
2 All the elements of the crime murder (intention, unlawfulness, killing of another human
being);
3 The time, and place where the offence was allegedly committed; and4
The person against whom the offence was allegedly committed.

Considering the facts provided and the requirements of s 84(1), the charge stipulated
above is insufficient in that if fails to mention the time and place of offence and the person
against whom the crime was committed. The Rautenbach decision determined that charge
sheets should be kept as simple as possible, but should at least be intelligible. The Pillay
decision further stipulates that the charge should at the very least disclose an offence,
which the one stipulated, succeeds in doing but not in sufficient detail, so as to satisfy s
35(3)(a) of the Constitution and s 84(1) of the CPA. Ex parte the Minister of Justice: In Re
R v Masow and Another 1940 AD stipulates that a charge should first disclose an offence
and secondly contain sufficient detail as to time, place, person and property. The fact that
ss 86(1) and 88 allow for amendment is insufficient excuse for vague drafting of charge
sheets as confirmed in Wannenburg 2007 (1) SACR 27 (C) and

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Tshali 2007 (2) SACR 23 (C). (1)

QUESTION 1.2

(1) John, a police officer, is on duty. He notices two persons standing on a street
corner glancing nervously about them all the time. John notices one of the persons
passing an amount of money to the other. The other person counts the money,
takes out small package from his pocket and hands it to the first person. The latter
opens the package, places the contents on piece of glass, sniffs it and nods to the
other person. John walks over to them. On seeing him, they start running away
with John in pursuit. They run into a block of flats, enter a specific flat, close the
door and lock it. What can John do? Discuss in detail.(10)

{When you answer this question, you must discuss the subjects covered under the
following headings in your handbook: paragraph 2 (objects that can be
confiscated); paragraph 3 (search warrants to a limited extent); paragraphs 4.2;
4.4±5; 5; 6 and 7. In this case it can be said that X had reason to believe that he had
observed an unlawful transaction in drugs, that he was therefore justified in
resorting to what is known as the no-knock clause and searching the flat and the
persons who had entered it for the package and the money. Remember to refer
to decided cases in your answer, and also to indicate that the requirement of
propriety must be met. You should also indicate why X did not first have to apply
for a warrant in this case.}

The State may, in accordance with the provisions of the CPA, seize anything (a) which is
concerned in or is on reasonable grounds believed to be concerned in the commission or
suspected commission of an offence, whether within the Republic or elsewhere;
(b) which may afford evidence of the commission or suspected commission of an offence,
whether within the Republic or elsewhere; or (c) which is intended to be used or is on
reasonable grounds believed to be intended to be used in the commission of an offence.
However, the documents of privilege do not fall under the category of articles that can be
seized during raids, Prinsloo v Newman 1975 (1) SA 481 (A). A police official may without a
search warrant search any person or container or premises for the purpose of seizing any
article (a) if the person concerned consents to the search for and the seizureof the article in

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question, or if the person who may consent to the search of the container or premises
consents to such search and the seizure of the article in question; or (b) if he on reasonable
grounds believes - (i) that a search warrant will be issued to him if he appliesfor such warrant;
and (ii) that the delay in obtaining such warrant would defeat the objectof the search. Section
11 of the Drugs and Drug Trafficking Act 140 of 1992 authorised the search, seizure and
confiscation of article concerned in drug trafficking. The HighCourt in Kunjana v Minister of
Police [2015] ZAWCHC 198 declared the section to be unconstitutional subject to the
Constitutional Court’s confirmation. The Con Court held inMinister of Police v Kunjana [2016]
ZACC 21 that: “I agree with the applicants’ contention that the impugned provisions leave
police officials without sufficient guidelines with which toconduct the inspection within legal
limits. A warrantless search procedure implies the absence of a warrant providing guidance
as to the time, place and scope of a search and it

is therefore desirable that the statutory provision authorising a warrantless search procedure
be crafted so as to limit the possibility of a greater limitation of the right to privacy than is
necessitated by the circumstances, which the warrant requirement would otherwise do”. (1)
A warrantless search should not be a norm of criminal procedure - Estate Agency Affairs
Board v Auction Alliance (Pty) Ltd 2014 (3) SA 106 (CC). The Con Court in Gaertner v
Minister of Finance 2014 (1) SA 442 (CC) para 69 held that: “A warrant is not a mere
formality. It is a mechanism employed to balance an individual’s right to privacy with the
public interest in compliance with and enforcement of regulatory provisions. A warrant
guarantees that the state must be able, prior to an intrusion, to justify and support intrusions
upon individuals’ privacy under oath before a judicial officer. Further, it governs the time,
place and scope of the search. This softens the intrusion on the right to privacy, guides the
conduct of the inspection, and informs the individual of the legality and limits of the search.
Our history provides evidence of the need to adhere strictly to the warrant requirement
unless there are clear and justifiable reasons for deviation”.

1. Section 48 of the CPA authorizes a peace officer or a private person who is authorized by
law to arrest another in respect of any offence to enter such premises by force in orderto
effect an arrest.

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The requirements which have to be satisfied by the arrestor are that.

1. The arrestor must know or reasonably suspect such other person is on the premises.
2. The arrestor must first audibly demand entry into such premises and state the purpose
for which he seeks entry and fails to gain entry before using force to enter the premises.
3. The belief of the police official must be objectively justified on the facts.

Students after ventilating the facts above may arrive at their own conclusion.

Question 1.3

1. Discuss the basic differences between the appeal and review procedure in
circumstances where constitutional issues are not exclusively involve(5)

Review

It is aimed at reviewing the proceedings , to ascertain if there was procedural irregularities.

Irregularities could be, e.g absence of jurisdiction of the Court, corruption etc.

Review is brought from a lower court to the Higher Court

Appeal.
It is aimed at setting aside the conviction or reduction of the sentence.

Appeal it could be against the facts or the

legalquestion.

The records of the proceedings are the crux of appeal.

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QUESTION 2.1
Discuss the requirements of Plea and sentence agreement in terms of section 105A.
(5)

1. The plea and sentence agreement must be written.

2. The accused must be legally represented.
3. The sole purpose is for the accused to plead guilty.
4. The parties may agree on a sentence.
5. The complainant if any, or if deceased his or her family must be consulted.
6. The plea and sentence agreement must be formal in nature.
7. The parties may agree to the postponement of the sentence.
8. The agreement must state that the accused was advised that he has a right to be
presumed innocent until proven guilty beyond reasonable doubt.
9. That he has a right to remain silent and not to testify during the proceedings
10. That he has a right not to be compelled to give self-incriminating evidence
11. The agreement must be signed by the prosecutor, the accused and his legal
representative.
12. The agreement must state fully the terms of the agreement ,the substantial facts of
the matter , all other facts relevant to the sentence agreement and any admissions
made by the accused.
13. The court shall not participate in the negotiations.
14. The accused must confirm the contents of the agreement before the court.
15. The accused must confirm the sentence before the court.

QUESTION 2.2
Discuss plea of guilty in terms of section 112 of Criminal procedure Act. (10)

Where accused pleads guilty at his or her trial, there is no issue between the accused andthe
state and he or she may be convicted and sentenced based on that plea.
Prior to the coming in to operation of the criminal Procedure Act of 1977, the accused who
pleaded guilty before the High Court to any offence, other than murder, could be convicted
without any evidence being led.
A lower court on the other hand, based on the fact that it did not have the preparatory

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examination record, unlike the High Court, could generally only convict an accused who
pleaded guilty where there was proof that, in the form of evidence, that the offence had been
committed- though it was not necessary to show that it was the accused who had committed
the offence. The latter provision was commonly known as the evidence aliunde rule.
The above procedures were replaced by section 112 of the 1977 Act, which abolishedthe
distinctions between the proceedings in the High Court and the lower court and the aliunde
rule. Section 112(1) lays down two distinct procedures where an accused at a summary
trial inany court pleads guilty to the offence charged,or to an offence of which he or she
maybe convicted on the charge, and the prosecutor accepts such plea, one for serious
offences and one for less serious offences.
The student may discuss the provisions of section 112(1) to (3) relating to the
procedure to be followed when – relating the offences and their sentences. E.g if the
offence does not merit the imprisonment, etc.

The following must be observed for a successful guilty plea to take place:

1. The accused must plead guilty voluntarily.

2. In sound and sober sense
3. Without being unduly influencedThe accused may tender a guilty plea without
representation.
4. The presiding officer must advice the accused that he has a right to remain silentand
not to testify during the proceedings.
5. That he has a right to be presumed innocent until proven guilty beyond reasonable
doubt
6. That he has a right not to be compelled to give self-incriminating evidence.
7. If unrepresented, that he has a right to appoint a lawyer of his choice or a state
lawyer.
8. The accused must be convicted on the strength of his plea of guilty.

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QUESTION 2.3

The right to a fair trial is expressly mentioned in the Bill of Rights as one of the most
important rights of the Constitution. To this extent, the presiding officer must conduct
the proceedings with the utmost courtesy and fairness, whilst also ensuring that each
party to the proceedings is given equal hearing; and that decisions are only made on
the basis of the evidence presented in court, in terms of the applicable rules. Discuss
this statement critically

An accused ‘s right to a fair trial under section 35(3) of the Constitution embraces a concept
of substantive fairness which is not to be equated with what might have passed muster in
our criminal courts before the Constitution come into force’(Zuma 1995(1)SACR 568(CC).
The right to a fair trial embraces more than what is contained in the list of specific rights
identified in section 35(3)(a)-(o) of the Constitution (Veldman v Director of Public
Prosecutions,(1) WLD 2006(2) SACR 319(CC) at [22]-[23]. The section 35(3) rights which
surface most pertinently in the course of the trial are the right to be presumed innocent
(section 35(3)(h), the right to adduce and challenge evidence(35(3)(i) and the right not testify
during the proceedings(section 35(3)(h).

The words ‘which includes the right’ preceding the listing of specific rights in
paragraphs(a)to(o) in section 35(3) indicate that such specification is not exhaustive of what
the right to a fair trial comprises (Dzukuda 2000(2) SACR 443(CC)at[9]. It was also held in
Baloyi 2000(1)SACR 81(CC)at[27] that no one may be convicted without a fair

trial, it was also held that the right to a fair trial of the Constitution includes the right to a
prosecutor that acts and is perceived to act without fear, favour or prejudice. Trial Fairnessis
not confined to the position of the accused, but extends to society as a whole, precisely
because society has a real interest in the outcome of a case this was held in Sonday 1995
(1) SA 497(C) 507.

All the judicial duties that have to be performed in respect of an unrepresented accused in
order to ensure a fair trial were set out and confirmed in Mofokeng 2013(1)SACR 143(FB).
However, the Supreme Court of Appeal has warned that a trial court should not give
assistance to an accused to the point of unfairly disadvantaging the prosecution.The rightto a

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fair trial demands that there should be informed participation by the unrepresented accused,
a Court is therefore required to explain all procedural rights and options to an unrepresented
accused and to do so at every critical stage. To this end , the Constitutionmandated the Courts
to inform promptly of the accused ‘s right to have a legal representativeof their choice, it has
to be placed on record that the accused made a choice which could bedetrimental to him
even after he was advised.

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2019 – SEMESTER 1 ASSIGNMENT QUESTIONS WITH ANSWERS

Question 1
X and Y are South African citizens who regularly visit the Republic of Botswana, where they
have relatives. During one of their visits to Botswana, they allegedly commit the crime of
murder, which is punishable by death upon conviction in the courts of the Republic of
Botswana. They both escape back to the Republic of South Africa, where they seek refuge
against arrest from the Botswana authorities. The Justice Minister of Botswana subsequently
writes to his South African counterpart, requesting the extradition of X and Y, so that they
might stand trial in Botswana for the alleged crime.

(a) According to the hierarchy of courts in South Africa, which court is empowered to
adjudicate over the extradition proceedings. (2)
District (Magistrate’s) Court
(b) The Republics of Botswana and South Africa have in place an extradition treaty, in terms
of which suspects may be extradited either way upon request. Discuss the general
corresponding principles which usually accompany extradition agreements. (5)
• The general corresponding principles which usually accompany extradition
agreements:

• The crime has to be punishable as such in both countries - the so-

called principle of double criminality.

• Extradition is normally not granted for crimes of a political nature.

• The perpetrator may only be charged, in the receiving country, of

the offence with which he was originally charged in the sending
country, unless the sending country agrees to the adding of a
further charge.

• Extradition may be refused in circumstances where the death

penalty may be imposed in terms of the law of the requesting state
and if the law of the sending state does provide for the death
penalty for the commission of the particular crime.

• An extradition agreement usually contains a ne bis in idem rule

which corresponds with pleas of autrefois acquit and autrefois
convict. (5)

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(C) Discuss critically, based on the principles set out in (b) above, whether the South
African authorities can
be compelled to extradite X and Y to Botswana.

The crime of murder is punishable in both Botswana and South Africa as a

crime. Thus, the extradition rules set out above necessarily sanction the
extradition to Botswana. However, according to the principles set out in
(b), a person may not be extradited if the death penalty in respect of the
offence in question might be imposed in the sending country. In this
respect, therefore, the South African authorities are not compelled to
extradite X and Y because the death penalty is a competent sentence in
Botswana.

The facts set out in the question do not clarify whether the crime in
question was committed in pursuance of a political goal. Thus, if it is
established that the crime is political in nature, the South African
authorities would not be compelled to extradite the accused.
(8)

Question 2

On Friday morning, 9h00 X and Y steal a motor vehicle, namely, a Jeep SUV belonging to Z in
Lydenburg, Mpumalanga. They drive onto the N4 highway and proceed in a westerly direction. A
few minutes after making off with the vehicle, they notice Z’s three year old baby P, strapped in
the back seat of the car. They decide to drive away with the baby regardless. Meanwhile, the
police have been alerted to the incident, and are hot on the heels of the assailants. Inspector
Speedy Gonzalez and Sergeant Shoot First are the two policemen in pursuit of the suspects.
Segeant Shoot First puts on the siren. He warns the suspects, through the loud hailer, to stop by
the vehicle by the roadside, or risk being shot at. The suspects ignore the warnings, whereupon
Sergeant Shoot First produces an R4 assault rifle and fires shots at the fleeing SUV. One of the
fatal shots hits Y, the driver. Consequently, the SUV overturns, and both the suspects are
arrested. Miraculously, X and P escape the ensuing accident with minor injuries. However, Y
sustains serious injuries and is immediately airlifted to hospital after the arrest. X and Y are
subsequently arrested in Mamelodi, Gauteng, where the SUV overturned.

(1) S, the prosecutor at the Mamelodi Magistrate’s Court is not certain whether or not she has
the jurisdiction in respect of the offence(s), since the offences were allegedly committed in a
different province, namely, Mpumalanga. Discuss the applicable jurisdictional principles
where jurisdictional uncertainty occurs, as seem to be the case in point.

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The applicable jurisdictional principles:

• Where it is uncertain in which of several jurisdictions the offence was

committed, it may be tried in any of such jurisdictions;

• A person charged with an offence may be tried in any district or regional

court wherein an element of the offence took place;

• A person charged with theft of property or an offence involving the

possession or receipt of property, may be charged in any district or regional
court wherein he had part of the property in his possession;

• A person charged with kidnapping, child-stealing or abduction may be tried

by any district or regional court through and in which conveyed or
concealed or detained the person kidnapped, stolen or abducted;

• Where a court is granted jurisdiction over an offence through any special

statutory provision, such court is not deprived of jurisdiction by any of the
provisions of s 90 of the Magistrates Court Act;

• Where an accused is alleged to have committed various offences within

different jurisdictional district or regional divisions of a particular Director
of Public Prosecutions (DPP), the latter may, in writing direct that criminal
proceedings be commenced in a district or regional court within his area of
jurisdiction, as if the offence had been committed in the jurisdictional area
of such court;

• The accused may, upon written order of the DPP, be charged in a district or
regional court of the province in which such DPP holds office. Such a decision
is usually taken for reasons of expediency, where for example, a number of
accused are involved in a criminal case, or with a view to avoiding excessive
inconvenience, or the disturbance of the public order;

• In terms of s 110 of the CPA, if a person is charged before the wrong court,
the latter court acquires territorial jurisdiction if the accused fails to object
in good time;

• A magistrate’s court may be awarded jurisdiction by virtue of specific

statutory provision. Hence, s 18 of the Aviation Act of 1962 provides that
any offence committed on a South African aircraft is deemed, for the
purposes of criminal jurisdiction, is deemed to have been committed in any
place where the accused happens to be; and

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(NDPP) has unlimited discretion to order a trial to take place in the

jurisdictional area of any other DPP.(10)

(2) Upon the clarification of jurisdiction, which court in terms of hierarchy of courts in the
South African landscape is likely to enjoy jurisdiction in respect of the offences in
question. (2)
Magistrate (District) Court.

(3) Which offences, in your view, may be preferred in respect of X and Y. (2)
(1) The suspects may be charged with:

(i) Theft

(ii)Kidnapping
(4) X appears in the Mamelodi Magistrate’s Court to face charges on Wednesday of the
following week. Discuss the correctness of the procedure in terms of X’s appearance
in terms the 48-hour rule. (4)
An arrested person must, after arrest, be brought to a police station at the earliest
possible convenience. The purpose of bringing an arrestee to a police station is to
ensure that he or she is brought into the custody of the South African Police “as
soon as possible”, and that he or she is detained by the police for a period not
exceeding 48-hours. Consequently, the accused may not be detained for longer than
48 hours, unless he or she is brought before a lower court.

If an arrestee is not released because no charges are brought against him or

her, he or she may not be detained for longer than 48 hours, unless he or she
is brought before a lower court. This process is called the “first appearance”.
At the first appearance the accused may be remanded in custody pending
further investigation or for his trial, or be released on bail or warning.

The expiry of 48 hours is calculated as follows:

As a general rule, if the 48-hour period expires on any court day before 4
pm (16:00), then the said period is deemed to expire at 4 pm (16:00) on
such court day. However, if the 48-hour period expires on a day which is not
a court day, or on any court day after 4 pm (16:00), then the said period is
deemed to expire at 4 pm (16:00) on the next court day (this means that if a
person is arrested on a Wednesday evening, the 48-hour period is deemed
to expire the next Monday at 4 pm (16:00) (s 50 (1) (d).

For the purposes of s 50, a “court day” means a day on which the court in
question normally sits as a court – s 50(2). The police may release Want
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arrestees even before the 48-hour period lapses.

NB: please note that we disagree with the assertion as set out in the handbook Criminal
Procedure Handbook 12th edition (2016) by Joubert JJ (ed) (See p. 147 par 5.5). We are of
the view that the accurate calculus hereof is that if the accused is arrested on Wednesday
evening, the period of 48- hours must, in fact, expire on Friday at 16:00.

As for the case in point, the facts do not necessarily point out the precise
time during which X was arrested or brought to court. The only available
information is the assertion that X was arrested on Wednesday. It may, for
current purposes, be assumed that the accused was arrested two or three
hours after the commission of the offences, or much later. In either case, the
48-hour period must expire on Friday at 16:00.

Due to the discrepancy in the handbook, answers which allude to either Monday,
Tuesday or Wednesday will be marked liberally.

(5) Discuss the applicability of the 48-hour rule to Y’s circumstances, who is still
hospitalised when X appears in court. (5)
Where the 48-hour period is deemed to expire at a time when the arrestee cannot,
because of his or her physical illness or other physical condition, be brought before a
court, the court may, upon application by the prosecutor, order that the arrestee be
detained at a place specified by the court (e.g. a hospital) for such period as the court
may deem necessary so that he or she may recuperate in order to prevent abuse.
The application by the prosecutor must set out the circumstances relating to the
illness or other condition, and must be supported by a certificate from a medical
practitioner.

In practice, the prosecutor via the investigating officer, presents a medical

certificate to court, which sets out the physical condition of the accused. In
other words, the medical certificate appears “instead” of the accused. On
each occasion in respect of which the accused is unable to appear, a fresh
medical certificate is presented, until the accused is subsequently able to
appear.

Y must then be brought to court in terms of the rules set out above.

(6) After the recuperation of Y, he is subsequently brought to court to face charges. Is it

procedurally permissible to “join” X and Y for trial purposes? Briefly discuss this
question with specific reference to the provisions of s 155 of the CPA. (2)

In terms of s 155 of the CPA “any number of participants in the same offence” may be
charged tried together. Thus, there is no impediment in law, for X and Y to be tried
together; just as long as the trial has not yet commenced.
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(7) Y is not happy with the manner of his arrest. He reckons that Sergeant Shoot First
“used excessive force” during the arrest when he fired the fatal shots. Discuss the use
of force to effect arrest, with specific reference to facts provided above. (15)

(2) Arrest represents one of the means of bringing an accused before court. By
its very nature, arrest is the most extreme means of bringing an accused
before the courts, and should, therefore, be undertaken with
circumspection.

In terms of the Constitution (s 205) the objects of law-enforcement are to

prevent, combat and investigate crime, to maintain public order, to protect
and secure the inhabitants of the Republic and their property, and to uphold
and enforce the law. As a rule, the police have a duty to arrest a person
whom they see in the process of committing an arrest (s 40).

In addition, the Constitution (s 12 (1) (c) – (e)) grants every person the right to
freedom and security, which includes the right not to be exposed to any private or
public violence. Furthermore, the accused has the right to a fair trial, which
includes the right to be presumed innocent (s 35 (3) (h)).

Section 49 of the CPA deals with the arrest of a suspect using force. The following
requirements have to be complied with for the arrest to be regarded as lawful:

a) The force employed must be immediately necessary for the purposes of

protecting the arrester, any person lawfully assisting the arrester or any
other person from imminent or future death or grievous bodily harm;

b) There must be is substantial risk that the suspect will cause imminent or
future death or grievous bodily harm if the arrest is delayed; or

c) The offence for which the arrest is sought must be in progress and be of a
forcible and serious nature and involves the use of life threatening violence
or a strong likelihood that it will cause grievous bodily harm.

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The words reasonably necessary, as used in the Act, imply the use of a proportionality
test in the interpretation of the provision. Students will note that a few decided cases are
discussed in the workbook, which are relevant to the manner in which s 49 has been
applied by the courts:

(i) In Matlou v Makhubedu 1978 (1) SA 946 (A) it was held that in the case of a
fugitive, it is contemplated that killing will be justified if escape cannot reasonably
be prevented in any other way, including the use of other or less force.
Furthermore, if circumstances permit, an oral warning should be given; then a
warning shot into the ground or in the air - depending on the circumstances - and
after that the arrestor should try to short the suspect in the legs. As shown in this
case the arrestor should do everything in his or her power to avoid killing, or even
injuring the suspect, if it can, indeed be avoided.

(ii) In Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) the court
opted for a wide interpretation of the requirement of reasonableness when
interpreting s 49 (1). To this end the court concluded that full weight had to be
given to the fact that the fugitive was obviously young, or unarmed, or of slight
build, etc, and, that he could have been brought to justice in some other way.

(iii) Jooste NO v Minister of Police 1975 (1) SA 394 (E) the other hand, involved the
use police dogs. Here the court held that where the dog is trained in such a way
that its use involves the likelihood of harm to a suspect, and the circumstances in
which it is used are not justified, the dog handler must face liability for the injury
which results. In those cases the use of the dog is no different from the use of any
other type of force and it must appear, if liability is to be avoided, both that the
force was used in the course of effecting an arrest and that it was reasonably
necessary in the circumstances.

(iv) In Ex Parte: Minister of Safety and Security and Others: In Re S v Walters and
Another 2002 (4) SA 613 (CC) [at par 54] the Constitutional Court set out the law
regarding s 49 as follows:

(a) The purpose of arrest is to bring before court for trial persons suspected of
having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in
order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably
necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the
circumstances must be taken into account, including the threat of violence the
suspect poses to the arrester or others, and the nature and circumstances of
the offence the suspect is suspected of having committed; the force being
proportional in all these circumstances.

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(g) Shooting a suspect solely in order to carry out an arrest is permitted in very
limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat
of violence to the arrester or others or is suspected on reasonable grounds
of having committed a crime involving the infliction or threatened infliction
of serious bodily harm and there are no other reasonable means of carrying
out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting
to carry out an arrest to kill a suspect in self-defence or in defence of any
other person.

As far as the facts in question are concerned, it is up to Sergeant Shoot First to convince the court that he
complies with the requirements of s 49, as set out above. Please remember that the law is not an exact
science. It is up to the student to argue the law, either way, based on the facts presented. In other words, if
you feel that based on the facts and law, Sergeant Shoot First acted unlawfully then you need to
substantiate.

(8) X and Y subsequently embark on a formal bail application. The prosecutor S, is, however,
opposed thereto because in her view, such release would not be “in the interests of
justice”. List the grounds upon which release on bail may be regarded as not in the
interests of justice. (5)
Section 60(4) provides that the refusal to grant bail and the detention of an accused in
custody shall be in the interests of justice where one or more of the following grounds are
established:

• where there is the likelihood that the accused, if he or she were released on
bail, will endanger the safety of the public or any particular person or will commit a
Schedule 1 offence; or

• Where there is the likelihood that the accused, if he or she were released on
bail, will attempt to evade his or her trial; or

• Where there is the likelihood that the accused, if he or she were released on
bail, will attempt to influence or intimidate witnesses or to conceal or destroy
evidence; or

• where there is the likelihood that the accused, if he or she were released on
bail, will undermine or jeopardize the objectives or the proper functioning of the
criminal justice system, including the bail system; or

Where in exceptional circumstances there is the likelihood that the release of the accused will
disturb the public order or undermine the public peace or security.

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10

(9) After the capsizing of the SUV, which the police were chasing, Y was arrested at least
three hundred metres from the overturned vehicle. He alleges that he had “nothing
to do with the whole affair” and that he just happened to be “at the wrong place at
the wrong time”. According to him, his injuries were, in fact, sustained from being
struck down by the on-coming SUV whilst he was walking by the road. Meanwhile, a
during the medical
examination in hospital, Dr Strange Love, the physician on duty, notices an entrance
wound on Y’s upper left shoulder. X-ray tests reveal the wound to have been caused
by a projectile, which is now lodged in Y’s left shoulder blade. Sergeant Shoot First is
convinced that the source of projectile is one of the shots which he fired from his R4
Rifle. Y on the other hand, alleges quite strenuously that the wound was sustained
from some of the debris which flew about as a result of the violence from the
capsizing SUV. Sergeant Shoot First insists, against Y’s explicit wishes, that Dr Strange
Love must summarily remove the projectile from Y’s shoulder blade, to be referred
for ballistic comparison. The ballistic analysis, according to Sergeant Shoot First, will
prove “beyond the shadow of a doubt”, that Y was one of the occupants of the SUV
and thus, a participant in the crimes alleged.

(a) In the light of Minister of Safety and Security and Another v Xaba 2004 (1) SACR 149
(D):
(i) state a Constitutional provision which accorded protection to Y, and which might
have been violated by Sergeant Shoot First’s shooting (3)
Sergeant Shoot First may have violated section 12 of the Constitution, namely,
(1) “… the right to freedom and security of the person … which
includes the right… to be free from all forms of violence from
either public or private sources”;
“… the right to bodily and psychological integrity, which includes the right … to security in
and control over their body”.

(ii) discuss the finding of the court in respect of the applicability of s 37 (1) (c) (7)

Section 37 of the CPA deals with powers of police officers in respect of the acquisition of
prints and bodily features from an accused. Section 37 (1) (c) authorizes a police officer to

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11

use the necessary steps to ascertain prints or bodily features. On the other hand, s 37 (2)
(a) allows a medical practitioner or district surgeon or registered nurse to, if requested by
members of the police, obtain a blood sample in order to ascertain a bodily feature.

The court held [at 160] that the intention of the legislature in respect of s 37 (1) (c) was
patently, not to empower a police official to give a medical practitioner to perform an
operation on an accused person in order obtain evidence. The court also emphasised that the
s 37 (1) (c) did not authorise a police officer himself or herself to either perform surgery on a
suspect, or to take a blood sample from him or her.

(b) In S v Huma 1996 (1) SA 232 (W) the court tabulated five reasons why the taking of
fingerprints does not essentially violate s 11 (2) of the Constitution of the Republic of
South Africa, 1996. (10)
There was an error in making reference to Section 11(2) of the Constitution of 1996.
The correct reference is Section 12 of the Constitution of the Republic of South
Africa, 1996. However, students will not be penalised for any reference to the
incorrect Section. The answer to the question lies in the case of Huma itself.
In S v Huma 1996 (1) SA 232 (W) the court tabulated the following five
reasons why the taking of fingerprints does not essentially violate s 12 of
the Constitution of the Republic of South Africa, 1996:

• The taking of fingerprints is common mode of individual identification

throughout the world, which is for the issuing of identity documents and
passports. Therefore, the act of making one's fingerprints available for
purposes of issuing an identity document or a passport can never be
regarded as inhuman or degrading treatment.

• In practice, fingerprints are taken in private and not in the court room, or a
public place. Thus, the taking of fingerprints cannot be regarded as
'inhuman' or 'degrading', to the point where a person’s self-esteem is
lowered, or a person is dishonoured or debased in any manner.

• The process of obtaining fingerprints, does not, in essence, constitute an

intrusion into a person's physical integrity, because it is not accompanied
by physical pain of any kind. This is unlike the taking of a blood sample,
which constitutes more of an intrusion into a person's physical integrity
than the taking of a person’s fingerprints. The taking of fingerprints is, in
fact, the same as the mere taking of a photograph, which does not violate

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12

the physical integrity of a person.

• The fingerprints taken in terms of s 37 are eventually destroyed, if the

accused is subsequently found not guilty. Thus, the application of the
provisions of s 37 provides an additional safeguard to the individual rights
of the accused.

• The taking of fingerprints can potentially be advantageous to the accused

in proving his innocence. For example, a comparative analysis of
fingerprints may conclude that the accused was not involved in the
commission of the offence.
Question 3

(1) “When individuals relinquished their right to private vengeance to the state, they did
so on the tacit understanding that the state would dutifully prosecute crime.”
Discuss this statement in the context of the general applicability of public and
private prosecutions. (8)

Most criminal jurisdictions, especially in the accusatorial divide, do not adhere to the
principle of compulsory prosecution. In other words, prosecuting officials in these
jurisdictions are vested with discretion whether or not to prosecute. However, an official
refusal to prosecute might occasionally not please the victim of the crime. There are good
reasons why prosecuting authorities should have discretion. In order to avoid a deadlock
under these circumstances, and also to suppress or accommodate the urge to resort to
self-help, some jurisdictions provide for private prosecution, in addition to their system of
public prosecution.

Private prosecution provides the aggrieved individual, in his or her personal capacity, to
proceed with the criminal case against the alleged perpetrator. The process works the same
as a public prosecution that the wronged party sees to prove the alleged perpetrator’s guilt
beyond reasonable doubt in a court of law, and have him or her punished within the ambit
of legitimate procedures which were created by the state and which were also available to
the state had it not declined to prosecute. The South African Criminal Procedure Act makes
provision for private prosecutions in certain limited instances.

(2) Discuss the guidelines which must be followed when determining the principle of
“reasonableness”. (12)

Although it would be impossible to lay down any hard and fast rules in this regard, the

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following guidelines may be followed:

(a) The requirement of reasonableness may be described as a

requirement that there be “reasonable grounds” from which a certain
inference can be drawn. It can for instance only be said that force is
“reasonably necessary” to achieve a certain goal, if there are
“reasonable grounds” to believe that such force is actually necessary
to achieve the goal. A person can furthermore only be said to have a
“reasonable suspicion” that a certain state of affairs exists if he has
“reasonable grounds” to believe that state of affairs exists.

(b) A person will only be said to have “reasonable grounds” to believe or

suspect something or that certain action is necessary if:

(i) He really “believes” or “suspects” it

(ii) His belief or suspicion is based on certain “grounds”

(iii) In the circumstances and in view of the existence of those

“grounds”, any reasonable person would have held the same
belief or suspicion.

(c) The word “grounds” as it is used here, refers to “facts”. This means
that there will only be “grounds” for a certain suspicion or belief if the
suspicion or belief is reconcilable with the available facts. The
existence or otherwise of a “fact” is objectively determined – Van
Heerden 1958 (3) SA 150 (T) at 152 and Nell 1967 (4) SA 489 (SWA) at
494. This means that one will have to look at the facts as they really
are and not as someone may “think they are”. To determine what the
facts really are, a person will make use of his five senses. This means
that the person will determine the true facts by looking, hearing,
smelling, touching and tasting.Once a person has established what the
facts really are, he will evaluate them and make an inference from those
facts with regard to the existence or otherwise of other facts, which he is at
the time, for whatever reason, unable to establish. This means that he will
consider the true facts and will then decide whether the true facts are in his
view sufficient to warrant a belief that the other facts also exist – cf
Mnanzana 1966 (3) SA 38 (T) at 43.

(d) Once he has made the inference that the other facts exist, it can be said
that the person himself “believes” or “suspects” that such facts exist.

(e) However, the mere fact that a certain person believes or suspects that
certain facts exist are not sufficient to regard his belief as one based on

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“reasonable grounds” as required by law. This will only be the case if it can
be said that any reasonable person would have held the same belief or
suspicion in the circumstances. These words “any reasonable person”, as
they are used in this regard, refer to any other person who has more or
less the same background knowledge (such as training and experience) as
the person who actually entertains the belief or suspicion.

A person can therefore be said to have “reasonable grounds” to believe or suspect something if
he actually believe or suspects it, his belief or suspicion is based on facts from which he has drawn
an inference, and if any reasonable person would, in view of those facts, also have drawn the
same inference. This is a factual question that will have to be answered with reference to the
factual circumstances that are present in each case

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Assignment 02 – Semester 1

Question 1

(1) Discuss the circumstances under which an error in a charge sheet may be corrected.
(8)

The circumstances under which errors in a charge may be corrected:

Section 86(1) makes provision for the amendment of an indictment in the following
three situations:

(a) Where it is defective for want of an essential averment;

(b) Where there is a variance between the averment in the charge and the
evidence offered in proof of such averment; or

(c) Where words have been omitted, or unnecessarily inserted, or any other
error is made.

The following points regarding the amendment of a charge are to be noted:

(a) In terms of s 86(1) the court may order an amendment only if it considers
that the making of the amendment will not prejudice the accused in his
defence – Taitz 1970 (3) SA 342 (N). There will not be prejudice if there is
but a slight variance or where it is clear that the defence would have
remained exactly the same had the State originally presented the charge in
the amended form.

(b) Section 86 makes provision for amendment of the charge – not for
replacement thereof by an altogether new charge – Barkett’s Transport
(Edms) Bpk 1988 (1) SA 157 (A). Should a new charge be framed in the
course of a trial, the possibility of prejudice to the accused is strong; the
accused comes to court prepared to meet a particular charge, and will now
be faced with a different issue – Slabbert 1968 (3) SA 318 (O).

(c) Section 86(4), however, provides that the fact that a charge has not been
amended as provided in this section shall not, unless the court has refused
to allow the amendment, affect the validity of the proceedings thereunder.
According to our courts it must be interpreted in such a way that if an
amendment would have been in order by virtue of subsection (1), ie if it
would not have prejudiced the accused in his defence, the failure to effect
the amendment will not invalidate the proceedings, except where the court
refused to allow the amendment – Coetzer 1976 (2) SA 769 (A) at 772. (8)

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(2) Discuss the rights and duties of assessors. (12)

Rights and duties of assessors:

• Subject to paragraph (b) and (c) below and s 217(3)(b), the decision or finding of
the majority of the members of the court upon any question of fact or upon the
question referred to in paragraph (b), shall be the decision or finding of the
court, except when the presiding judge sits with only one assessor, in which
case the decision or finding of the judge shall, in the case of a difference of
opinion, be the decision or finding of the court
• If the presiding judge is of the opinion that it would be in the interests of the
administration of justice that the assessor(s) assisting him do not take part in
any decision upon the question whether evidence of any confession or other
statement made by an accused is admissible as evidence against him, the
judge alone shall decide upon such question, and he may for this purpose sit
alone. It is clear that the judge may now, in his discretion, together with the
assessors determine the admissibility of a confession or other statement made
by the accused – s 145(4)(a) and (b); Ngcobo 1985 (2) SA 319 (W);

• The presiding judge alone shall decide upon any other question of law or upon
any question whether any matter constitutes a question of law or a question of
fact, and he may for this purpose sit alone – s 145(4). An application at the close
of the State’s case for the accused’s discharge in terms of s 174 is one of law,
and the decision is that of the judge alone – Magxwalisa 1984 (2) SA 314 (N);

• A judge presiding at a criminal trial in a superior court shall give the reasons for
his decision where he decides any question of law or whether any matter
constitutes a question of law or a question of fact. The judge shall also give the
reasons for the decision or finding of the court upon any question of fact or the
question referred to in paragraph (b) above, whether he sits with or without
assessors. Where the judge sits with assessors and there is a difference of
opinion upon any question of fact or upon the question referred to in paragraph
(b), he shall give the reasons for the minority decision – s 146.

As soon as an assessor receives information detrimental to the accused which

has not been proved in evidence, he must retire from the case – Matsego 1956
(3) SA 411 (A). An assessor must show absolute impartiality: His or her
expressing an opinion about a particular witness before the accused has been
called to state his defense, will be grossly irregular – Mayekiso 1996 (1) SACR
510 (C), also Stone 1976 (2) SA 279 (A).

The function of assessors is limited to the hearing of the trial, and since the trial is the determination of the
matters put in issue and ends with the verdict, the assessors have no part with the judge in the assessment or
the imposition of the sentence; although, according to Hiemstra 367, it is not irregular for the judge to seek the
advice of his assessors in the matter of sentence.

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(3) During trial proceedings, the accused, Dangerous Criminal is not particularly happy
with the way in which the presiding officer, Cruel One, keeps interjecting when his
attorney Cupid Stupid tries to argue points in his defence. He comes to the
conclusion that the presiding officer is somewhat unfair and biased against him. He
thereupon instructs his attorney to apply for the recusal of the presiding officer from
the proceedings on the grounds of bias. Discuss the requirements of the test for
judicial bias, and whether, in your view, mere interjection during presentation
qualifies as a valid ground. (6)

(1) The requirements of the test for the presence of judicial bias are:

(a) There must be a suspicion that the judicial officer might be, not would be,
biased.

(b) The suspicion must be that of a reasonable person in the position of the
accused.

(c) The suspicion must be based on reasonable grounds.

(d) The suspicion is one which the reasonable person referred to would, not
might, have held.

The default position in the determination of bias is that a judicial officer is

presumed to be partial, until the contrary is proved. The criterion for recusal is an
objective one. In other words, the question to be determined is whether a right-
thinking observer or litigant is left with the impression that the accused did not
receive a fair trial. Irregularity in the questioning of a witness by the presiding
officer is not, per se, a sign of bias – Dawid 1991 (1) SACR 375 (Nm). Despite the
accusatorial nature of South African court procedure, presiding officers are
required, in some instances, to assume an inquisitorial posture. The question
whether the interjections of the court was inappropriate must be determined on
the facts of each case.

Thus, Dangerous Criminal bears the onus to establish cogent and convincing
reasons that that the presiding officer was impartial in his or her conduct of the
trial. Here the student must justify, either way, whether the actions of the presiding
officer were such as to render his actions as bias.

The facts do not necessarily provide a clear picture of the supposed bias conduct of the presiding
officer, except to point out that the presiding officer kept “interjecting” intermittently. The student is,
therefore, permitted to provide his or her own view, just as long as it is cogently argued.

(4) Discuss the standards which must be maintained by the judicial officer in the
questioning of witnesses as set out in Mabuza 1991 (1) SACR 636 (O). (4)
(5)
The standards which must be maintained by the judicial officer in the questioning of
witnesses as set out in Mabuza 1991 (1) SACR 636 (O) are:

• The court should not conduct its questioning in such a manner that its

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impartiality can be questioned or doubted.

• The court should not take part in the case to such an extent that its vision is
clouded by the ‘dust of the arena’ and is then unable to adjudicate properly on
the issues.

• The court should not intimidate or upset a witness or the accused so that his
answers are weakened or his credibility shaken.

The court should control the trial in such a way that its impartiality, its open- mindedness, its
fairness and reasonableness are manifest to all who have an interest in the trial, in particular the
accused

Question 2

(1) Describe the term ‘arraignment’. (2)

Arraignment constitutes the bringing of the accused to court, informing him of the offence with which
he is charged, and calling upon the accused for his plea and entering it. The accused is deemed to
be arraigned when his or her plea has been recorded.

(2) Discuss the circumstances under which a plea may be changed from ‘guilty’ to ‘not
guilty’.
(4)

(1) If the court at any stage of the proceedings under s 112 of the CPA, and before
sentence is passed,

(a) the court is in doubt as to whether the accused is, in law guilty of the
offence to which he or she has pleaded guilty, or;
(b) the court is in doubt as to whether or not the accused admits an allegation
in the charge, or;
(c) the accused has incorrectly admitted any such allegation or;

(d) the accused has a valid defence to the charge, or;

the court is of the opinion for any other reason that the accused’s plea of guilty should not
stand, the court shall record a plea of not guilty and require the prosecutor to proceed with
the prosecution – s 113

(3) Discuss statutory plea bargaining in terms of s 105A of the CPA and indicate the
main difference between statutory plea bargaining and traditional plea bargaining.
(12)
(2) Important aspects of statutory plea bargaining, and the main difference between
statutory plea bargaining and traditional plea bargaining:

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Negotiating a plea to a lesser offence (which may be an offence which is a

competent verdict to the offence as charged or an alternative charge) with the
prosecutor which he or she may agree to accept, could be achieved either by
traditional methods of informal discussion or formally in terms of s 105A of the
CPA. These negotiating procedures are often followed to avoid a lengthy and
expensive trial.

Traditional plea bargaining:

Important aspects:

i. the prosecutor may agree to suggest to the court a possible light, or lighter,
sentence; however;

ii. the sentence agreement between the prosecutor and the defence, in terms
of the plea agreement cannot bind the court;

Statutory plea bargaining:

The following mandatory formalities are prescribed in respect of statutory:

i. The whole agreement must be in writing.

ii. The time for entering into an agreement (or agreements) is before the
commencement of the trial, that is, before the plea.

iii. Section 105A does not apply to a charge or charges where a plea is
offered during the trial and accepted during the trial. It is also a once-off
situation: if the court has ruled for a de novo trial (on the merits or the
sentence), the parties may not enter into a plea and sentence agreement in
respect of a charge arising out of the same facts.

iv. In determining whether a plea agreement complies with the requirements

stipulated in s 105A, a court will also examine subsection (1)(b)(iii) which
provides for the participation of the complainant/victim – Sassin [2003] 4 All
SA 506 (NC).

v. Only a prosecutor who is authorised in writing and a legally represented

accused may negotiate an agreement on plea and sentence. Non-
represented accused are excluded from the provision.
vi. The judicial officer may not participate in the negotiations.

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vii. In court the judicial officer must question the accused on the contents of
the agreement to satisfy himself whether the accused is in fact voluntarily
admitting all the allegations in the charge. If the court is satisfied, it
proceeds to the sentencing phase without recording a conviction.

viii. When considering the sentence agreement, the court must be satisfied that
the sentence agreement is just, and if so, the court convicts the accused
and sentences the accused to the sentence agreed upon.

ix. If the court is not so satisfied, it informs the parties of the sentence which
the court considers just. In the latter event, two possibilities arise:

(a) the prosecutor and the accused may elect to abide by the agreement
on the merits and the court then convicts the accused and proceeds
to consider sentence in the normal way;

(b) alternatively, the parties (or one of them) opt to withdraw from the
agreement: This will mean that the trial must start de novo before
another judicial officer.

Once a trial starts de novo, s 105A prescribes that the agreement is pro non scripto and no regard
may be had, or reference made, to any prior negotiations on the agreement itself, although the
accused may consent to all or certain of the admissions made by him, either in the agreement or in
the course of the proceeding. The parties may not, however, plea bargain in terms of s 105A in
respect of a charge arising from the same facts. It does not preclude traditional plea bargaining.

4. List the pleas which may be raised by an accused during criminal trial
proceedings. (9)
Section 106 provides that the accused may plead:

i. That he is guilty of the offence charged or of any offence of which he may

be convicted on the charge;

ii. That he is not guilty;

iii. That he has already been convicted of the offence with which he is
charged (autrefois convict);

iv. That he has already been acquitted of the offence with which he is charged
(autrefois acquit);

v. That he has received a free pardon from the President for the offence
charged;

vi. That the court has no jurisdiction to try the offence;

vii. That he has been discharged from prosecution in terms of s 204 after
giving satisfactory evidence for the State;

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viii. That the prosecutor has no title to prosecute; or

That the prosecution may not be resumed or instituted owing to an order by a court under s 342A
(3) (c).

5) Discuss the plea, lis pendens. (3)

The lis or case pending in another court against the accused must be a criminal case. This plea is
not recognized in the Code, but the general powers of postponement of the trial can be exercised
on such a plea, which cannot have anything but a delatory effect. If the other trial is completed and
a plea of autrefois acquit or convict does not then become effective, the fact that the other trial
took place will be irrelevant at the trial where the plea of lis pendens has been raised. Cf Lubisi
1980 (1) SA 187 (T); Motsepa 1982 (1) SA 304 (O). See also Mayisa 1983 (4) SA 242 (T).

Question 3

1) Discuss the basic principles which are taken into account by the court in it
consideration of a postponement. (4)

When the court considers an application for postponement, whether it be by the

State or the defence, the following two basic principles have to be considered:

(a) That it is in the interest of society that guilty men should be duly convicted
and not discharged due to an error which could have been avoided had the
case been adjourned; and

(b) That an accused is deemed to be innocent and therefore has a right, once
charged, to a speedy hearing.

2) The right of an accused to have his or her trial commenced and concluded without
unreasonable delay is expressly entrenched in the Bill of Rights – s 35 (3) (d).
Discuss three principles which are recognised by the courts, in terms of which an
accused might suffer potential prejudice if his or her trial is not heard speedily.
(10)

Principles which are recognised by the courts, in terms of which an accused

might suffer potential prejudice if his or her trial is not heard speedily:

(a) the loss of personal liberty, which may result from detention or restrictive
bail conditions;

(b) reputational damage which may result in ostracism from society, or loss of
income and or employment;

trial-related which results from incidences such as the loss of memory by witnesses.

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Question 4

(1) Discuss the nature, purpose and statutory basis of competent (15)
verdicts.
The nature, purpose and statutory basis of competent verdicts:

It sometimes happens that the evidence presented by the

prosecution falls short of proving the main charge, but
nonetheless succeeds to prove the commission of an offence
which is not expressly mentioned in the charge sheet as an
alternative charge.
One of the main objects is to make it unnecessary to put a
range of alternative charges on the charge sheet. Section 83
of the CPA makes provision for the inclusion of an alternative
to the main charge. The offence which forms the basis of a
competent verdict ordinarily refers to a charge which is lesser
than the main charge. Thus, for example, the accused might
be convicted, in case of a charge of murder, of culpable
homicide, where the prosecution proves, beyond reasonable
doubt, that the accused acted negligently in killing the
deceased.

Competent verdicts are only permissible if sanctioned by

legislation. The ambit of the application of competent verdicts
is governed by s 256 – 270. Thus, it is important to note that
there is no general applicability of competent verdicts. In
other words, a competent verdict might be inapplicable in
circumstances where the nature and elements of the main
charge necessarily suggest that a particular alternative is
applicable. For example, the charge of housebreaking with
intent to steal is not a competent verdict of a charge of
robbery, simply because none of the provisions in the CPA
expressly sanction housebreaking with intent to steal as a
competent verdict on a charge of robbery.

If the main charge against the accused is proved beyond a reasonable

doubt, the court may not resort to the alternative provided for by
legislation. In the same vein, the prosecution is not entitled to a
competent verdict simply because it failed to prove the main charge. A
conviction on the main charge is substantially regarded as an acquittal
on the main charge

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(2) List the competent verdicts on a charge of murder. (7)

Competent verdicts on a charge of murder:

a. Culpable homicide;

b. Assault with intent to do grievous bodily harm;

c. Common assault;

d. Robbery;

e. Public violence;

f. Pointing a fire-arm, air-gun or air-pistol;

g. Exposing an infant; and

Disposing of the body of a child with intent to conceal the fact of its birth – s 258.
(3) Discuss the general differences between appeal and review. (8)
The general differences between appeal and review:

Despite the differences between appeal and review procedures, both processes
are inherently aimed at setting aside a conviction or a sentence. An appeal is
employed as a means to challenge a conviction or sentence or both. It is
essentially concerned with the substantive correctness of the judgement, based
on the facts or merits of the case on the record and the law relevant to such
facts. A review is used to address the situation where a party is aggrieved about
an irregularity involved in arriving at the conviction. Thus, in essence, a review is
concerned with the validity of the proceedings. According to Ellis v Morgan; Ellis
v Dessai 1909 TS
567 a 581, an irregularity in the proceedings, ‘does not mean an incorrect
judgment; it refers not to the result, but to the methods of a trial, such as, for
example, some high-handed or mistaken action which has prevented the
aggrieved party from having his case fully determined.’

Irregularities may arise from high-handedness on the part of the presiding officer,
but also from a bona fide mistake, which denies the accused a fair trial. A party
that wishes to attack the proceedings on one or more grounds of review, and
also on the basis of the correctness of the court’s findings on the facts or the law
– or both
– may appeal and apply for review, as the case may be. Judicial reviews relating
to constitutional issues are brought by means of an appeal or review depending
in which forum (lower court of high court) the constitutional matter has arisen.
The purpose and aim of judicial review will obviously cause the approach to and
grounds of the review or appeal to be different.

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1.1 Assignment 03 – Semester 1

Each statement is either true or false.

Note: All references to “the Act” or to “the CPA” are to the Criminal Procedure Act 51 of 1977.
All references to “the CJA” are to the Child Justice Act 75 of 2008.

1.1.1 Assignment questions

1. The prosecutor is entitled to address the court at the opening of the State’s case. TRUE

2. The procedure in terms of which the prosecution asks questions to its own witnesses is
called cross-examination. FALSE
3. The procedure in terms of which the defence asks questions to the state witnesses is
called examination-in-chief. FALSE
4. The prosecutor must close his or her case after all the evidence of the prosecution has
been disposed of. TRUE
5. The test for a discharge is based on the question whether there is sufficient evidence
upon which a reasonable man might convict. TRUE
6. The court is not required to give reasons for its judgment. FALSE
7. Common assault is a competent verdict to a charge of murder. TRUE
8. A caution amounts to a sentence. TRUE
9. A minimum sentence may be imposed in respect of any offence with which the accused
has been convicted. FALSE
10. After convicting the accused, the court must forthwith sentence him or her without
hearing further evidence. FALSE
11. Previous convictions are regarded as a mitigating factor in sentencing proceedings.FALSE
12. Life imprisonment is a determinate form of sentence in the sense that the accused is
effectively incarcerated for the entirety of his or her lifetime.FALSE
13. The amount of the fine to be paid by the accused is left to the discretion of the
prosecutor. FALSE
14. An appeal is concerned with the substantive correctness of the decision based on the
facts or merits of the case on the record and the law relevant to such facts.TRUE
15. A review is concerned with the validity of the proceedings. TRUE
16. No review may be instituted at the instance of the prosecution. FALSE
17. The high court may order the proceedings of a lower court to start afresh upon making a
finding of procedural irregularity.TRUE
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18. A declaratory order can only be granted where there is a dispute between parties.-FALSE
19. The right of appeal is not Constitutionally mandated.-FALSE
20. A member of the public is permitted to approach the Constitutional Court directly.TRUE
21. An appeal court has the general discretion to correct a sentence.FALSE
22. An appeal court is in a better position to make reliable findings of credibility.-FALSE
23. In an appeal on a question of fact, it is the duty of the court of appeal to retry or rehear
the case on the record before the court together with any other evidential material.TRUE
24. There is, in principle, no right to be pardoned.TRUE
25. The accused does not have further recourse beyond the process of appeal.FALSE

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SEMESTER 2 – ASSIGNMENT 1 - 2019

Question 1
(1) Distinguish, and briefly discuss, the differences between substantive and
adjective law. (5)
Substantive law comprises of legal rules that determines the rights and duties of
individuals and the state (1), and both private law and public law are part of substantive
law (1). Substantive criminal law determines the prerequisites for criminal liability and
prescribes the elements of various specific crimes (1). Substantive law also determines
the extent of punishment for breaches of rules (1). On the other hand, adjective law
provides the procedures to enforce substantive law, it puts substantive criminal law into
action (1). Criminal substantive and adjective law must function within the realm of
constitutionalism, in other words it must advance rights and duties (1).
(2) Discuss the extent to which the rules of criminal procedure may be said to be
double functional. (5)
Many rules of criminal procedure are double-functional in the sense that apart from
regulating procedure, they also operate as grounds of justification in substantive law (1).
Accordingly, if a police officer infringes a suspect’s interest in privacy by searching him
in terms of the provisions of criminal procedure, the act of searching is both a regular
procedural action and a lawful limitation of the suspect’s right to privacy (1). In terms of
substantive law, the suspect can neither successfully charge the peace officer with an
offence nor sue him according to the law of delict when the officer has conducted a lawful
search (1). However, if the officer has conducted an illegal search the evidence obtained
therefrom becomes inadmissible in the court of law, this further opens the officer to
criminal charges and action for damages (1). Grounds of justification in substantive law
may also be double-functional and may be used to a great effect in criminal procedure.
For example, if a police officer lawfully arrests a suspect and the latter attacks the officer,
the officer may lawfully defend himself, and may rely on self-defence as a justification
(1). The officer can similarly rely on relevant provisions in the law of criminal procedure,
particularly rules relating to overcoming resistance in arrest (1).
(3) The prosecution must at a trial be able to furnish proof beyond a reasonable
doubt. Occasionally there might be good grounds for refusing to prosecute
despite the fact that a prima facie case exists. Discuss ‘the discretion of the
prosecutor to prosecute’. (10)
In principle, South Africa does not follow a system of compulsory prosecution (1). The
prosecutor has a duty to prosecute if there is a prima facie case and if there is no
compelling reason for a refusal to prosecute (1). In this context “prima facie case” implies
the following: allegations, as supported by statements and real and documentary
evidence available to the prosecution are of such a nature that if proved in a court of law

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by the prosecution on the basis of admissible evidence, the court should convict (1).
Sometimes it is asked: Are there reasonable prospects of success with a prosecution?
The prosecution, it has been held, does not have to ascertain whether there is a defence,
but whether there is a reasonable and probable cause for prosecution – see generally
Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 137 and Lubaxa 2001
(2) SACR 703 (SCA) at 707i (1). The prosecution must at the trial be able to furnish proof
beyond a reasonable doubt (1). Occasionally there might be good grounds for refusing
to prosecute despite the fact that a prima facie case exists (1). Such grounds may be
the triviality of the offence; the advanced age or very young age of an accused; where a
plea bargain was struck between the prosecution and the defence; the antiquated
personal circumstances of an accused, for example, a father who has through his
negligent driving caused the death of his young child (2). There is a rule of practice in
terms of which an accused, or his legal representative acting upon his instructions, may
take written representations to a DPP or the local public prosecutor to decline to
prosecute (1). When exercising the discretion whether to prosecute or not, the
prosecutor must respect the individual’s right not to be harassed by a prosecution that
has no reasonable prospect of success. The prosecutor doubting the strength of the
state’s case should not resort to fixing an admission of guilt with a penalty of a fine, thus
relieving the state the burden of proving its case, Eusuf 1949 (1) SA 656 (N) 656-7 (1).
The decision, whether to prosecute or not, that the prosecutor adopts must be made for
a good reason, National Society of the Prevention of Cruelty to Animals v Minister of
Justice and Constitutional Development 2016 SACR 308 (SCA) para 25 (1).
(4) Discuss the distinction between withdrawal of a charge and stopping of the
prosecution. (5)

The prosecuting authority has the authority to withdraw a charge before the accused has
pleaded to such a charge – s 6(a) of CPA. The accused is in these circumstances not
entitled to a verdict of acquittal (1). He may be prosecuted again on the same or related
charges, for example, where new evidence is found (1). A prosecutor may withdraw a
charge without the consent of his DPP. The reason for this is that a DPP, if dissatisfied
with the prosecutor’s withdrawal of the charge, may charge the accused afresh (1).
Before an accused pleads, the prosecution can also withdraw a summons and issue
another – Wolman v Springs Town Council 1941 TPD 104 (1). A DPP may at any time
after an accused has pleaded, but before conviction, stop the prosecution in respect of
that charge (1). If this is done, the accused is entitled to an acquittal – s 6(b) of CPA.
This means that in any subsequent prosecution in respect of the same facts, the accused
can successfully rely on a plea of previous acquittal (autrefois acquit) (1). However, a
public prosecutor may not stop a prosecution without the consent of the DPP or any
person authorized thereto by such a DPP – s 6(b); Van Wyk 1981 (3) SA 228 (C) (1).
The mere fact that a prosecutor indicates to the court that on the evidence as presented
in court he is unable to support a conviction, does not amount to a stopping of the
prosecution – Bopape 1966 (1) SA 145 (C) (1).

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Question 2
(1) The South African law jealously protects the personality and property rights of
individuals. These rights include every person’s right to his bodily integrity,
freedom, honour, dignity and privacy, as well as his rights with regard to property.
Accordingly, these interests are fully protected by the Constitution. Justify the
above statements, with specific reference to the South African criminal procedure.
(10)
Section 19 of the CPA states that the provision shall not derogate from any power
conferred by any other law to enter any premises or to search any person, container or
premises or to seize any matter, to declare any matter forfeited or to dispose of any
matter (1). This particularly recognizes the supremacy of the Constitution and its
underlying policy of fundamental rights (1). In accordance with the policy of the right to
property, section 21 of the CPA states that seizure of instruments used to commit
criminal activities shall only be by virtue of a search warrant issued by a judge or a
magistrate (1). This limits the likely abuse of power by police officials, thus the provision
compels the state to respect fundamental rights of individuals (1). Of course, there are
instances where a limit to an individual’s fundamental rights may be permissible, for
example searches without a warrant. The execution of such search, however, must be
done where a person consents to a search or upon reasonable grounds, section 22 of
the CPA (1). The entering of dwellings by the police should only be done in accordance
with the law, this should involve the issuing of a warrant for the purpose of a search by
a magistrate (1) or a judge or the police official must enter the premises for the purpose
of a search only upon reasonable grounds that a warrant will be issued to him and that
the delay in obtaining such warrant would defeat the object of the search, section 25 of
the CPA (1). A search of any person or premises shall be conducted with strict regard to
decency and order, and a woman shall be searched by a woman only, and if no female
police official is available, the search shall be made by any woman designated for the
purpose by a police official (1). Any disposal or confiscation of property must be done
with the consent of or with due regard to the interests of the persons concerned, section
30 of the CPA (1). Any article which was seized during police search that are not part of
criminal activities must be returned to the person from whom it was seized, if such person
may lawfully possess such article, or, if such person may not lawfully possess such
article, to the person who may lawfully possess it (1). Any police official who, in terms of
this Act or any other law takes the fingerprints, a body-print or buccal sample or
ascertains any bodily feature of a child must- (a) have due regard to the personal rights
relating to privacy, dignity and bodily integrity of the child; (b) do so in a private area, not
in view of the public; (c) ensure the presence of a parent or guardian of the child, a social
worker or an appropriate person; and (d) treat and address the child in a manner that
takes into account his or her gender and age, section 36A(2) of the CPA (2). Buccal
samples must be taken by an authorised person who is of the same gender as the person
from whom such sample is required with strict regard to decency and order (1).
(2) Discuss the powers of private persons to arrest without a warrant. (8)
Any private person may without warrant arrest any person- (a) who commits or attempts
to commit in his presence or whom he reasonably suspects of having committed an
offence referred to in Schedule 1 (1); (b) whom he reasonably believes to have
committed any offence and to be escaping from and to be freshly pursued by a person
whom such private person reasonably believes to have authority to arrest that person
for that offence (1); (c) whom he is by any law authorized to arrest without warrant in
respect of any offence specified in that law (1); (d) whom he sees engaged in an affray

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(1). The owner, lawful occupier or person in charge of property on or in respect of which
any person is found committing any offence, and any person authorized thereto by such
owner, occupier or person in charge, may without warrant arrest the person so found (1).
The power conferred upon a private citizen to arrest without a warrant should be
exercised sparingly and with great circumspection – Martinus 1990 (2) SACR 568 (A)
(1). The courts generally puts much weight on the right to freedom, Morepedi v Springs
Municipality 1946 TPD 105 (1). Thus, the Morepedi case illustrate that only when the
provisions of law are complied with can a lawful arrest be effected (1).
(3) Discuss the duty of a private person to arrest a suspect. (7)

As a general rule there is no obligation on a private individual to arrest someone (1). The
exception to this rule is that every male inhabitant of the Republic between the ages of
16 and 60 is, when called upon by a police official to do so, required to assist such police
official in arresting and detaining a person (1). Failure to heed the call to assist is an
offence punishable by a fine or imprisonment for a period not exceeding three months
(1). In Mgwenya 1925 TPD 288 it was held that lameness may exempt the accused from
criminal liability (1). Mens rea is said to a core element of this crime (1). The police official
calling for assistance to effect an arrest must have authority to arrest, Rosenthal 1927
TPD 470 (1). Thus, the state has to discharge evidence that the officer had authority to
arrest before a conviction for failure to assist the police official can be secured (1). In
terms of the Civil Aviation Act 13 of 2009, an authorised person may call on any person
to assist him or her to effect an arrest on a person who has committed or suspected to
have committed an offence in terms of aviation law (1).

Question 3
(1) Discuss the ascertainment of the bodily features after arrest. (10)
Section 10 of the Constitution recognises the right to respect for and protection of the
dignity of the individual (1). Similarly, section 12(1) protects the freedom and security of
the person and proscribes degrading treatment of the individual (1). Section 12(2)
protects the right to security in and control over one’s body (1). The identification of
suspects through ascertainment of bodily features must however be viewed as a
legitimate limitation of rights when properly and lawfully conducted in the pursuance of
the interest of justice (1). Naturally this does not give the police carte blanche insofar as
invading the bodily integrity of a suspect is concerned, but it does confer certain powers
which, when exercised lawfully, are essential tools within a due process system of
criminal procedure (1). S v Huma 1996 (1) SA 232 (W) the court held that the taking of
fingerprints does not essentially violate the accused’s right to remain silent or his right to
have his dignity respected and protected, and thus constitutes a lawful limitation of rights
in the pursuit of justice (2). However, in Minister of Safety and Security v Xaba 2003 (2)
SA 703 (D) the court held that the then s 37(2)(a) did not authorise the removal of a
bullet under general anaesthetic (2). The ascertainment of bodily features must be
conducted within constitutionally acceptable standards that promotes decency and
shuns the subjecting of any person to degrading or humiliating treatment (1).

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(2) X, a police official, forcibly opens the cellar of the accused, Y’s, house without Y’s
consent and without a warrant to search. X then searches the cellar and finds a
bag full of Mandrax tablets, 100 kg of dagga and documents, addressed to Y’s
lawyer. During the trial Y argues that the search was illegal because X did not act
upon a warrant, and in accordance to the provisions of the CPA, and that X’s
evidence relating to the dependence-producing substances and the documents
must be excluded as evidence as it was obtained unlawfully. The prosecution
argues that X acted lawfully and that the court must allow X’s evidence.

Discuss, with reference to case law and the appropriate provisions of the CPA,
whether the arguments of Y or that of the State should be accepted by the court.
Your answer must also reflect the classes of articles that are susceptible to
seizure. (15)
The State may, in accordance with the provisions of the CPA, seize anything (a) which
is concerned in or is on reasonable grounds believed to be concerned in the commission
or suspected commission of an offence, whether within the Republic or elsewhere (1);
(b) which may afford evidence of the commission or suspected commission of an
offence, whether within the Republic or elsewhere (1); or (c) which is intended to be used
or is on reasonable grounds believed to be intended to be used in the commission of an
offence (1). However, the documents of privilege do not fall under the category of articles
that can be seized during raids, Prinsloo v Newman 1975 (1) SA 481 (A) (1). A police
official may without a search warrant search any person or container or premises for the
purpose of seizing any article (a) if the person concerned consents to the search for and
the seizure of the article in question, or if the person who may consent to the search of
the container or premises consents to such search and the seizure of the article in
question (1); or (b) if he on reasonable grounds believes - (i) that a search warrant will
be issued to him if he applies for such warrant (1); and (ii) that the delay in obtaining
such warrant would defeat the object of the search (1). Section 11 of the Drugs and Drug
Trafficking Act 140 of 1992 authorised the search, seizure and confiscation of article
concerned in drug trafficking (1). The high Court in the Kunjana v Minister of Police
[2015] ZAWCHC 198 declared the section to be unconstitutional subject to the
Constitutional Court’s confirmation (1). The Con Court held in Minister of Police v
Kunjana [2016] ZACC 21 (1): “I agree with the applicants’ contention that the impugned
provisions leave police officials without sufficient guidelines with which to conduct the
inspection within legal limits. A warrantless search procedure implies the absence of a
warrant providing guidance as to the time, place and scope of a search and it is therefore
desirable that the statutory provision authorising a warrantless search procedure be
crafted so as to limit the possibility of a greater limitation of the right to privacy than is
necessitated by the circumstances, which the warrant requirement would otherwise do”
(2). A warrantless search should not be a norm of criminal procedure, Estate Agency
Affairs Board v Auction Alliance (Pty) Ltd 2014 (3) SA 106 (CC) (1). The Con Court in
Gaertner v Minister of Finance 2014 (1) SA 442 (CC) para 69 held that: “A warrant is not
a mere formality. It is a mechanism employed to balance an individual’s right to privacy
with the public interest in compliance with and enforcement of regulatory provisions. A
warrant guarantees that the state must be able, prior to an intrusion, to justify and support
intrusions upon individuals’ privacy under oath before a judicial officer. Further, it governs
the time, place and scope of the search. This softens the intrusion on the right to privacy,
guides the conduct of the inspection, and informs the individual of the legality and limits
of the search. Our history provides evidence of the need to adhere strictly to the warrant
requirement unless there are clear and justifiable reasons for deviation” (2). Students
after ventilating the facts above may arrive at their own conclusion in which case two
points are awarded (2).

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Question 3
(1) X is arrested by the police on suspicion of murder and rape. the offences were
allegedly committed on Friday. X is taken into custody by the police on Sunday
night at 20h00. Discuss the applicable procedure to bring the accused before
court. (10)
An arrested person must, after arrest, be brought to a police station at the earliest
possible convenience (1). The purpose of bringing an arrestee to a police station is to
ensure that he or she is brought into the custody of the South African Police “as soon as
possible”, and that he or she is detained by the police for a period not exceeding 48-
hours (1). Consequently, the accused may not be detained for longer than 48 hours,
unless he or she is brought before a lower court (1).
If an arrestee is not released because no charges are brought against him or her, he or
she may not be detained for longer than 48 hours, unless he or she is brought before a
lower court (1).
The expiry of 48 hours is calculated as follows:

As a general rule, if the 48-hour period expires on any court day before 4 pm (16:00),
then the said period is deemed to expire at 4 pm (16:00) on such court day (1). However,
if the 48-hour period expires on a day which is not a court day, or on any court day after
4 pm (16:00), then the said period is deemed to expire at 4 pm (16:00) on the next court
day (this means that if a person is arrested on a Wednesday evening, the 48-hour period
is deemed to expire the next Monday at 4 pm (16:00) (s 50 (1) (d)) (1).
For the purposes of s 50, a “court day” means a day on which the court in question
normally sits as a court – s 50(2) (1). The police may release certain arrestees even
before the 48-hour period lapses (1).
As for the case in point, the facts do point out the precise time during which X was
arrested or brought to court, that is Sunday night at 20h00. Since Sunday is not a court
day the 48-hour rule should commence on Monday morning (1). In this case, the 48-hour
period must expire on Tuesday at 16:00 (1).
(2) After his first court appearance, X decides to apply for release on bail. Z, the
investigating officer, is of the view that the police enjoy the prerogative to release
the accused on bail, under these circumstances. Critically discuss Z’s stance,
particularly in view of the timing of the expected application, and the charges
faced by X, as alluded to in (1). (10)
An accused who is in custody in respect of any offence, other than an offence referred
to in Part II or Part III of Schedule 2 may, before his or her first appearance in a lower
court, be released on bail in respect of such offence by any police official of or above the
rank of non-commissioned officer, in consultation with the police official charged with the
investigation, if the accused deposits at the police station the sum of money determined
by such police official (2). Police bail can only be granted before the accused appear
before a court of law, this grants the courts direct and exclusive control over release on
bail once the case is on the roll (1). Murder and rape appear under schedule 2 part II of
the CPA (1). This means that police bail can never be possible in this instance (1). Police
bail may not be granted in terms of infrastructure-related offences (1). It has been held
that, since in principle a theoretically innocent person should not be deprived of his
liberty, an application for police bail should – like ordinary bail application – neither be

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frustrated by an excessive amount nor be refused in the absence of substantial cause

for such refusal – MacDonald v Kumalo 1927 EDL 293 (2). It has been suggested that
an action for damages will lie should police bail be refused on malicious grounds (1), or
where the properly authorised official had simply refused to exercise his discretion, Shaw
v Collins (1883) 2 SC 389 (1). Z is mistaken when suggesting that the police could
release X on bail since the crimes X is charged with do not allow for police bail (1).

(3) Discuss the grounds which must be established by the accused in the course of
a bail application, and which in the interests of justice, justify release on bail. (5)
The court shall decide the matter by weighing the interests of justice against the right of
the accused to his or her personal freedom and in particular the prejudice he or she is
likely to suffer if he or she were to be detained in custody, taking into account, where
applicable, the following factors, namely-
(a) the period for which the accused has already been in custody since his or her
arrest (1);
(b) the probable period of detention until the disposal or conclusion of the trial if the
accused is not released on bail (1);
(c) the reason for any delay in the disposal or conclusion of the trial and any fault on
the part of the accused with regard to such delay (1);
(d) any financial loss which the accused may suffer owing to his or her detention (1)
(e) any impediment to the preparation of the accused's defence or any delay in
btaining legal representation which may be brought about by the detention of the
accused (1);
(f) the state of health of the accused (1); or
(g) any other factor which in the opinion of the court should be taken into (1).

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ASSIGNMENT 02

Question 1
(1) ‘An accused is, in principle, entitled to have access to documents in the police
file’. Discuss this statement with reference to case law and include an explanation
for the qualified ‘in principle. (10)
In principle ‘everyone has the right of access to any information held by the state and
any information that is held by another person and that is required for the exercise of
protection of any rights’ (1). This includes access to the content of the police docket or
relevant parts thereof (1). In Shabalala v Attorney-General, Transvaal 1995 (2) SACR
761 (CC) (1) the Con Court provided direction regarding access to police docket:
In general, an accused person should be entitled to have access, at least, to documents
in the police docket which are exculpatory for the accused (or which are prima facie likely
to be helpful to the defence) unless, in very rare cases, the state is able to justify the
refusal of such access on the grounds that it is not justified for the purpose of a fair trial
(1).
Ordinarily, the right to a fair trial would include access to the statements of witnesses
(whether or not the State intends to call such witnesses) and such parts of the contents
of a police docket as are relevant in order to enable an accused person properly to
exercise that right (1), but the prosecution may, in a particular case, be able to justify the
denial of such access on the grounds that it is not justified for the purpose of a fair trial
(1). Considerations to be taken into account are, for example: (i) the simplicity of the
case, either on the law or on the facts or on both; (ii) the degree of particularity furnished
in the indictment or the summary of substantial facts; (iii) the particular furnished
pursuant to section 87 of the CPA and; (iv) the details of the charge, read with such
particulars (1).
The state is entitled to resist a claim by the accused for access to the dossier or to any
particular document in the police docket on the grounds that such access is not justified
for the purpose of enabling the accused to properly exercise his or her right to a fair trial
(1); or on the ground that it has reason to believe that there is a reasonable risk that
access to the relevant document would lead to the disclosure of the identity of an
informer, or might divulge state secrets; or on the grounds that there is a reasonable risk
that such disclosure might lead to the intimidation of witnesses or otherwise prejudice
the ends of justice (1).
Similarly, the Promotion of Access to Information Act allows for the police to refuse
access to a police docket before the commencement of the trial (1), if such disclosure
may prejudice the police investigation or prosecution of the crime, and the alleged
offender, and must refuse disclosure if the access to the police docket concerns certain
bail proceedings (1).

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(2) An inexperienced prosecutor in the lower court formulates a murder charge as

follows: ‘The accused is guilty of a crime in that the accused did intentionally and
unlawfully cause the death of a human being’. In terms of s 84(1), and
notwithstanding ss 86(1) and 88: is the charge formulated in sufficient detail? (10)
Section 84(1) of the CPA states that ‘a charge shall set forth the relevant offence in such
manner and with such particulars as to the time and place at which the offence is alleged
to have been committed and the person, if any, against whom and the property, if any,
in respect of which the offence is alleged to have been committed, as may be reasonably
sufficient to inform the accused of the nature of the charge’ (2). The offence should be
set forth in the charge in such a manner that the accused is sufficiently informed of the
nature of the charge brought against him (1). The section requires that adequate
particulars as to the time and place at which the offence is alleged to have been
committed, the person (if any) against whom and the property (if any) in respect of which
the offence is alleged to have been committed, should be furnished in the charge (1).
With regard to the crime of murder, the offence committed should be mentioned in the
charge, including the elements of the crime and the time and place in which the crime
was committed (1). In terms of the common law offences, the offence must be described
in clear legal terms, and if legal appellation for the offence exists, it must be set forth by
such appellation, or otherwise it should be strictly and accurately described, Neumann
1949 (3) SA 1238 (Spec Crim Ct) (2). With regard to the mentioning of time in the charge,
the mentioning is only essential when time is of essence, however when time is not
relevant the charge is not deficient (1). The place where the crime was committed may
also be of importance to the charge. In such cases failure to mention the place will render
the charge defective (1). Similarly, mental attitude of the accused must be set out clearly
in the charge, for example when the accused is charged with murder it must be averred
that the accused acted with intention and unlawfully or the accused acted negligently
and unlawfully when the charge is that of culpable homicide (2). Since the prosecutor
failed to mention the time and place of the committed crime, the charge formulation is
insufficient (1).
(3) X and Y set out to commit the crime of robbery. They enter a house where they
proceed to rob the occupants of their belongings. During the ensuing robbery X,
unbeknownst to Y, goes into one of the bedrooms where he finds Z hiding, and
proceeds to rape her. Both suspects are, however, arrested separately. Discuss
whether X and Y can be arraigned in the same proceeding. (10)
In terms of section 156 of Criminal Procedure Act, whenever it is alleged in a charge that
two or more persons have committed separate offences at the same place and time, or
at about the same time, and the prosecutor informs the court that any evidence which is
in his opinion admissible at the trial of one of those persons is in his opinion also
admissible at the trial of the person or persons, such persons may be tried jointly for
those offences on that charge (2). If there is evidence in the opinion of the prosecutor
that it is admissible in case of X and Y, both of them may be tried jointly for those offences
on that charge (1).
Further, thus persons who through participation in the same transaction commit different
offences may be jointly charged and tried, for example where a man procures and
furnishes premises in which women carry on prostitution, on the proceeds whereof he
lives, he and they may be charged and tried together, he with living on the proceeds of
prostitution ,and they with carrying on the practise (2). Prior to the enactment of s 156 it
was held that where a passenger was killed as a result of a collision between two motor
cars, there were two separate offences and that joinder of the two drivers was irregular,

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this was held in Meyer 1948(3) SA 144 (T) (2). Therefore section 156 leaves little doubt
that such joinder would no longer be irregular (1). The court must satisfy itself that the
prosecutor’s opinion is bona fide and based on a reasonable interpretation of the rules
of evidence (1). To its end Y and X may be arraigned in the same proceeding (1).

Question 2
(1) Discuss the main requirements of the test for the presence of judicial bias and
state when an application for recusal can be brought. (10)
The requirements of the test for the presence of judicial bias are:
(a) There must be a suspicion that the judicial officer might be, not would be, biased (1).
(b) The suspicion must be that of a reasonable person in the position of the accused (1)
(c) The suspicion must be based on reasonable grounds (1).
(d) The suspicion is one which the reasonable person referred to would, not might, have
held (1).
The default position in the determination of bias is that a judicial officer is presumed to
be partial, until the contrary is proved (1). The criterion for recusal is an objective one. In
other words, the question to be determined is whether a right-thinking observer or litigant
is left with the impression that the accused did not receive a fair trial (1).
The application for recusal of the judicial officer should, if possible, be made at the
commencement of the trial in order to obviate unnecessary complications, such as a
discontinuation of a partly heard trial and the necessity of starting it de novo (2). If
unavoidable, such an application may be made in the course of the trial, Silber 1952 (2)
SA 475 (A) (1). The application must be made in respectful and courteous terms and
must not be wilfully insulting (1).
(2) Discuss the rights and duties of assessors. (15)
(a) Subject to paragraph (b) and (c) below and s 217(3)(b), the decision or finding of the
majority of the members of the court upon any question of fact or upon the question
referred to in paragraph (b), shall be the decision or finding of the court (1), except
when the presiding judge sits with only one assessor, in which case the decision or
finding of the judge shall, in the case of a difference of opinion, be the decision or
finding of the court (1);
(b) If the presiding judge is of the opinion that it would be in the interests of the
administration of justice that the assessor(s) assisting him do not take part in any
decision upon the question whether evidence of any confession or other statement
made by an accused is admissible as evidence against him, the judge alone shall
decide upon such question, and he may for this purpose sit alone (1). It is clear that
the judge may now, in his discretion, together with the assessors determine the
admissibility of a confession or other statement made by the accused (1) – s
145(4)(a) and (b); Ngcobo 1985 (2) SA 319 (W) (1);

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(c) The presiding judge alone shall decide upon any other question of law or upon any
question whether any matter constitutes a question of law or a question of fact, and
he may for this purpose sit alone – s 145(4) (1). An application at the close of the
State’s case for the accused’s discharge in terms of s 174 is one of law, and the
decision is that of the judge alone (1) – Magxwalisa 1984 (2) SA 314 (N) (1);

(d) A judge presiding at a criminal trial in a superior court shall give the reasons for his
decision where he decides any question of law or whether any matter constitutes a
question of law or a question of fact (1). The judge shall also give the reasons for the
decision or finding of the court upon any question of fact or the question referred to
in paragraph (b) above, whether he sits with or without assessors (1). Where the
judge sits with assessors and there is a difference of opinion upon any question of
fact or upon the question referred to in paragraph (b), he shall give the reasons for
the minority decision – s 146 (1).
As soon as an assessor receives information detrimental to the accused which has
not been proved in evidence, he must retire from the case (1) – Matsego 1956 (3)
SA 411 (A) (1). An assessor must show absolute impartiality: His or her expressing
an opinion about a particular witness before the accused has been called to state
his defense, will be grossly irregular (1) – Mayekiso 1996 (1) SACR 510 (C), also
Stone 1976 (2) SA 279 (A) (1).
The function of assessors is limited to the hearing of the trial, and since the trial is
the determination of the matters put in issue and ends with the verdict, the assessors
have no part with the judge in the assessment or the imposition of the sentence (1);
although, according to Hiemstra 367, it is not irregular for the judge to seek the
advice of his assessors in the matter of sentence (1).
(3) The right to a fair trial is expressly mentioned in the Bill of Rights as one of the
most important rights of the Constitution. To this extent, the presiding officer must
conduct the proceedings with the utmost courtesy and fairness, whilst also
ensuring that each party to the proceedings is given equal hearing; and that
decisions are only made on the basis of the evidence presented in court, in terms
of the applicable rules. Discuss this statement critically
An accused ‘s right to a fair trial under section 35(3) of the Constitution embraces a
concept of substantive fairness which is not to be equated with what might have passed
muster in our criminal courts before the Constitution come into force’(Zuma
1995(1)SACR 568(CC). The right to a fair trial embraces more than what is contained in
the list of specific rights identified in section 35(3)(a)-(o) of the Constitution (Veldman v
Director of Public Prosecutions, WLD 2006(2) SACR 319(CC) at [22]-[23]. The section
35(3) rights which surface most pertinently in the course of the trial are the right to be
presumed innocent (section 35(3)(h), the right to adduce and challenge
evidence(35(3)(i) and the right not testify during the proceedings(section 35(3)(h).
The words ‘which includes the right’ preceding the listing of specific rights in
paragraphs(a)to(o) in section 35(3) indicate that such specification is not exhaustive of
what the right to a fair trial comprises(Dzukuda 2000(2) SACR 443(CC)at[9]. It was also
held in Baloyi 2000(1)SACR 81(CC)at[27] that no one may be convicted without a fair
trial, it was also held that the right to a fair trial of the Constitution includes the right to a
prosecutor that acts and is perceived to act without fear, favour or prejudice. Trial
Fairness is not confined to the position of the accused, but extends to society as a whole,
precisely because society has a real interest in the outcome of a case this was held in
Sonday 1995 (1) SA 497(C) 507.

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All the judicial duties that have to be performed in respect of an unrepresented accused
in order to ensure a fair trial were set out and confirmed in Mofokeng 2013(1)SACR
143(FB). However, the Supreme Court of Appeal has warned that a trial court should not
give assistance to an accused to the point of unfairly disadvantaging the prosecution.
The right to a fair trial demands that there should be informed participation by the
unrepresented accused, a Court is therefore required to explain all procedural rights and
options to an unrepresented accused and to do so at every critical stage. To this end ,
the Constitution mandated the Courts to inform promptly of the accused ‘s right to have
a legal representative of their choice, it has to be placed on record that the accused
made a choice which could be detrimental to him even after he was advised.

Question 3
(1) Discuss the correction of a plea of guilty both in terms of the common law and in
terms of statutory law. (15)
The court at any stage of the proceedings under section 112 and before sentence is
passed is in doubt whether the accused is – (i) in law guilty of the offence to which he
has pleaded guilty, or is satisfied that (1), (ii) the accused does not admit an allegation
in the charge (1), or (iii) the accused has incorrectly admitted any such allegation (1), or
(iv) the accused has a valid defence to the charge (1), or (v) the court is of the opinion
for any other reason that the accused’s plea of guilty should not stand (1), the court shall
record a plea of not guilty and require the prosecutor to proceed with the prosecution,
section 113. Where the accused is convicted, the conviction is automatically expunged
(1).
The admissions already made stand as proof of the relevant facts, thus state based on
the facts the must prove the offence and the guilt of the accused for a conviction, Ncube
1981 (3) SA 511 (T) (1). The court must weigh the accused’s admissions and his failure
to testify in order to decide whether all the elements of the offence have been proven,
Mathe 1981 (3) SA 261 (C) (1). The court records the plea of not guilty, simply because
it doubts the guilt of the accused and not because of the probabilities (1). The court must
be in reasonable doubt whether the accused admits an allegation in the charge, or has
correctly admitted such allegation, or is reasonably left in doubt whether the accused
has a valid defence to the charge, Attorney-General, Transvaal v Botha 1993 (2) SACR
587 (A) (1). The reasons why the accused made certain allegation is not relevant when
the court doubts the guilt of the accused, Mokonoto v Renolds NO 2009 (1) SACR 311
(T) (1). Where an accused has pleaded guilty but the court records a plea of not guilty,
the trail such resume before another magistrate, provided that no evidence has been
led, Ndiwe 1988 (3) SA 972 (NC) (1).
Where there is doubt, court should record the plea of not guilty in order to hear the
evidence the accused, Shabalala 1982 (2) SA 123 (T) (1). The recorded plea of not guilty
should be expressed in the front page of the charge sheet, in a manner that illustrate the
changing of the plea, Mugwedi 1988 (2) SA 814 (V) (1). If the court records a plea of not
guilty before evidence is adduced the prosecution shall proceed on the original charge,
unless the prosecutor explicitly indicates otherwise (1).

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(2) If an accused is not discharged at the close of the State’s case, discuss what the
procedure, rules and principles are that apply in respect of the defence
(accused’s) case. (15)
The defence is required to proceed with its case if there is no discharge as provided for
in section 174 of the Act. Various options are available to the accused.
1.1 The passive defence: closing the defence case as a response
The accused has a passive defence right in the sense that he can refuse to testify
in his own defence and can also refuse to call any possible defence witnesses.
The accused has a constitutional right to refuse to testisfy , the defence case can
be closed without any defence evidence having been led. The court after being
addressed by both parties it will deliver a verdict
1.2 Defence address
If the accused intends to adduce defence evidence, he or his legal representative
‘may address the court for the purpose of indicating to the court ,without comment,
what evidence on be behalf of the defence. The accused ‘s right to deliver a
defence address is rarely exercised and hardly ever necessary because the
earlier cross-examination of the state witnesses would in most instances have
disclosed the nature of the defence.
1.3 The active defence right
The active defence right of an accused has two basic components: his
constitutional and statutory right to testify in his own defence and his constitutional
and statutory right call defence witness if any are available. There is nothing that
prevents an accused from combining elements of his active and passive defence
rights. He may for example, refuse to be a witness in his own defence and yet
insist on calling defence witnesses.
1.4 The active defence right and the sequence of defence witnesses
An accused who wishes to testify in his own defence and wants to call one or
more defence witnesses is in terms of section 151 (1)(b) of the Act required in
principle to testify before calling his defence witnesses. However , the court may
‘on good cause shown allow a deviation from this sequence. The purpose of
section 151(1)(b) is to avoid a situation where an accused , having heard his
defence witnesses first , can tailor his testimony to fit theirs. Where an accused
decides to testify in his own defence after having called his defence witnesses,
the court may draw such inference from the accused’s conduct as may be
reasonable in the circumstances.
1.5 Evidence in chief of defence witnesses
All defence witnesses, including the accused as a defence witness give evidence
in chief in terms of the process identified in terms of section 151. An accused who
wishes to testify from the dock and not the witness-box , should be permitted to
do so, held in (Tsane 1978 (4)SA 161).

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1.6 Cross-examination of defence witnesses by prosecution

In terms of section 166(1) of the Act a prosecutor may cross-examine any
defence witness, including an accused, called on behalf of the defence. Such
cross examination must take place in terms of section 151. The fact that the
legal representative of the accused failed to object to rude, hectoring and
unreasonable cross-examination by the Prosecutor does not absolve the trial
court from its duty to intervene in order to secure a fair trial. Where a party has
more than one legal representative, only one of them would be allowed to
cross-examine a particular witness.
1.7 Re-examination of defence witnesses
All defence witnesses, including an accused who has testified in his own
defence can be taken through re-examination if necessary. Such examination
takes place in terms of section 151

Assignment 03 – Semester 2

Each statement is either true or false.

Note: All references to “the Act” or to “the CPA” are to the Criminal Procedure Act 51 of 1977.
All references to “the CJA” are to the Child Justice Act 75 of 2008.

1.1.2 Assignment questions

1. The court is not entitled to postpone a case to consider the verdict.-FALSE

2. Legislation expressly identifies the offences which are the subject of competent verdicts.-
TRUE
3. Public violence is a competent verdict to a charge of murder.-TRUE
4. Sentencing is the imposition of a sentence by the prosecution, on an offender.-FALSE
5. Sentence is any measure which is applied by the court to the person convicted of a crime,
and which finalises the case.-TRUE
6. Minimum In order to be fair, punishment must only suit society.-FALSE
7. Minimum sentences are applicable to all crimes. - FALSE
8. In general, youth is regarded as an aggravating factor in sentencing.-FALSE
9. The term ‘forms of imprisonment’ essentially depicts separate kinds of imprisonment rather
than the description of terms of imprisonment. - FALSE
10. The court must make enquiries into the means of the offender to pay the fine.-TRUE
11. Both reviews and appeals are fundamentally aimed at setting aside convictions and
sentences. -TRUE

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12. Automatic review is of English law origin.-FALSE

13. Extraordinary review proceedings apply in respect of criminal proceedings which are not
ordinarily subject to automatic review. - TRUE
14. Criminal proceedings may not be reviewed after conviction but before sentencing.-FALSE
15. Review may not be instituted at the instance of the prosecution.-FALSE
16. The high court should, generally use its inherent review powers to interfere in lower courts
in respect of unterminated criminal proceedings against.-FALSE
17. A declaratory order should only be granted in respect of a dispute between parties.-FALSE
18. Appeal may be noted before the finalisation of the criminal trial, in order to right patent
wrongs in the proceedings.-TRUE
19. A court of appeal does not possess the inherent power to correct the sentences of lower
courts.-FALSE
20. In an appeal on a question of law the question is not whether the court of appeal could
have made the same finding but whether the trial court would have made such a finding.-
TRUE
21. The Criminal Procedure Act does not, in general, allow the prosecution to appeal against a
decision on the merits or facts of a case.-FALSE
22. The State President’s power to pardon offenders is Constitutionally mandated.-TRUE
23. Expungement takes place in one of three ways: automatically, on application or when a
certain period has lapsed.-TRUE
24. Presidential clemency is never subject to judicial review.- FALSE
25. The essence of Presidential clemency and parole is that both processes are restorative in
nature.-TRUE

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2018- SEMESTER 1 – ASSIGNMENT 1

Question 1

The right to a fair trial requires that criminal trials be conducted in accordance with the notions of
basic fairness and justice. Discuss the right to a fair trial in the context of

i. the presumption of innocence and legal guilt (15)

i. The presumption of innocence and legal guilt

Firstly it is important to note that the criminal procedure does NOT deal with the
detection, investigation and prosecution of criminals but of suspects and accused
persons. The term suspect generally refers to a person who has not yet been
charged whilst the term accused refers to a person who has been charged.

Due to the presumption of innocence every person is regarded as innocent until

properly convicted by a court of law. The adverb “properly” involves compliance with
the provisions of the rules of evidence and criminal procedure. A conviction is an
objective and impartial official pronouncement that a person has been proved
legally guilty by the State (prosecution) in a properly conducted trial, in accordance
with the principle of legality, i.e. in a trial where the State obeyed the rules of
criminal law, criminal procedure, evidence and the Constitution. A person may in the
public’s subjective view be factually or morally guilty of a crime, but that does not
say that he will or can be proved to be legally guilty.

In a state under the rule of law (Rechtstaat), only legal guilt counts; to “convict” a
person in any other way may amount to vigilantism, mob trials and even anarchy. In
order to obtain a conviction, the prosecution must prove the accused’s guilt beyond
a reasonable doubt. The onus or burden of proof rests on the prosecution because
of the above-mentioned presumption of innocence regarding the accused. This
means that an accused person does not have to prove that he is innocent. The
prosecution must cover adequately every substantive element of the crime as
defined in criminal law and which the accused is alleged in the charge
sheet/indictment to have perpetrated, by presenting concrete and admissible
evidence in order to prove prima facie that the accused is guilty. If but a single
element is not proved by the prosecution beyond a reasonable doubt, the accused
can in no way be convicted and may in fact be discharged at the end of the state’s
case, without even being required to proceed with the defence case.

If the State does succeed in proving a prima facie case and the accused does
nothing to disturb that case, the prima facie proof may “harden” into proof beyond
reasonable doubt and the accused may be convicted – simply because there is
nothing which reasonably produces a doubt in the court’s mind about the guilt of the
accused on each and every element of the alleged crime. If, on the other hand, the
accused can make the court doubt reasonably that one (or more) of the required
elements has been proved, he must be acquitted. The accused can raise a
reasonable doubt through cross-examining a State witness, objecting to the
admissibility of certain evidence, producing his own witness(s), or testifying himself.

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If there is a reasonable doubt that every single element of the offence has been
proved, the accused gets the benefit of that doubt. It is not even necessary for the
court to believe the accused. Neither the prevalence nor the offensiveness of the
alleged crime (rape, murder, etc.) can be allowed to disturb, replace or detract from
the presumption of innocence. If this were not so, the ubiquity and ugliness
argument could be used in relation to murder, rape, carjacking, housebreaking,
drug-smuggling, corruption … the list is unfortunately almost endless, and nothing
would be left of the presumption of innocence, save, perhaps, for its relic status as
a doughty defender of rights in the most trivial cases. )

ii. the right to silence, including the privilege against self-incrimination (15)

Also related to the presumption of innocence is the rule that an accused can never be forced to
testify; he has a right to silence, which is also called his privilege against self- incrimination or his
right to a passive defence. An accused can remain silent even if his answers would not be self-
incriminating. This applies to the pre-trial stage, the trial phase and also the sentencing stage.
Accordingly, the Constitution guarantees the right of every arrestee to remain silent and not to be
compelled to make a confession or admission which could be used in evidence against him or
her (s 35 (1)(c), as well as the right of every accused to remain silent and not testify during the
proceedings.

The accused is a full legal subject, and as such he is entitled to participate in his trial according to
his own autonomous decisions and to be assisted, if he so wishes, by a legal representative. If he
is unrepresented, he should at all crucial decision-making or option- choosing stages in the
process be informed of his rights and options, as well as their implications. His position as full
legal subject in the modern criminal process also implies that he cannot be tried if he is mentally
unable to understand enough to participate meaningfully and to communicate with his lawyer. If a
person has certain rights, obviously he should not be penalized for exercising those rights,
otherwise the rights in reality amount to nothing at best and to liabilities or traps at the worst. A
person who exercises his right to silence at his trial should accordingly not be penalized for the
exercise of the rights as such; no adverse inference should be drawn against his decision not to
testify, for two reasons: first, no such inference could be drawn, for there may be a multitude of
reasons why he does not wish to testify (he may think the State’s case is so weak that it does not
merit an answer; he may no trust the court or the legal system, or be afraid or ignorant as to
strategy; or he may simply want to exercise the right to silence about which he has been
informed); secondly, no such inference could logically be drawn to fill gaps in the State case: if an
element of a crime (eg. identity in the case of robbery) has not been covered by prima facie proof,
the nothingness of the accused’s silence cannot logically fill that gap in the State’s case. The
foregoing, however, does not mean that an accused’s defence cannot be severely or fatally
damaged by his silence. It can occur as follows: If the State has proved a prima facie case
against the accused, in other words it has covered each and every element of the crime (as
defined by substantive criminal law) by evidence (whether verbal or documentary, lay or expert,
direct or circumstantial) and the accused has not raised a reasonable doubt on any of these
elements (eg. by shaking a state witness in cross-examination), and he then does not testify (i.e,
he does not put his innocent version before the court), the court as a matter of fact only has the
uncontroverted State evidence to go on; the prima facie proof hardens into sufficient evidence for
a conviction.

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Please note, however, that his happens simply because the defence did not “disturb” the State’s case; the
silence of the defence did not add anything positively to the State’s case. The inference is not really an
inference in the strict sense of the word, but simply an observation or conclusion that the accused could not
or would not disturb the State’s prima facie case, with the result that the latter stands uncontroverted and
becomes proof beyond a reasonable doubt.

Question 2

In National Society for the Prevention of Cruelty to Animals v Minister of Justice and
Constitutional Development and Another (CCT1/16) [2016] ZACC 46 the National Prosecuting
Authority (NPA) disputed the right of the National Society for the Prevention of Cruelty to
Animals (NSPCA) to conduct a private prosecution on the basis that the NSPCA is not a natural
person in the context of section 7(1)(a) of the Criminal Procedure Act (CPA) 51 of 1977. The
latter stipulates that “any private person who proves some substantial and peculiar interest in
the issue of the trial arising out of some injury which he individually suffered in consequence of
the commission of the said offence … may … either in person or by a legal representative,
institute and conduct a prosecution in respect of such offence in any court competent to try that
offence.” In the same vein, section 6(2)(e) of the Societies for the Prevention of Cruelty to
Animals Act (SPCA Act) 169 of 1993 (read with s 8 of the CPA) essentially empowers the
NSPCA to institute legal proceedings in respect of perceived acts of cruelty to animals.

Study and discuss the above case in respect of the following aspects: The court’s finding
regarding

i. the statutory scheme of the prosecutorial landscape (10)

According to the court, the power of prosecution in the current legal set-up assumes three forms, namely:
State (Public), statutory, and on the basis of a certificate nolle prosequi. Hence, the legal framework for
prosecution is essentially premised on the Constitution, the National Prosecuting Authority Act (NPA Act)
and the Criminal Procedure Act (CPA).

Invariably, public prosecution is essentially governed by the Constitution and the

NPA Act. To this extent, s 179 of the Constitution provides for a “single national
prosecuting authority in the Republic. The NPA is vested with the power to institute
criminal proceedings on behalf of the State and by extension, the general public.

The other two forms of prosecution are not necessarily instituted on behalf of the state. Hence, they
are designated as “private prosecutions”. In terms of this delineation, the provisions of the NPA Act
are duly complemented by the CPA. Thus, s 7 governs prosecution in respect of certificate nolle
prosequi whereas prosecution by statutory right is confined to s 8. These provisions constitute
exceptions to the general principle that criminal prosecutions are conducted for the public interest
and in the name of the state. Section 8 of the CPA requires that the right to private prosecution be
“expressly conferred”.

ii. section 6(2)(e) of the SPCA Act 169 of 1993 (read with s 8 of the CPA) (2)

The court held [at par 65] that s 6 (2) (e) of the Societies for the Prevention of Cruelty to Animals Act
(SPCA Act) 169 of 1993 (read with s 8 of the CPA) conferred the statutory power of prosecution on
the NSPCA.

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iii. the constitutionality or otherwise of section 7(1)(a) of the CPA (3)

Based on the finding in (2), the court found it unnecessary to make a ruling on the
constitutionality of s 7 (1) (a) of the CPA. Consequently, the court left open the question of
constitutionality without necessarily preventing any future challenges thereto.

Question 3

Extradition represents one of the means by which an alleged criminal may be brought before a
court of law. Generally, states are not compelled to extradite alleged criminals. Extradition
requires an agreement between the sending state (namely, the country in which the alleged
offender is currently present) and the receiving state (namely, the country in which the alleged
offence was committed). Extradition treaties usually contain particular corresponding principles.
In Minister of Home Affairs and Others v Tsebe and Others 2012 (5) SA 467 (CC), the
Constitutional Court was tasked with deciding the constitutionality of two similar incidences of
extradition, which involved Botswanan nationals. Some of the most important principles of
extradition that are relevant to South African extradition legislation and the Constitution were
discussed and decided in this regard. Answer the following questions:

i. Explain the term “extraditable offence” in the context of the Extradition Act 67 of 1962. (2)
Section 1 of the Extradition Act 67 of 1962 defines extraditable offence as any offence which is
punishable with a sentence of imprisonment or other form of deprivation of liberty for a period of six
months or more in terms of the law of the Republic and of the foreign State concerned.

ii. Name the crime with which the accused was charged, and discuss whether it falls within
the ambit of extraditable offences as set out in Chapter 7 of the Criminal Procedure
Handbook. (3)
Murder. The crime of murder is an indictable offence, as it is regarded as criminal offence in both
the Republics of South Africa and Botswana.

iii. Name the competent sentence for the crime mentioned in item ii in the receiving state, and
discuss whether the same sentence is competent in South African courts. (3)
In terms of s 203 of the Penal Code of Botswana, any person convicted of murder shall be
sentenced to death, unless extenuating circumstances are found to exist. The South African
Constitution (s 11) expressly guarantees the right to life, which is encapsulated in the right not to be
“punished in a cruel, inhuman or degrading way” (s 12 (1) (e).

iv. Explain in one sentence the circumstances in terms of the Extradition Act, 1962, under
which the Minister of Justice may refuse extradition, with specific reference to the
seriousness of the offence. (1)
The Minister of Justice may refuse to surrender a suspect if he or she is convinced that the offence
in respect of which he or she is being sought is of a trivial nature.

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v. Section 32(2) of the Immigration Act 13 of 2002 states: “Any illegal foreigner shall be
deported.” In the same vein, one of the submissions against the respondents was that they
had illegally entered the Republic of South Africa, were illegal immigrants and were,
therefore, not entitled to extradition protection. What was the court’s finding in this regard?
(2)

The Court held [at par 59], that the provision of the Immigration Act relating to the obligation
to deport an illegal foreigner had, as a matter of law to be read consistently with the
Constitution. To this extent, the provision could not be read to require the deportation or
extradition of a person in circumstances in which the deportation would essentially be in
violation of the Constitution.

vi. Section 7(2) of the Constitution enjoins the state to “respect, protect, promote and fulfil the
rights in the Bill of Rights.” Briefly discuss this provision in the context of the court’s finding
regarding the extradition of the respondents. Your answer should contain references to the
protections of the Bill of Rights that are discussed in the finding, without necessarily
quoting them verbatim. (6)
(i) The Court concluded [at par 74], that in terms of s 7(2) of the Constitution the government
is under an obligation not to deport or extradite the respondents, or in any way to transfer
them from South Africa to Botswana to stand trial for the alleged murder in the absence of
the requisite assurance. The deportation or extradition of the respondents without the requisite
assurance (namely, to be subjected to the possibility of a death sentence) would be a breach of the
government’s obligations in terms of s 7(2). Thus, the values of the Constitution and the
respondents’ right to life, right to human dignity and right not to be subjected to treatment or
punishment that is cruel, inhuman or degrading would have been seriously violated.

vii. Owing to the impasse relating to the question of extradition, the Justice Minister of the
receiving state recommended [at par 10] that the respondent be charged and tried for the
alleged offence in the sending state. What was the court’s finding in this regard? (2)
The Court maintained [at par 60], that a South African court had no jurisdiction to adjudicate over
certain offences committed outside the Republic.

viii. Briefly discuss the content of the Extradition Treaty of 1969 between the Republics of
Botswana and South Africa. (5)
In terms of the Extradition Treaty (1969) between South Africa and Botswana, the signatories agreed that
they would not be compelled to extradite any person for a crime which is punishable by death. The treaty
in question is still in operation. Article 6 thereof reads:

“Capital Punishment

Extradition may be refused if under the law of the requesting party the offence for which extradition is
requested is punishable by death and if the death penalty is not provided for such offence by the law of the
requested party.”

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ix. In your view, would the government of the Republic of South Africa have been compelled
to extradite the respondents in the light of the content of the treaty? (2)
The Extradition Treaty between the two states was clear and unambiguous. Therefore, the
government of the RSA would not have been under any compulsion to respond to the request for
extradition.

x. The court alluded to another international instrument other than the Extradition Treaty
referred to in item viii that vitiated the extradition of the respondents. Discuss this aspect
briefly. (5)
(ii) South Africa and Botswana and certain other SADC countries are also parties to the
Protocol on Extradition concluded under the auspices of the SADC (SADC Extradition
Protocol). Article 5(c) of the Protocol allows a State which is being requested to extradite a
person to refuse to do so —

“if the offence for which extradition is requested carries a death penalty under the law of the
Requesting State, unless that State gives such assurance, as the Requested State considers
sufficient that the death penalty will not be imposed or, if imposed, will not be carried out.”

xi. Having perused the judgment and the procedural and constitutional aspects dealt with
dealt with therein, briefly explain

a) why, if at all, you agree or disagree with the court’s finding

b) whether you feel that the court’s decision served the interests of justice in the bigger
scheme of things (2)

c) whether your answer in ii is affected, if at all, by the nature and the seriousness of the
crime with which the respondents were charged in the first place (5)

FOR THE ABOVE

NB: There is no correct or incorrect answer to the question above, however, the
following aspects must be taken into consideration:

the student’s answer must reflect that he or she understands the issues at hand by
answering, for example, “I agree because… the decision complies with the general principles
of extradition”, “I disagree because … the decision does not take into account the nature and
the seriousness of the offences charged…” etc.

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Question 4

The President of the Republic of South Africa, Mr Truly Popular, summarily suspends and
removes the National Director of Public Prosecutions (NDPP), Mr Do Goodness, for the
following reasons: “insubordination” and “arrogance”, “unqualified” for the post and, in addition,
that “as he serves at the pleasure of the President and, therefore, the latter can summarily
remove him from his office for any reason, even before the NDPP’s term of office expires”. Is
the removal of the NDPP by the President, Mr Popular, just? Discuss this question with specific
reference to the following aspects:

i. Who appoints the NDPP? (1)

The State President appoints the NDPP

ii. What are the qualifications for appointment as NDPP? Name two. (2)
The NDPP must possess the academic qualifications that which entitle him or her to practice in all the courts
of the Republic. He or she must also be a fit and proper person with due regard to his or her experience,
conscientiousness and integrity. He or she must be a South African citizen.

iii. What is the term of office of the NDPP? (1)

The NDPP may hold office for an unrenewable period of 10 years

iv. Subject to the provisions of section 12 of the National Prosecuting Authority (NPA) Act 32
of 1998, under which circumstances may the NDPP be suspended and removed from
office? (4)
v. In terms of section 12 of the National Prosecuting Authority (NPA) Act 32 of 1998, the NDPP be
suspended and removed from office under the following circumstances:

a) for misconduct;
b) on account of continued ill-health;
c) on account of incapacity to carry out his or her duties of office efficiently;
d) or on account thereof that he or she is no longer a fit and proper person to hold the office
concerned.

vi. Comment briefly on whether the removal of Mr Do Goodness was, considering your
discussion of item iv and the facts above, procedurally and constitutionally correct. (2)
Based on the facts presented in the narrative, the removal of Mr Do Goodness was procedurally
and constitutionally incorrect. Firstly, the State President, Mr Popular cannot remove the NDPP
summarily. Such removal must be preceded by a provisional suspension from duty, which is
followed by an inquiry into the fitness of the NDPP to hold office.

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vii. Comment briefly on the appointment of the NDPP in terms of section 9 of the NPA Act 32
of 1998 with reference to the case Democratic Alliance v President of the Republic of
South Africa and Others 2012 (1) SA 417 (SCA). (5)

In Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA
417 (SCA) the court emphasised that the national legislation which relates to the
appointment of the NDPP had to ensure that the NPA exercises its functions
without fear, favour or prejudice. The absence of such intent or spirit had the
potential to result in the failure of the NDPP if these aspects were not taken into
consideration. Thus, section 9 (1)
(a) of the NPA Act must be construed to achieve that purpose. It was further held [par 108],
that the President, in considering the appointment of an NDPP, must at the very least have
regard to relevant factors that are brought to his knowledge, or that can reasonably be
ascertained by him

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Assignment 02 – Semester 1

Question 1

1. Section 60(11B)(c) of the Criminal Procedure Act (CPA) 51 of 1977 states: “The record of
the bail proceedings … shall form part of the record of the trial of the accused following
upon such bail proceedings: Provided that if the accused elects to testify during the course
of the bail proceedings the court must inform him or her of the fact that anything he or she
says, may be used against him or her at his or her trial and such evidence becomes
admissible in any subsequent proceedings.”
Discuss this statement with reference to the case S v Agliotti 2012 (1) SACR 559 (GSJ) in
respect of the following aspects:

i. Whether the requisite warning in terms of section 60(11B)(c) may be relayed by the
accused’s legal representative. (4)
Referring to the judgment in S v Sejaphale 2000 (1) SACR 603 (T), the court held [at par 26], that it
is the duty of the court to warn the accused about the content of s 60(11B)(c). The contention that
the accused is legally represented does not absolve the court off this duty. Thus, reliance on the
fact that the accused had been informed about the content of the provision essentially amounts to
non-compliance with the requirements of s 60 (11B) (c).

ii. The wording in section 60(11B)(c) ostensibly refers to the provision of a warning to
an accused who presents viva voce evidence in the course of a bail application.
Discuss the court’s finding regarding oral evidence and the presentation of an
affidavit in the context of section 60(11B)(c). (3)
i. The court re-iterated [at par 39] the view that it is the duty of the court to warn the accused of
the consequences of the provisions of s 60(11B) (c), right from the beginning of the bail
proceedings. The warning is essentially intended to ensure that the accused makes an
informed decision on whether to testify orally or to present an affidavit for his or her
application. However, the warning in terms of s 60(11B) (c) applies, and has to be provided
to the accused regardless of his or her choice of the presentation of evidence.

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2. The interests of justice do not justify the release of an accused person on bail if the
likelihood exists that he or she might, if so released, endanger the safety of the public or
commit a Schedule I offence in the process. Discuss the factors that the court is required
to take into consideration when assessing the above-mentioned aspect. (8)
1. The court is required to take into account the following factors:

(a) the degree of violence towards others implicit in the charge against the accused;
(b) any threat of violence which the accused may have made to any person;
(c) any resentment the accused is alleged to harbor against any person;
(d) any disposition to violence on the part of the accused, as is evident from his or her
past conduct;
(e) any disposition of the accused to commit offences referred to in Schedule 1, as is
evident from his or her past conduct;
(f) the prevalence of a particular type of offence;
(g) any evidence that the accused previously committed an offence referred to in schedule
1 while released on bail; or any other factor which in the opinion of the court should be
taken into account

Question 2

Captain B, the investigating officer in a murder case, receives the registration number of a
motor vehicle that was seen near the murder scene at the time that the incident took place.
Captain B decides to follow up on the information and visits the home address of Y, the
registered owner of the motor vehicle.

1. Discuss the powers of Captain B in terms of sections 26 and 27 of the CPA when he
arrives at Y’s home. (7)

1. Sections 26 and 27 of the CPA essentially govern the behaviour of members of the police
who enter premises in order to conduct an interrogation.

Section 14 of the Constitution recognises the right to privacy of every individual,

which includes the right not to have:

(a) their person or home searched;

(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.

However, there may be instances in which the interests of justice necessitate the
infringement of this right.

Section 26 authorises a police official, in the course of the investigation of an

offence or alleged offence to enter such premises without a warrant for the purpose
of interrogating such person and obtaining a statement from him.

The police official, in these circumstances must reasonably suspect that a person
who may furnish information with regard to any such offence is on any premises.

A further proviso is, however, that a police official may not enter any private dwelling
without the consent of the occupier thereof.

Section 27 provides for the situation where the occupier of the dwelling refuses the

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police entry onto the premises, which may also hamper the police investigation.

Section 27(1) provides that a police official who may lawfully enter any premises
under s 26 may use such force as may be reasonably necessary to overcome any
resistance against such entry, including the breaking of any door or window of such
premises.

An additional proviso to the subsection provides, further, that such a police official
shall first audibly demand admission to the premises and also state the purpose for
which he seeks to enter such premises.
For the purposes of interpreting s 27 (1), it is worthwhile to note that the CPA (in s
1) gives a wide definition of the word ‘premises’. The result thereof is that ‘premises’
refers, not only to land or buildings, but also to vehicles, ships and aircraft.

2. Y admits that he visited his mother, who lives next to the premises where the murder took
place. However, Y is not very cooperative and he informs Captain B that he does not want
to get involved in the matter. He also refuses to make a statement. Captain B is convinced
that Y has information that may assist him in solving the case. What steps may Captain B
take to obtain information from Y? Discuss in detail.

Section 205 is specially designed to compel a potential witness to reveal his knowledge of
an alleged crime, which he refuses to disclose to the police.

Such person may, upon request by the DPP or prosecutor, be compelled to appear
for examination before a DPP or public prosecutor or any other judge or magistrate.

These provisions may only kick in after authorisation by a judge, a regional court
magistrate or a magistrate upon the request of a DPP or public prosecutor.

If, however, such person furnishes that information to the satisfaction of the director
of public prosecutions or public prosecutor concerned prior to the date on which he
is required to appear before the judicial official mentioned, he shall under no further
obligation to appear before such judicial official – s 205(1).

Such examination can be conducted privately at any place designated by the

judicial official s 205(3) and need not be held in court.

The witness is entitled to legal representation – Smith v Van Niekerk 1976 (4) SA 304 (E);
Heyman 1966 (4) SA 598 (A).

As to the facts in point, therefore, B may successfully invoke the provisions of s 205 in order to obtain
information from Y.

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Question 3

1. X, a police official, forcibly opens the cellar of the accused, Y’s, house without Y’s consent
and without a warrant to search. X then searches the cellar and finds a bag full of Mandrax
tablets, 100 kg of dagga and documents addressed to Y’s lawyer. During the trial, Y argues
that the search was illegal because X did not act upon a warrant, and in accordance to the
provisions of the CPA, and that X’s evidence relating to the dependence-producing
substances and the documents must be excluded as evidence because it was obtained
unlawfully. The prosecution argues that X acted lawfully and that the court must allow X’s
evidence.

Discuss, with reference to case law and the appropriate provisions of the CPA, whether the
argument of Y or that of the state should be accepted by the court. Your answer must also
reflect the classes of articles that are susceptible to seizure. (15)

1. In terms of s 20 of the CPA the following articles are susceptible to seizure during a search:

1) Articles which are concerned in or are on reasonable grounds believed to be

concerned in the commission or suspected commission of an offence, whether within
the Republic or elsewhere;
2) Articles which may afford evidence of the commission or suspected commission of an
offence, whether within the Republic or elsewhere; or
3) Articles which are intended to be used or are on reasonable grounds believed to be
intended to be used in the commission of an offence.

Generally, only an article or document falling into one of the abovementioned

categories may be seized by the state.

However, articles or documents which are privileged and in respect of which the
holder of the privilege has not yet relinquished his privilege may not be seized.

Although it is desirable and preferable that a search should be conducted in

accordance with a search warrant, it is conceivable that circumstances may arise
where the delay in obtaining such warrant would defeat the object of the search.

In terms of s 22(a) a police official may search any person, container or premises for
the purpose of seizing any article referred to in s 20, if the police official believes, on
reasonable grounds,
1) That a search warrant will be issued to him under s 21(1)(a) if he applies for such
warrant; and

2) That the delay in obtaining such warrant would defeat the object of the search.

The items which were seized by X, the policeman, in our set of facts, conform
to those referred to in s 20. The possession of Mandrax and Dagga is
manifestly illegal and the police need to act swiftly and decisively upon
information of the possession of such. On the other hand, they are also very
easy to dispose of when the perpetrator does not want to be caught in
possession. A notable means of destroying such evidence would be to flush it
down the toilet.
X, therefore, acted within the confines of his powers in seizing the drugs from Y’s cellar.
The only aspect which will probably present problems would be the privileged documents
which were also seized.

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2. Z, a policeman on duty, sees X drinking beer in public and wishes to arrest him. X runs
into a house and is pursued by Z, who arrests him at the foot of the stairs. W and Y attempt
to rescue X from Z and are subsequently charged with the offence of attempting to defeat
the course of justice. Discuss the legality or otherwise of the actions of both parties.
(5)
Section 48 of the CPA authorises a peace officer or private person who is authorized by law to arrest
another in respect of any offence to enter such premises by force in order to effect an arrest.

The requirements which have to be satisfied by the arrestor are that:

(i) The arrestor must know or reasonably suspect such other person is on the premises.
The arrestor must first audibly demand entry into such premises and state the purpose for which he seeks
entry and fail to gain entry, before using force to enter the premises.

Question 4

Discuss the constitutionality of the fact that an accused can theoretically be found guilty on a
charge sheet that does not disclose an offence. Refer to relevant case law and statutory
provisions in your answer. [10]

Section 84(1) of the CPA sets out the requirements with which a charge should comply. In
short, this section provides that the relevant offence should be set forth in the charge in
such a manner that the accused is sufficiently informed of the nature of the charge brought
against him. In the same vein s 35 (3) (a) of the Constitution requires the accused to be
informed of the charge with sufficient detail to answer it.

Briefly, it can be said that all the elements of the offence should be mentioned in the
charge, or to put it differently, that the charge should disclose an offence. Section 84(1)
specifically requires that sufficient particulars as to the time and place at which the offence
is alleged to have been committed, the person (if any) against whom and the property (if
any) in respect of which the offence is alleged to have been committed, should be
furnished in the charge.

Compliance with the foregoing requirements of a charge can be practically demonstrated

by referring to a typical charge of murder. (In the High Court a charge sheet is referred to
as an indictment.) Such a charge normally reads as follows:
‘That the accused is guilty of the crime of murder in that on or about 1 August 2007 and at
or near Sunnyside in the district of Pretoria, the accused did intentionally and unlawfully kill
John Smith, an adult male.’

Particulars furnished, are:

1. The name of the offence for which the accused is indicted (murder);
2. All the elements of the crime murder (intention, unlawfulness, killing of another human
being);
3. The time, and place where the offence was allegedly committed; and
4. The person against whom the offence was allegedly committed.

With regard to averments as to the time at which the offence is alleged to have been
committed, s 92(1)(c) provides that if time is not of the essence of the offence, an
indictment is not necessarily deficient as a result of failure to state the time at which the

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offence was committed. If the time of the offence is indeed mentioned, but it is proved that
the act or offence was committed on any other day or time not more than three months
before or after the day or period alleged, such proof will be taken to support such
allegation as to the time of the offence, provided that time is not of the essence of the
offence – s 92(2).

The place where the crime was committed may also be of the essence of an offence. For
example, some offences can be committed only in a public place, eg negligent driving of a
motor vehicle (which offence can take place only on a public road). In such a case a
charge is defective if it does not allege that the offence was committed in such a place.

In S v Rautenbach 1991 the court held that the content of charge sheets should be kept as
simple as possible. In S v Pillay and Others 1975 (1) SA 919 (N) the court held that the
purpose of the charge sheet was:

'to inform the accused in clear and unmistakable language what the charge is or
what the charges are which he has to meet. It must not be framed in such a way that an
accused person has to guess or puzzle out by piecing sections of the indictment or
portions of sections together what the real charge is which the [prosecution] intends to lay
against him.'

A charge sheet is valid if it sets out the particulars of the offence with which the accused is
charged. It is not expected of the prosecution to specify on the charge sheet, the penal
consequences of a conviction on the offence charged. However, the prosecution is
required to specify whether it will seek to prove aggravating circumstances, especially on
charges of murder and housebreaking with intent to commit an offence.

In terms of s 88 of the CPA:

‘Where a charge is defective for the want of an averment which is an essential ingredient
of the relevant offence, the defect shall, unless brought to the notice of the court before
judgment, be cured by evidence at the trial proving the matter which should have been
averred.’

This means that the accused can now be found guilty even though the indictment does not
disclose an offence, as long as the evidence proves the offence.

The following comments concerning this section are noteworthy:

(1) The language of the section indicates that, at the very least, the offence with which the
accused is charged should be named in the indictment – Mcwera 1960 (1) PH H43 (N). If
the prosecutor wants to charge the accused with theft, he should, it is submitted, at the very
least use the word ‘theft’ in the indictment. Where a statutory offence is alleged, the
number of the section should at least be described accurately if the prosecutor wants to rely
on s 88.

(2) Even though an accused may now be convicted upon an indictment which does not
disclose an offence, the prosecutor should exercise caution by framing the indictment in
such terms that it does disclose an offence. If he fails to do so the accused can before
pleading raise an exception against the charge.

(3) If the accused before judgment brings the want of averment to the notice of the court and
the court then refuses to order the charge to be amended, the rule in Herschel’s case still
applies, ie the accused may rely upon the defect on appeal, if he has been convicted by the

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trial court – GabaI 1981 (3) SA 745 (O).

Question 5

The rights and duties of assessors are related to whether the question is one of fact or law.
Discuss the difference between the two and indicate whether the decision of an assessor is
determinative in either case when his or her opinion conflicts with that of the presiding officer.
[10]

Subject to paragraph (2) and (3) below and s 217(3)(b), the decision or finding of the
majority of the members of the court upon any question of fact or upon the question
referred to in paragraph (2), shall be the decision or finding of the court, except when the
presiding judge sits with only one assessor, in which case the decision or finding of the
judge shall, in the case of a difference of opinion, be the decision or finding of the court

If the presiding judge is of the opinion that it would be in the interests of the administration
of justice that the assessor(s) assisting him do not take part in any decision upon the
question whether evidence of any confession or other statement made by an accused is
admissible as evidence against him, the judge alone shall decide upon such question, and
he may for this purpose sit alone. It is clear that the judge may now, in his discretion,
together with the assessors determine the admissibility of a confession or other statement
made by the accused – s 145(4)(a) and (b); Ngcobo 1985 (2) SA 319 (W).

The presiding judge alone shall decide upon any other question of law or upon any
question whether any matter constitutes a question of law or a question of fact, and he
may for this purpose sit alone – s 145(4). An application at the close of the State’s case for
the accused’s discharge in terms of s 174 is one of law, and the decision is that of the
judge alone – Magxwalisa 1984 (2) SA 314 (N).

A judge presiding at a criminal trial in a superior court shall give the reasons for his decision where
he decides any question of law or whether any matter constitutes a question of law or a question of
fact. The judge shall also give the reasons for the decision or finding of the court upon any question
of fact or the question referred to in paragraph (2) above, whether he sits with or without assessors.
Where the judge sits with assessors and there is a difference of opinion upon any question of fact
or upon the question referred to in paragraph (2), he shall give the reasons for the minority decision
– s 146.

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Question 6

In essence, section 112 of the CPA presents a wonderful loophole for the state to close as many
cases as possible and to secure a positive conviction rate. It is, however, unconstitutional in that
the accused never has his or her “day in court”, so to speak. Discuss this statement in the light
of the right to a fair trial and of the court’s duty concerning the pursuit of truth. [10]

The right to a fair trial, as encapsulated in s 35 (3) of the Constitution, encompasses a

much more comprehensive concept of fairness, which is not to be equated with the
principle as it was applied during the pre-Constitutional era _ Zuma 1995 (1) SACR 568
(CC). in the same vein, the right to a fair trial embraces more than the list of provisions
specified in s 35 (3) (a) – (o) of the Constitution. Included herein are the right to be
presumed innocent (s 35 (3) (h); the right to adduce and challenge evidence (s 35 (3) (i);
and the right to testify during proceedings (s 35 (3) (h).

In Dzukuda 2000 (2) SACR 443 (CC) [par 11] that:

‘It would be imprudent, even if it were possible, in a particular case concerning the right to
a fair trial, to attempt a comprehensive exposition thereof. In what follows, no more is
intended to be said about this particular right than is necessary to decide the case at hand.
At the heart of the right to a fair criminal trial and what infuses its purpose, is for justice to
be done and also to be seen to be done. But the concept of justice itself is a broad and
protean concept. In considering what, for purposes of this case, lies at the heart of a fair
trial in the field of criminal justice, one should bear in mind that dignity, freedom and
equality are the foundational values of our Constitution. An important aim of the right to
a fair criminal trial is to ensure adequately that innocent people are not wrongly convicted,
because of the adverse effects which a wrong conviction has on the liberty, and dignity
(and possibly other) interests of the accused. There are, however, other elements of the
right to a fair trial such as, for example, the presumption of innocence, the right to free
legal representation in given circumstances, a trial in public which is not unreasonably
delayed, which cannot be explained exclusively on the basis of averting a wrong
conviction, but which arise primarily from considerations of dignity and equality.’

The right to a fair trial also includes the right to a prosecutor who acts and is perceived to
act without fear, favour or prejudice. Trial fairness is not only confined to the accused, but
to the overall society. To this extent, the court must ensure that the unrepresented
accused is duly assisted during the trial, without necessarily infringing upon the case for
the prosecution.

The right to a fair trial demands that there should be informed participation by the accused.
Therefore, the court must ensure to explain all procedural rights and options to the
unrepresented accused, at every critical stage of the proceedings. The explanation of
rights to the accused should duly recorded by the court. A fair trial requires that every
application for legal aid be carefully and completely noted in such a way that another court
is subsequently appraised of this fact. It is the task of the presiding officer to explain the
rights of the unrepresented himself or herself, and not to delegate these to the interpreter.

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Question 7

Autrefois acquit and convict are part of legality. In essence, they represent part of the rule of law
embodied in the Constitution. Discuss this statement fully and indicate the nexus between the
pleas and the rule of law. This discussion should fully incorporate the meaning and the
characteristics of each plea.

BASIC PRINCIPLE

It is a deep-seated principle of any civilized system of criminal law that no person shall be
punished more than once for the same offence. The basic principle is also part of our
Constitution (s 35(3)(m)), which mandates that no accused person must be tried for an
offence in respect of an act or omission for which that person has previously been either
acquitted or convicted.

The plea that a person has already been acquitted or convicted of the same offence is known as
autrefois or autrefois convict – s 106 (1) (c) and (d) of the CPA. The Latin maxim is: Nemo debet
bis vexari pro una et eadem causa – no person shall be harassed twice for the same cause. An
accused may evade a second prosecution even though he was acquitted previously on the same
charge by pleading autrefois acquit or autrefois convict.

The onus of proving a plea of previous acquittal or conviction or previous acquittal rests
upon the accused. Proof of the previous trial is usually rendered by producing the record
(or a copy thereof) and by oral evidence that the accused is the same person who was
previously tried.

AUTREFOIS CONVICT

The essentials of this plea are that the accused had previously been convicted –

1. of the same offence;

2. by a competent court.
AUTREFOIS ACQUIT

The essentials of the plead of autrefois acquit are that the accused has previously been
acquitted –

1. of the same offence with which he is now charged;

2. by a competent court; and
3. upon the merits.

THE CONCEPT OF ‘THE SAME OFFENCE’

In order to ascertain whether the offence is the same as that of which the accused has
previously been found not guilty, the court will pay attention to the true essence of the
offence and not to technicalities; it is the ratio decidendi of the previous judgment which is
binding – Manasewitz 1933 AD 165; 1934 AD 95. It will be sufficient if the offences are
substantially the same. This test is not a formal one: The question is not whether the
appellation (names) of the respective offences are the same.

The plea is also available where the offence with which the accused is now charged is a
lesser one than that of which he had been convicted or acquitted, and the current offence
is one of which he could have been convicted or acquitted on the previous charge – Long
1958 (1) SA 115 (A). If the accused has previously been convicted or acquitted of murder,

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he cannot now be charged with culpable homicide. If the accused has previously been
charged with murder and convicted of assault, he cannot now be charged with culpable
homicide. (The conviction or acquittal of the latter two offences is competent upon a
charge of murder.)

On the other hand, the plea is not available where it was impossible at the previous trial to
prefer the more serious charge now presented. Thus, if the victim of an assault dies after
the accused has already been convicted of assault, the accused may be indicted for
murder or culpable homicide. Likewise, conviction of negligent driving of a motor vehicle is
not a defence on a charge of culpable homicide – Dayzell 1932 WLD 157; Gabriel 1971 (1)
SA 646 (RA) at 652–5. But where it was possible to prefer the more serious charge, the
plea should prevail, for example where a person is charged with murder after he has
already been convicted of culpable homicide. Cf Tieties 1990 (2) SA 461 (A) and see in
general Sepiri 1979 (2) SA 1168 (NC).

The plea can also be relied upon where the offences are substantially the same. In Long
1958 (1) SA 115 (A) 117 the court stated:

‘It is not enough to support the plea that the facts are the same in both trials. The offences
charged must be the same, but substantial identity is sufficient. If the accused could have
been convicted at the former trial of the offence with which he is subsequently charged
there is substantial identity, since in such a case acquittal on the former charge necessarily
involves acquittal on the subsequent charge.’
Another way of putting it is that he must legally have been in jeopardy on the first trial of
being convicted or acquitted of the offence with which he was charged on the second trial
– Watson 1970 (1) SA 320 (R).

If at the trial there is not a substantial difference between the facts alleged in the charge
and the facts proved by the evidence, the accused may be convicted (at any rate, where
the charge is amended) and should he be acquitted he may therefore plead autrefois
acquit when subsequently charged on an amended charge. See Manasewitz 1933 AD
165, 1934 AD 95. An illustration of this principle is to be found in Vorster 1961 (4) SA 863
(O). The accused was initially charged with driving a lorry, OP 181, in Rabie Street,
Luckhoff, while drunk. According to the evidence led at the first trial the accused attempted
to drive another motor vehicle with a different registration number. The prosecutor stopped
the case and the accused was acquitted. At the second trial it was alleged that the
accused drove a light delivery van, OP 351, in Barnard Street, Luckhoff, on the same day.
His plea of autrefois acquit was upheld on appeal on the ground that the variation between
the
averments in the charge sheets and the evidence led (at the first trial) was not material
and that he stood in jeopardy of being convicted.

If the accused has previously been acquitted on an indictment for murder and is now
indicted on the same set of facts and convicted of assault, he may avoid conviction with a
plea of autrefois acquit. The reason for this is that on a charge of murder he might have
been convicted of assault. The principle here is that there exists substantial identity of
subject-matter when the crime charged in the second indictment would have been a
competent verdict on the first indictment. But even though the offence alleged in the
second indictment would not have been a competent verdict on the first indictment, it is still
possible that the offences charged in the two indictments are similar enough to found a
plea of autrefois acquit. The court must consider the essential ingredients of the criminal
conduct respectively charged in the two indictments, and apply the test used in Kerr
(1907) 21 ECD 324, namely whether the evidence necessary to support the second

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indictment would have been sufficient to procure a legal conviction on the first indictment –
Ndou 1971 (1) SA 668 (A); Nyati 1972 (4) SA 11 (T). Even if a plea of autrefois acquit fails
on the latter ground (ie because the evidence necessary for the second indictment would
not have been sufficient to procure a conviction on the first indictment), the court still has a
discretion to prevent the second trial from proceeding on the basis that a trial should not be
allowed to proceed in piecemeal fashion to the prejudice of the accused. The policy is that
if an accused could have been charged with the two offences at the first trial, he should
have been so charged – he should not be tried in two separate trials. See Khoza 1989 (3)
SA 60 (T).

(b) Upon the merits

It is required that the acquittal must have been ‘on the merits’ in a final judgment. This
means that the court (whether at the trial or ultimately upon appeal) must have considered
the merits of the case, whether in fact or in law, and must not have acquitted the accused
merely because of a technical irregularity in the procedure. Manasewitz 1993 AD 165;
Moodie 1962 (1) SA 587 (A);
Naidoo 1962 (4) SA 348 (A); Rudman 1992 (1) SACR 70 (A).

Where the trial proves a nullity because of such a fatal irregularity, the accused may be
brought to trial de novo and the plea of autrefois acquit cannot prevail.

Even where the merits have in fact been considered by the trial court, the irregularity may
be of such a nature as to preclude a valid consideration of the merits – Moodie’s case at
597. An acquittal is ‘on the merits’ even if the State has led no evidence at all, because the
real distinction is between an acquittal on the merits and an acquittal on a technicality –
Mthetwa 1970 (2) SA 310
(N) at 315E–F.

Even when a court errs in law in acquitting an accused and the evidence had to be
considered in deriving at the legal decision, the acquittal is ‘on the merits’ – Bizi 1971 (1)
SA 502 (RA) at 504. It is not always easy to decide whether an irregularity is merely
technical or not. In Moodie’s case there was a tenth man present at the jury’s
deliberations.

The Supreme Court of Appeal held that this constituted such a gross departure from
established rules of procedure that the accused had not been properly tried. In other
words, the court held that the trial was a nullity and on that account it did not consider the
merits at all. Compare Rudman 1992 (1) SACR 70 (A). For a further example, see Mkhise
1988 (2) SA 868 (A), where the accused’s ‘legal representative’ falsely masqueraded as
an advocate.

In Naidoo’s case, the interpreter at the trial was not sworn in in respect of three witnesses, with the
result that their evidence could not be taken into account. This in itself did not constitute so gross a
departure from established rules of procedure as to render the trial per se a nullity. The court on
appeal therefore considered the rest of the evidence which had been properly adduced, and came
to the conclusion that it could not be said that the jury would inevitably have convicted on that

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evidence. In this case, therefore, the plea of autrefois acquit was upheld when the
accused was re- indicted.

From these two cases it can be seen that the question of whether the acquittal can be said
to have been on the merits, depends to a large extent on the nature of the irregularly. See
also ss 313 and 324.

Section 322(3) now provides that where a conviction is set aside on the ground that a
failure of justice has resulted from the admission of evidence otherwise admissible but not
properly placed before the trial court due to some defect in the proceedings, the court of
appeal may remit the matter to the trial court with instructions to deal with any matter,
including the hearing of such evidence, as the court of appeal may think fit. This
innovation is to overcome the objections to the result of the Naidoo case. In terms of ss
322(4) and 324, where a decision on a question of law reserved has been given in favour
of the prosecutor, the court may order that proceedings be reinstated against the accused,
on the same or different charges.

The court pointed out that the question is whether these provisions are in
conformity with s 35(3)(m) of the Constitution, which provides that an accused person
has the right not to be tried for an offence of which he has previously been convicted or
acquitted. However, when an acquittal was based on the wrong answer to a legal
question, a retrial would not infringe s 35(3)(m). If an acquittal was based on a trial judge’s
failure to call a witness whose evidence he thought was essential to a just decision of the
case, this would amount to an error of law and such a serious defect in the proceedings
that it would vitiate the trial. Accordingly, the accused had not been in jeopardy: his
acquittal was set aside and the institution of a retrial before a different bench ordered
– Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR 217 (SCA).

(c) The concept of ‘competent court’

The plea of autrefois acquit can be sustained even where it is based on the judgment of a
foreign court – Pokela 1968 (4) SA 702 (E). The court in the first trial must have been competent
as to its composition and jurisdiction and the court must have had the power to finally absolve or
convict the accused on the charge, hence a court conducting a mini preparatory examination,
does not have such competency.

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1.1 Assignment 03 – Semester 1

Each statement is either true or false.

1. Open justice can be equated with the concept that justice must be “seen to be done”.-TRUE
2. Open justice is protected by the right to a fair trial and is an absolute right.-FALSE
3. The court cannot exclude any member of the public from the trial of an adult accused.-FALSE
4. In cases where a witness for the state is about to abscond, the prosecutor may apply for a
warrant of arrest and have the said witness detained pending the trial.-TRUE
5. Co-accused are ordered numerically.-TRUE
6. The prosecution decides the numerical order of co-accused at a trial.-TRUE
7. The court can of its own accord raise the issue of separation.-TRUE
8. The principle of legality is constitutionally entrenched.-TRUE
9. The principle of equality of arms is founded on equal opportunities being available to both the
state and the defence to prove their respective cases.-TRUE
10. The merits of a case are the cardinal point of the court’s considerations when determining
whether to convict or acquit.-TRUE
11. Where required, the entire judgment of the court must be translated into a language that the
accused understands.-TRUE
12. In cases where the charge pertains to multiple acts or omissions, the court must deliver
judgment separately on each individual charge.-FALSE
13. Some sentences do not constitute punishments.-TRUE
14. In Rabie 1975 (4) SA 855 (A) 862G, the court summarised the general principles of
sentencing.-TRUE
15. Imprisonment, committal to a treatment centre, a fine and correctional supervision are the only
sentences that can be imposed by a court.-FALSE
16. Periodical imprisonment is a form of short-term imprisonment and is also informally known as
“weekend imprisonment”.-TRUE
17. The Constitution secures a general right of review.- TRUE
18. Fairness no longer entails enquiring whether there was a failure of justice, but whether the trial
was fair.- TRUE
19. Review is more appropriate than appeal in cases where the accused is dissatisfied with the
procedures during the trial.- TRUE
20. There is a general right of appeal in South Africa.-TRUE
21. The right of appeal is justifiably limited by section 36 of the Constitution.-TRUE
22. A person can appeal against the sentence imposed or the conviction – not both.-FALSE
23. The Constitution empowers the President to pardon or reprieve offenders in certain

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circumstances.-TRUE
24. The President is empowered to remit any fine, penalty or forfeiture within the confines of the
Constitution.-TRUE
25. The Department of Justice and Constitutional Development has the sole responsibility to
expunge records on application by the accused.- TRUE

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1.2 Assignment 01 – Semester 2

QUESTION ONE

1. Every country needs rules, principles, mechanisms and State organs to prevent, identify, control and
investigate criminal behavior.” In the light of this statement, briefly discuss the importance of criminal
procedure in the South African legal system.

The importance of criminal procedure in the South African legal system

The purposes served by criminal procedure are as follows:

i. Criminal procedure provides a process that vindicates substantive criminal law goals.
Procedural mechanisms must therefore determine substantive guilt reliably, authoritatively and
in a manner that promotes the criminal law’s sentencing objectives;

ii. Criminal procedure provides a dispute resolution mechanism that allocates scarce resources
efficiently and that distributes power amongst state officials;

iii. State-citizen disputes can be resolved in a manner which commands the communities’
respect for the fairness of process and the reliability of the outcomes.

All of the above are subject to the supremacy of the Constitution of the Republic of South Africa, 1996.

2. Briefly distinguish between adjectival and procedural law.

The distinction between adjectival and substantive law

Substantive law comprises legal rules determining the rights and duties of individuals and the state;
and both private and public law are part of substantive law. Substantive criminal law determines the
prerequisites for criminal liability and prescribes the elements of various specific crimes. It also
attaches a sanction to the breach of its prohibitions. However, the mere threat of criminal sanctions
would serve no purpose and therefore the measures to enforce these sanctions are provided by the
adjectival law.

Adjectival law puts substantive criminal law into action and the rules of criminal procedure form part of adjectival law.

3. Discuss the distinction between the withdrawal of a charge and the stopping of a prosecution.

The prosecuting authority has the authority to withdraw a charge before the accused has pleaded to such a charge –
s 6(a) of CPA. The accused is in these circumstances not entitled to a verdict of acquittal. He may be prosecuted
again on the same or related charges, for example, where new evidence is found. A prosecutor may withdraw a
charge without the consent of his DPP. The reason for this is that a DPP, if dissatisfied with the prosecutor’s
withdrawal of the charge, may charge the accused afresh. Before an accused pleads, the prosecution can also
withdraw a summons and issue another – Wolman v Springs Town Council 1941 TPD 104. A DPP may at any time
after an accused has pleaded, but before conviction, stop the prosecution in respect of that charge. If this is done,
the accused is entitled to an acquittal – s 6(b) of CPA. This means that in any subsequent prosecution in respect of
the same facts, the accused can successfully rely on a plea of previous acquittal (autrefois acquit). However, a public

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prosecutor may not stop a prosecution without the consent of the DPP or any person authorized thereto by such a
DPP – s 6(b); Van Wyk 1981 (3) SA 228 (C). The mere fact that a prosecutor indicates to the court that on the
evidence as presented in court he is unable to support a conviction, does not amount to a stopping of the
prosecution – Bopape 1966 (1) SA 145 (C).

QUESTION TWO

1. In terms of the Criminal Procedure Act (CPA) 51 of 1977, every peace officer may, without a
warrant, arrest any person listed in section 40(1). In Minister of Safety and Security v Sekhoto
and another [2011] 2 All SA 157 (SCA), the Supreme Court of Appeal held, inter alia, that the
arrestor had to exercise a measure of rational discretion in the exercise of his or her powers. In
the light of this statement, answer the following questions pertaining to the court’s judgment:

a) Referring to its earlier decision of Duncan v Minister of Law and Order 1986 (2) SA 805 (A),
the court alluded to “jurisdictional facts” that must exist before the power conferred by
section 40(1) may be exercised. Briefly mention these factors. (4)

The list of jurisdictional facts which must be complied with in order to give effect to s 40
(1) – See Minister of Safety and Security v Sekhoto and another [2011] 2 All SA 157 (SCA) [par
5] and Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818.
(i) the arrestor must be a peace officer;
(ii) the arrestor must entertain a suspicion;
(iii) the suspicion must be that the suspect (the arrestee) committed an offence referred to in
Schedule 1; and the suspicion must rest on reasonable grounds.

b) The peace officer is compelled, once the jurisdictional facts have been established, to
effect an arrest immediately. State whether the foregoing is true or false, and provide a
reason for your answer. (3)
False. The court held [par 28], that once the required jurisdictional facts are present, the arrestor is
presented with a discretion on whether or not to arrest. Thus, the officer, is not obliged to effect an arrest
without further ado.

c) What was the court’s finding regarding the purpose of the arrest in the exercise of
discretion by the peace officer? (8)

(b) The court concluded [par 30] that the decision to arrest must be based on the intention to
bring the arrested person to justice. Hence, the exercise of discretion is clearly unlawful if the
arrestor knowingly invokes the power to arrest for a purpose not contemplated by the legislator.
The court mentioned a few examples which might make the exercise of discretion unlawful,
namely, an arrest: to frighten or harass the suspect; arrest and compulsion to appear before
mobile traffic courts with the intent to expedite the payment of fines; arrest of a suspect to prove
to colleagues that the arrestor is not a racist; arrest which is intended to punish the plaintiff; or
arrest which is aimed to force the arrestee to abandon his or her right to silence. An arrest

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under the circumstances referred to above, is regarded as mala fide and therefore, in fraudem legis,
because the arrestor has used the power of arrest for any but its intended purpose

d) The court made a distinction between objective and motive in the exercise of
discretion. Briefly discuss this statement in the context of the court’s finding.

The court drew a distinction [par 31] between the concepts of object and motive as follows: Object
is relevant whereas motive is not. Thus, the validity of an arrest is not affected by the fact that the
arrestor, in addition to bringing the suspect before court, wishes to interrogate or to subject him or
her to an identification parade or blood tests in order to confirm, strengthen or dispel suspicion.

e) Discuss the court’s finding in relation to the exercise of discretion as it pertains to the
nature and seriousness of the offence as set out in section 40(1). (5)
f)
The rationality or otherwise of the decision to arrest [par 44], may be gauged from the facts of the
case. Thus, the arresting officer may take into account the seriousness of the offence when
exercising discretion. The officer may, therefore, exercise his or her own judgment in deciding on the
seriousness of the offence. This necessarily entails that he or she may effect arrest in spite of the
fact that the offence in question is not listed in Schedule I of the CPA. In the same vein, the officer
will be deemed to have acted irrationally where he or she arrests a suspect in circumstances where
the suspected offence is deemed to be relatively trivial

g) Fully discuss the court’s finding on the question of onus. (10)

Onus in the context of civil law [par 50] depends on considerations of policy,
practice and fairness. Thus, if a rule relating to onus is rationally based, it is difficult
to appreciate why it should be unconstitutional. The general rule [par 49] is that the
party who attacks the exercise of discretion where the jurisdictional facts are
present, bears the onus of proof. To this end, the party who alleges that a
constitutional right has been infringed must establish the basis thereof. This position
is applicable regardless of whether or not the right to freedom is compromised. For
instance, someone who wishes to attack an adverse parole decision bears the onus
of showing that the exercise of discretion was unlawful. The same principle applies
when the refusal of a presidential pardon is in issue.
In all fairness, it cannot be expected of a defendant, to deal effectively in a plea or in evidence, with
unsubstantiated averments of mala fides and the like, without the specific facts on which they are
based, being stated. In the same vein, it cannot be expected of a defendant to deal effectively with a
claim in which no averment is made, except a general one that the arrest was “unreasonable”. If this
position were to be otherwise accepted, the defendant would in effect be compelled to cover the
whole field of every conceivable ground for review, in the knowledge that, should he or she fail to do
so, a finding that the onus has not been discharged, may ensue. Such a state of affairs is patently
untenable.

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2. Mention seven instances, other than those referred to in Schedule I, in which an arrest
may be effected in terms of section 40(1). (7)

• Any person who commits or attempts to commit any offence in his presence;
• Any person who has escaped or who attempts to escape from lawful custody;
• A “reasonable suspicion” that a person has escaped is not sufficient for an arrest in
terms of this provision. A person who affects an arrest in terms of this provision must
know that the person he arrests has escaped from lawful custody.
• Any person who has in his possession any housebreaking implement or car-breaking
implement, as referred to in the Third General Law Amendment Act of 1993, and who
is unable to account for such possession to the satisfaction of the peace officer. The
possession of housebreaking or car-breaking implements in suspicious circumstances
constitutes an offence in terms of the said Act.

• A person who is found in possession of anything which the peace officer reasonably
suspects to be stolen property or property dishonestly obtained, and whom the peace
officer reasonably suspects of having committed an offence with respect to such thing.
• Any person who is found at any place at night in circumstances which afford
reasonable grounds for believing that such person has committed or is about to
commit an offence. The purpose of the arrest provided for in this provision is to enable
the peace officer to conduct an investigation to find out whether the person has
committed an offence or not. If it appears that no offence has been committed, the
person will have to be released.
• Any person who is reasonably suspected of being or having been in unlawful
possession of stock or produce as defined in any law relating to the theft of stock or
produce.
• Any person who is reasonably suspected of committing or of having committed an
offence under any law governing the making, supply, possession or conveyance of
intoxicating liquor or of dependence-producing drugs or the possession or disposal of
arms or ammunition.
• Any person found in a gambling house or at a gambling table in contravention of any
law relating to the prevention or suppression of gambling or games of chance.
• Any person who obstructs him in the execution of his duty.
• Any person who has been concerned in or against who a reasonable complaint has
been made or credible information has been received or a reasonable suspicion exists
that he has been concerned in any act committed outside the Republic which, if
committed in the Republic, would have been punishable as an offence, and for which
he is, under any law relating to extradition of fugitive offenders, liable to be arrested or
detained in custody in the Republic.
• Any person who is reasonably suspected of being a prohibited immigrant in the

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Republic in contravention of any law regulating entry into or residence in the Republic.
• Any person who is reasonably suspected of being a deserter from the South African
National Defence Force.
• Any person who is reasonably suspected of having failed to observe any condition
imposed in postponing the passing of sentence or in suspending the operation of any
sentence under this Act. The purpose with the arrest in this instance is to bring the
person before the court to enable the court to determine whether the sentence should
be imposed or be put into operation.
• Any person who is reasonably suspected of having failed to pay any fine or part
thereof on the date fixed by order of court under this Act.
• Any person who fails to surrender himself in order that he may undergo periodic
imprisonment when and where he is required to do so under an order of court or any
law relating to prisons.
Any person who is reasonably suspected of having committed an act of domestic violence as
contemplated in section 1 of the Domestic Violence Act, 1998, which constitutes an offence in
respect of which violence is an element.

Question 3

1. Discuss the appellate jurisdiction of the following courts:

a) the Supreme Court of Appeal

The Supreme Court of Appeal has the authority by law to hear an appeal against any
judgment of a high court and to decide on such appeal. This means that the Supreme Court of
Appeal has jurisdiction to hear and determine an appeal from any decision of a High court.
Persons who have been found guilty by a superior court may not automatically appeal to the
Supreme Court of Appeal. The general principle is that leave has first to be sought from the
High Court before an appeal can be made to the Supreme Court of Appeal.

b) provincial divisions of the High Court

The provincial division has appeal and review jurisdiction in respect of criminal
proceedings emanating from lower courts. Furthermore, the provincial divisions, when
sitting as a “full court” (i.e. three judges), have appellate jurisdiction to hear an appeal
in a criminal case decided by a single judge if the questions of law and of fact and
other considerations involved in the appeal are of such a nature that the appeal does
not require the attention of the Supreme Court of Appeal.

c) local divisions of the High Court (10)

The Witwatersrand Local Division has exactly the same appellate jurisdiction as a provincial division. All other
local divisions have no appellate jurisdiction.

2. Discuss the jurisdiction of the following courts in respect of offences committed on South
African territory:

a) the Supreme Court of Appeal

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The Supreme Court of Appeal may act as a court of appeal only, except in cases of contempt
in facie curiae, where the court has an inherent power summarily to impose a sentence. Note
that the Supreme Court of Appeal can only amend a sentence on appeal. Leave to appeal to
this court can be sought against sentence alone or conviction and sentence.

b) provincial divisions of the High Court

Provincial divisions have original jurisdiction (in other words the ability to act as the court of
first instance) in respect of all offences.

c) local divisions of the High Court

Local divisions have original jurisdiction (in other words the ability to act as the court of first
instance) in respect of all offences.

d) regional courts and district courts (10)

A district court has jurisdiction to try all crimes except treason, murder and rape. A district court
may even try some serious offences against the state. A regional court may try all crimes
except treason. A regional court may thus try murder and rape.

Question 4

a) In the criminal justice system, the prosecution can do what is legally permissible to set criminal
proceedings in motion, such as determining the charges and the date and venue of the trial.
Discuss the phrase “the prosecution as dominus litus”. (6)

(a) The prosecution as dominus litis

The prosecution can be described as dominus litis (“master of the case”) (see Zuma 2006 (2)
SACR 257 (W)). It merely means that the prosecution can do what is legally permissible to set
criminal proceedings in motion, such as determining the charges and the date and venue of
the trial. An element of residual control by the courts over decisions taken by the prosecution
as dominus litis, remains essential. Fairness to the accused is an important guideline in
exercising this control. The following examples illustrate this point:
• In Khoza 1989 (3) SA 60 (T) it was held that the prosecution, precisely because it is
dominus litis, should formulate and consolidate all its charges, in relation to a
particular set of facts, to be tried in a single case.

• Similarly, although the prosecution can as dominus litis determine the numerical order
in which several accused are named in the charge or indictment, the court may, in the
interests of justice, justice and fairness, order that the sequence in which the accused
present their evidence be varied – Swanepoel 1980 (2) SA 81 (NC) at 84D.

A presiding judicial officer in a criminal case does not have the authority to close the State’s case if

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the prosecutor is unwilling to do so. But if the prosecutor, after an application by him for the
postponement of the trial has rightfully been rejected by the court, refuses to adduce evidence
or to close the State’s case, the judicial officer will continue with the proceedings as if the
prosecutor had indeed closed the State’s case – Magoda 1984 (4) SA 462 (C).

b) Briefly discuss the requisite qualifications for appointment as NDPP or DNDPP.

(b) The requisite qualifications for appointment as NDPP or DNDPP.

i. He or she must be a South African citizen

ii. He or she must possess qualifications which entitle him or her to practice in all courts of
the Republic; and
He or she must be a fit and proper person, with due regard to his or her experience,
conscientiousness and integrity.

c) During a trial, the prosecution must be able to furnish proof beyond a reasonable doubt.
Occasionally, there might be good grounds for refusing to prosecute even though a prima facie
case exists. Discuss “the discretion of the prosecutor to prosecute”. (10)

In principle, South Africa does not follow a system of compulsory prosecution. The prosecutor
has a duty to prosecute if there is a prima facie case and if there is no compelling reason for a
refusal to prosecute. In this context “prima facie case” implies the following: allegations, as
supported by statements and real and documentary evidence available to the prosecution are
of such a nature that if proved in a court of law by the prosecution on the basis of admissible
evidence, the court should convict. Sometimes it is asked: Are there reasonable prospects of
success with a prosecution? The prosecution, it has been held, does not have to ascertain
whether there is a defence, but whether there is a reasonable and probable cause for
prosecution – see generally Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at
137 and Lubaxa 2001 (2) SACR 703 (SCA) at 707i. The prosecution must at the trial be able
to furnish proof beyond a reasonable doubt. Occasionally there might be good grounds for
refusing to prosecute despite the fact that a prima facie case exists. Such grounds may be the
triviality of the offence; the advanced age or very young age of an accused; where a plea
bargain was struck between the prosecution and the defence; the antiquated personal
circumstances of an accused, for example, a father who has through his negligent driving
caused the death of his young child. There is a rule of practice in terms of which an accused,
or his legal representative acting upon his instructions, may take written representations to a
DPP or the local public prosecutor to decline to prosecute. (10)

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ASSIGNMENT 2 – SEMESTER 2

Question 1

While performing his duties, Inspector X stumbles upon information from an informant that Y is
in possession of a stolen vehicle. X acts on the information and immediately proceeds to Y’s
house. Upon his arrival, he notices the vehicle described by the informant parked under the
carport in the yard. X informs Y about the purpose of his visit, namely, to investigate the
presence of an allegedly stolen vehicle on Y’s premises. He thereupon requests Y’s permission
to inspect the vehicle. Y accedes to the request. X opens the car bonnet of the said vehicle and
proceeds to inspect the engine. He notices, while looking over the engine, that the engine
number has been filed off. He thereupon decides to impound the vehicle for further investigation

Answer the following questions with specific reference to Ngqukumba v Minister of Safety and
Security 2014 (2) SACR 325 (CC) (hereinafter Ngqukumba) and the relevant Constitutional
and legislative provisions:

1. Discuss

a) the applicable constitutional issues, especially as they relate to Y’s position

(6)
The Constitution jealously protects individual rights. To this extent, the enjoyment of
these may only be disturbed in circumscribed circumstances. In terms of the Bill of
Rights, interference against these rights is protected inter alia by:
Section 12, which guarantees the freedom and security of the person, which includes the
right-
(e) not to be treated or punished in a cruel, inhuman or degrading way.

Section 14, which guarantees the right to privacy, which including the right not to have-
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized…
In relation to the above, the exclusionary clause (s 35 (5)) in the Bill of Rights maintains that -
Evidence obtained in a manner that violates any right in the Rill of Rights must be
excluded if the admission of that evidence would render the trial unfair or otherwise be
detrimental to the administration of justice.

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b) the relevant legislative and Constitutional provisions as they relate to X in the exercise of
his duties regarding the actions he is undertaking – in other words, the provisions that
regulate the exercise of his powers as a police officer (5)
In terms of s 205 (3) of the Constitution, the objects of the police service are to
prevent, combat and investigate crime, to maintain public order, to protect and
secure the inhabitants of the Republic and their property, and to uphold and
enforce the law.
In the same the South African Police Act 68 of 1995 governs the duties and functions of
police officers. Section 13 (3) enumerates the functions of the police as including the
duty to “prevent, combat and investigate crime, to maintain public order, to protect and
secure the inhabitants of the Republic and their property, and to uphold and enforce the
law.” In the exercise of his or her official duty, a member is also required to act in
manner which is “reasonable”, in the circumstances.

c) in view of the facts above, the relevant and applicable provisions of the Criminal
Procedure Act (CPA) 51 of 1977 regarding the search and subsequent impounding of
the vehicle by X (10)
In terms of s 22 of the CPA,
“A police official may without a search warrant search any person or container or
premises for the purpose of seizing any article referred to in section 20-
(aa) if the person concerned consents to the search for and the seizure of the article in
question, or if the person who may consent to the search of the container or premises
consents to such search and the seizure of the article in question; or
(bb) if he on reasonable grounds believes-
(i) that a search warrant will be issued to him under paragraph (a) of section 21 (1) if he
applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object of the search.”
In terms of s 20 of the CPA, the following articles are susceptible to seizure by the police:
(i) articles which are concerned in or are on reasonable grounds believed to be concerned
in the commission or suspected commission of an offence, whether within the Republic or
elsewhere;
(ii) articles which may afford evidence of the commission or suspected commission of an
offence, whether within the Republic or elsewhere; or
articles which are intended to be used or are on reasonable grounds believed to be intended to
be used in the commission of an offence.

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d) Discuss the successive courts’ (namely, the High Court, the Supreme Court of Appeal
(SCA) and the Constitutional Court’s) judgments in Ngqukumba, with specific reference
to the seizure and return of the vehicle to the applicant (15)
The High Court found on the facts and the law [para 4], that the seizure of the
vehicle had been unlawful. However, the court maintained [para 3], as a matter of
principle that the restoration of an allegedly stolen item to the applicant would be
tantamount to assisting him in the commission of a crime. The court’s finding was
based on the fact that s 68(6)(b) read with s 89(1) of the Traffic Act, which
essentially prohibits the possession “without lawful cause” of a motor vehicle of
which the engine or chassis number has been falsified or mutilated.
The Supreme Court of Appeal (SCA) [para 5] essentially confirmed the court’s finding
regarding the return of the vehicle to the applicant. The court likened any ruling which
sought to restore the vehicle to the applicant to one “ordering a person to be restored in
the possession of his or her heroin or machine gun which he or she may not lawfully
possess.” To this end, the appellant was invited by the court to distinguish this case
from a claim by the former possessor of heroin. The appellant was, unfortunately,
unable to dispute the Court’s logic, in this regard.
The Constitutional Court, on the other hand, found in favour of the applicant, averring
that the seizure of the appellant’s vehicle had in fact, been unlawful.
The Court held [para 15], that the applicant had been under peaceful and undisturbed
possession of the vehicle and was, therefore, entitled to a spoliation order in his favour. The
Court rejected the SCA’s assumption that a vehicle whose engine had been tampered with
could be put into the category other unlawful possessions. According to the Court, the
possession of a vehicle whose engine had been tampered with is only unlawful if it is “without
lawful cause”. Such a conclusion [para 21] can only be made upon interrogation of the
merits, which are the subject of a subsequent criminal trial. A motor vehicle is fundamentally
an object which may be possessed lawfully. To this end [para 15], it is possible for an
individual to possess a vehicle whose engine was tampered with if there is lawful cause for
its possession. Thus, the SCA’s example regarding the lawfulness of the possession of
heroin [and an unlawful firearm] was held [para 15] to be inapposite and therefore,
misleading

e) Name the remedy that was the subject of the applicant’s action in Ngqukumba. (1)
Mandament van spolie

f) Briefly discuss the ambit and content of a preservation order (3)

A preservation order is a court injunction which prohibits a person from dealing in any manner with property
which was allegedly involved in the commission of an offence. Property only qualifies as such if its use in
the commission of the offence was “real and substantial”. The fact that a crime was committed at a
particular place does not automatically qualify such place as an essential element of the offence.

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Question 2

a) The constitutional right to bail and the need for and the nature of bail as a method of
securing liberty pending the outcome of a trial must be understood in the light of certain
principles. Discuss this statement critically. (12)
Basic principles to be observed in the granting of bail
(1) Everyone who is arrested for allegedly committing an offence has the right to be
released from detention if the interests of justice permit, subject to reasonable conditions
– s 35(1)(f) of the Constitution.
(2) An accused is, in the absence of a conviction by a court of law, also constitutionally
presumed to be innocent. See s 35(3)(h) of the Constitution. There is an obvious area of
tension between this presumption and deprivation of liberty pending the verdict of a court
of law. Bail is a method of securing a compromise.
(3) It has been said that the purpose of bail is to strike a balance between the interests of
society (the accused should stand his trial and there should be no interference with the
administration of justice) and the liberty of an accused (who, pending the outcome of his
trial, is presumed to be innocent)
(4) The legislature has determined that the refusal to grant bail shall be in the interests of
justice where one or more of the grounds referred to in s 60(4)(a) to s 60(4)(e) are
established.
(5) The whole issue turns on what is in the best interest of justice. Obviously, it is not in
the best interests of justice to grant bail to an accused who will not stand his trial or who
might otherwise abuse his liberty pending verdict, for example, by intimidating state
witnesses. However, it must be appreciated that it is also not in the best interests of
justice to refuse bail to an accused who will stand his trial and who will not otherwise
interfere with the administration of justice.
In any further development and interpretation of rules and principles governing bail, all courts are
obliged to take full account of the provisions of s 39(2) of the Constitution, ie, that a court must
promote the spirit, purport and objects of the Constitution.

b) Discuss the burden and standard of proof, and proof of previous convictions in the
course of a bail application. (8)

The standard of proof required from an accused where he bears the burden of proof as
provided for in subsecs 60(11)(a) and 60(11)(b), is the civil standard, namely proof of balance
and probability. In all cases falling outside the ambit of subsecs 6-(11)(a) and 60(11)(b), the
burden of proof is on the prosecution. The standard of proof is proof on a balance of
probability. Proof beyond a reasonable doubt is not necessary because guilt or innocence in

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respect of the charge is not the issue.

Previous convictions may be proved by the state in the course of a bail application –
Patel 1970 (3) SA 565 (W) at 566B-C; Ho 1979 (3) SA 734 (W); Attorney-General,
Zimbabwe v Phiri 1988 (2) SA 696 (ZHC); Mdleleni 1992 SACJ 197. The accused or his
legal adviser is also compelled to inform the court whether the accused has previously
been convicted of an offence
– s 60(11B)(a)(i). Any charges pending against the accused must also be disclosed by him or his
legal representative and there is also a duty to inform the court whether the accused has been
released on bail pending those charges – s 60(11B)(a)(ii). Where the legal representative
submits the required information, whether in writing or orally, the accused shall be required by
court to declare whether he confirms such information or not – s 60(a11B)(b).

Question 3

Section 88 of the CPA is sometimes referred to as the “silent cure”. Discuss why section 88 is
termed as such and compare the use of section 88 with that of section 86 in terms of the
objectives and content of each section. [5]

Essentially s 88 makes it theoretically possible for an accused to be convicted on a charge

that does not disclose an offence, provided that evidence of the offence is proved in court.
Sections 86 and 88 may be contrasted as follows:
Section 86 Section 88

Used in a situation where there is an essential Used in a situation where the charge
averment missing or where there is a difference sheet is defective because it lacks an
between an averment and the proof tendered or where averment which is essential to the
there are unnecessary words inserted or excluded. offence when the defect is not raised in
court. Once raised in court, s 86(1) will
come into operation.
Section 86 is not automatically operative and Is used to automatically cure the defect
application is made to court to amend the charge sheet. (missing averment) without it being
brought to the attention of the court,
provided that the missing element(s) is
proved in court.

The test is whether the accused will be prejudiced in his The omission must be proved by actual
defence by the amendment. evidence and not presumptions.
Answers provided during a s 112(2)(b)
procedure are regarded as evidence.

Can only be used before the court gives judgment. Is automatic in evidence.

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On appeal the conviction will be set aside if there is a

variance between the charge and what was proved if
the variance actually prejudiced the accused –
Mukwevho 2010 (1) SACR 349 (GSJ).
If a charge is not amended in terms of s 86(1), the If the defect is brought to the attention of
proceedings may remain valid but only in the event that the court, but not by way of a formal
the court did not decline an application for amendment s 86(1) application, and the court refuses
incorrectly. If however the court refuses to grant an to do anything about it, the defect would
amendment on the basis that it will prejudice the
remain even if the evidence cures it – in
accused, it cannot convict the accused because the
which case the accused could appeal. A
charge sheet is defective.
In the event that the accused is indeed convicted, he
court of appeal will only allow an
can raise the defective charge on appeal. On appeal an amendment if the magistrate could have
accused would have to show that the magistrate affected the amendment without causing
erroneously declined an application to amend but prejudice to the accused.
nonetheless convicted him.

Question 4

X is a magistrate in the district court. He is assigned to a case regarding a charge of assault with
intent to do grievous bodily harm (GBH). The accused in the case insists that X is biased because
his son is dating the accused’s third cousin once removed. Is sufficient bias established by this
fact to justify recusal? Discuss fully. [10

As a general rule, any magistrate or judge who is aware that he has any feeling of partiality,
enmity or any motive which might influence him or be commonly supposed to influence him in
deciding a matter, should of his own motion recuse himself and cause a substitute to try the
matter.
Section 165(2) of the Constitution requires our courts to apply the law impartially and without
fear, favour or prejudice. A presiding officer does not act impartially when his reasoning or his
decision is affected by bias. Actual bias or the appearance of bias will vitiate the proceedings
or disqualify a judicial officer from presiding over a court of law.
The requirements of the test for the presence of judicial bias are:
(1) There must be a suspicion that the judicial officer might be, not would be, biased.
(2) The suspicion must be that of a reasonable person in the position of the accused.
(3) The suspicion must be based on reasonable grounds.
(4) The suspicion is one which the reasonable person referred to would, not might,
have held. The following instances may be identified as apparent incidences of
apparent bias:
(1) where the presiding officer has had prior involvement in a judicial capacity in the
matter that could cause apparent bias such as judicial officers conducting bail
proceedings held in terms of s 60(c) of the CPA;
(2) where the presiding officer has previously heard a bail application in respect of the
same accused and the same merits;

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(3) where the presiding officer is aware of previous convictions relating to the accused.
The criterion for recusal is an objective one. Thus, the applicable principle of adjudication in
this regard is that any reasonable person should not be placed in situation where he or she
suspects that justice will not be administered in an impartial and unbiased manner. The test is
not whether the presiding officer was, in fact, impartial or is likely to be impartial. The most
important consideration under the circumstances is whether the parties involved entertain a
reasonable perception of the presiding officer’s impartiality.
A presumption in law exists against the partiality of a presiding officer. However, the applicant
who alleges real bias produce cogent and convincing evidence to that effect. A relationship by
the presiding officer with one or other of the parties essentially establishes grounds for
recusal. This stance is premised on the obvious bias which is reasonably likely to occur
because of the proximity in relations with one of the parties.
The interest upon which the application for recusal is based should, however, not be so
trifling, or the association so remote, that it would be unreasonable to suppose that his or her
judgment would necessarily be clouded by such association.
As alluded to above, the test to be applied in respect of the application for recusal is one of
objective perception, and not of fact. X is probably a good and experienced magistrate who
would not allow his judgment to be clouded by any relationship which he shares with a party
involved in the matter. However, would that be sufficient to satisfy the reasonable perception
of a person in the accused’s position?
It is submitted that the question is not to be answered with a simple “yes” or “no”. the applicant
must present sufficient evidence which, objectively viewed, would lead any reasonable person
in the position of the applicant that the presiding officer might act partially in his adjudication.
According to the set of facts in this question, a generation separates X and the cousin referred
to in the scenario. Ex facie, the apparent distance in association between the parties seems
too far-fetched to create suppositions of partiality. It is, however, up to the court to decide
whether the relationship is too tenuous or sufficiently strong to create a reasonable perception
of bias.

Question 5

Your client, Mr X, is charged with assault with intent to do grievous bodily harm. He advises you that he is
willing to plead guilty to the lesser charge of assault. Would you advise statutory or traditional plea
bargaining, and what are the implications of both?

(1) TRADITIONAL PLEA BARGAINING

To achieve this object a plea to a lesser offence (which may be an offence which is a
competent verdict to the offence charged or an alternative charge) is negotiated with the
prosecutor, which the latter agrees to accept, eg, an accused that is charged with murder
tenders a plea of guilty to culpable homicide.

Another form of plea bargaining occurs when more than one accused stands arraigned on a
particular charge or charges, and an agreement is reached wherein it is stated that the
accused who is undoubtedly guilty, will plead guilty in return for the withdrawal of the

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charge(s) against the other accused. An accused may also undertake to supply vital
information to the investigating officer, which expedites and is necessary for the proper
investigation of the case, on the understanding that the accused will not be prosecuted.

The prosecutor and the defence cannot bind the court to a sentence. The prosecutor may,
however, agree to suggest to the court a possible light, or lighter, sentence – eg, a fine and
not imprisonment. The negotiating process may in some instances be simple. The legal
representative will make an offer that the accused will plead guilty to the lesser offence, which
will then be accepted by the prosecutor.

(2) STATUTORY PLEA BARGAINING

In terms of s 2 of the Criminal Procedure Second Amendment Act 62 of 2001, section 105A
has been inserted into Act 51 of 1977. In terms of s 105A the process of plea bargaining has
now been formalized in the Criminal Procedure Act: it is, in essence, a codification of the
abovementioned age-old practice. The central innovation is that the prosecutor can now also
reach an agreement with the defence on the sentence to be imposed. Certain mandatory
formalities are prescribed, such as that the whole agreement must be in writing. The time for
entering into an agreement (or agreements) is before the commencement of the trial, i e
before plea. Section 105A does not apply to a charge or charges on acceptance of plea during
trial. It is also a once-off situation: if the court has ruled for a de novo trial (on the merits or the
sentence), the parties may not enter into a plea and sentence agreement in respect of a
charge arising out of the same facts. In determining whether a plea agreement complies with
the requirements stipulated in s 105A, a court will also examine subsection (1)(b)(iii) which
provides for the participation of the complainant/victim – Sassin [2003] 4 All SA 506 (NC).

I would advise Mr X to take the statutory plea bargaining route for the following reasons:
(1) Unlike traditional plea bargaining, where the agreement is only verbal, statutory plea
bargaining is in writing, and therefore, binding on the parties and the court;
CPR3701/201

(2) The parties in the instance of statutory plea bargaining, agree on both the charge to
which the accused pleads guilty, and the sentences to be imposed by the court; which is
not the case with traditional plea bargaining;
The parties always have the option, if the court does not agree with the terms of the plea
agreement, to approach a different court to implement the same agreement.

Question 6

A plea in terms of section 204 of the CPA is a plea that allows the accused to escape liability on
condition that he or she presents satisfactory evidence for the state. Discuss both the meaning
of “satisfactory evidence” and the possibility of duress in the use of this procedure. [10]
PLEASE NOTE: QUESTIONS 6 AND 7 OF THIS ASSIGNMENT
ESSENTIALLY CONSTITUTE THE SANE QUESTION WHICH IS POSED DIFFERENTLY.

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Section 204 of the CPA deals with the immunity accorded to accomplices who give
satisfactory evidence for the State in criminal proceedings. According to this section, if the
prosecutor informs the court that any person called as a witness on behalf of the State will be
required to answer questions which might incriminate him, the court must inform such witness
that he will be obliged to answer such questions but that if he answers ‘frankly and honestly’
he will be discharged from liability to prosecution. If the witness does in fact answer the
questions put to him frankly and honestly, the court must discharge him from prosecution -
Waite 1978 (3) SA 896 (O); Bosman 1978 (3) SA 903 (O). An accomplice should not be
granted a discharge from prosecution directly after the completion of his evidence and before
the conclusion of the case – Mnyamana 1990 (1) SACR 137 (A).

This section constitutes an exception to the rule that a witness in criminal proceedings may
not be compelled to answer any question which might expose him to a criminal charge – s
203.

Where an accused at his trial relies on the provisions of the Indemnity Act 35 of 1990 in order
to be discharged from prosecution, such reliance is neither an objection to the charge as
envisaged by section 85 of the Criminal Procedure Act, nor does it fall within the ambit of s
106. However, if reliance is placed on the Indemnity Act it is a special defence which has to be
dealt with by the trial court through evidence – Gqozo 1994 (1) SACR 253 (Ck).

Question 7

Discuss discharge from prosecution as a plea (5)

Section 204 of the CPA deals with the immunity accorded to accomplices who give
satisfactory evidence for the State in criminal proceedings. According to this section, if the
prosecutor informs the court that any person called as a witness on behalf of the State will be
required to answer questions which might incriminate him, the court must inform such witness
that he will be obliged to answer such questions but that if he answers ‘frankly and honestly’
he will be discharged from liability to prosecution. If the witness does in fact answer the
questions put to him frankly and honestly, the court must discharge him from prosecution -
Waite 1978 (3) SA 896 (O); Bosman 1978 (3) SA 903 (O). An accomplice should not be
granted a discharge from prosecution directly after the completion of his evidence and before
the conclusion of the case – Mnyamana 1990 (1) SACR 137 (A).
This section constitutes an exception to the rule that a witness in criminal proceedings may
not be compelled to answer any question which might expose him to a criminal charge – s
203.

Where an accused at his trial relies on the provisions of the Indemnity Act 35 of 1990 in order
to be discharged from prosecution, such reliance is neither an objection to the charge as
envisaged by section 85 of the Criminal Procedure Act, nor does it fall within the ambit of s
106. However, if reliance is placed on the Indemnity Act it is a special defence which has to be
dealt with by the trial court through evidence – Gqozo 1994 (1) SACR 253 (Ck).

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Assignment 03 – Semester 2

1. The notion of “open justice” establishes a protective function in respect of the fair-trial rights of the accused.-
TRUE

2. Open justice can be limited in cases where the accused is in danger of being exposed as a state informant.-
TRUE

3. The accused can testify by way of closed-circuit television in cases where an open trial may cause him or her
emotional or physical harm.-TRUE

4. Witnesses are protected in cases of sexual assault and extortion by way of the court’s discretion to “close
the court”.-TRUE

5. Irrespective of the charge, if a matter relates to an adult accused and complainant, the court cannot exclude
the public from the trial in the interests of justice.-FALSE

6. The court, the prosecutor and the accused all have the power to subpoena witnesses.-TRUE

7. The advantage of a joint trial is that it saves the state resources and time.-TRUE

8. Joinder is permissive and not imperative.-TRUE

9. The decision to separate a trial is at the discretion of the presiding officer.-TRUE

10. Cross-examination of a witness by the court is permissible within the bounds of reasonableness.-FALSE

11. The principle of equality of arms can be related to the competence of both the prosecutor and the
representative for the defence.-TRUE

12. An ex tempore judgment does not infringe on the right of the accused to a speedy trial-TRUE

13. An improper delay in delivering judgment undermines public confidence in the judicial system.-TRUE

14. Community service as a condition of a suspended sentence is not considered a punishment.-FALSE

15. Most statutory offences are enacted with an attendant penalty clause.-TRUE

16. Tradition seems to indicate that the state and the accused must supply the information required by the court
during trial on sentencing.-TRUE

17. Compensation and restitution are forms of restorative sentences.-TRUE

18. Review is not solely the domain of the CPA.-TRUE

19. The Superior Courts Act does not provide for review in criminal proceedings.-FALSE

20. Judicial review has a common-law origin.-TRUE

21. Any conviction, sentence or order of a lower court, and even a discharge after conviction, are subject to
leave to appeal.-TRUE

22. An appeal on the facts relates to the merits of the matter in the trial court.-TRUE

23. If the appellant files a notice of appeal after the prescribed period, he or she can apply for condonation,
although the court is not obliged to grant it.-TRUE

24. Expungement takes place in one of three ways: automatically, on application or when a certain period has
lapsed.-TRUE

25. The President is empowered to remit any fine, penalty or forfeiture within the confines of the Constitution.-
TRUE

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Discussion Class Exercise Questions:

In 2000, Ed Crook and two accomplices, Adam Swindler and Petty Thief, allegedly
committed the following crimes in Cape Town, namely,

(a) Robbery with aggravating circumstances;

(b) Kidnapping; and

(c) Rape.

In 2022 Ed, who is now 72 years old, is arrested in Bloemfontein, Free State, where
he settled immediately after the alleged commission of the offences. The prosecution
alleges that the suspects entered the house of the complainant, Ted Innocent, wilding
an assortment of firearms, whereupon they not only relieved the complainant and his
family of money and other personal belongings, but also kidnapped his 16 year old
daughter, Sally, whom they used as ‘leverage’ to ensure that the complainant would
not call the police until they had safely made their get-away. Sally was subsequently
found on the side of the road in Kimberly, Northern Cape, a day after the being
kidnapped, whereupon she alleged that all three suspects had taken turns raping her.

(1) In the context of South African court hierarchy, which court(s) court has/ have the
jurisdiction to try Ed’s case? (1)

Answer:

High/ Regional Court

(2) Briefly discuss, in light of the circumstances under which the crimes were
committed, which court enjoys the territorial jurisdiction to try the offences against Ed
Crook. (3)

The answer to this question is to be located on page 41, 3rd par. Students would have
noticed, when attempting to answer the question, that any of the aspects dealt with in
said passages of the Handbook finds application:

“(2) Where it is uncertain in which of several jurisdictions an offence has been

committed, it may be tried in any of such jurisdictions.”

The above passage states the general rule which intimates that the proceedings may
be held in any jurisdiction where an offence is alleged to have occurred. If this

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passage/ rule is chosen as a correct representation of the model answer, the latter
would, therefore, not be incorrect. However, the statement would still need to be
qualified by plausible reasons as to why the rule is applicable.

“(3) A person charged with an offence may be tried by the court of any district or any
regional division, as the case may be, wherein any act, omission or event which is an
element of the offence took place.”

It may be argued, in the context of the facts above, that in respect of the crime of
robbery with aggravating circumstances, theft is an integral element of the crime of
robbery, implying necessarily that the stolen items (or part thereof) would have been
taken through (at least) three jurisdictions. This means that the case in this regard may
be heard in Cape Town, Kimberly and Bloemfontein (on the supposition that Ed settled
there ‘immediately’ after the commission of the offences). The same principle applies
to the crime of kidnapping in terms of which it may be presumed, supposedly occurred
over different jurisdictions.

“(4) A person charged with theft of property or with obtaining property by an offence,
or with an offence which involves the receiving of any property by him or her, may also
be tried by the court of any district or regional division, as the case may be, wherein
he or she has or had part of the property in his or her possession.”

The same comments provided in respect of par. 3 above (as they relate to the offence
of robbery with aggravating circumstances) are also applicable in this regard.

“(5) A person charged with kidnapping, child-stealing or abduction may also be tried
by the court of any district, or of any regional division, through or in which he or she
conveyed or concealed or detained the person kidnapped, stolen or abducted.”

The same comments provided in respect of par. 3 above (as they relate to the offence
of kidnapping) are also applicable in this regard.

“(6) Where, by any special statutory provision a magistrate’s court has jurisdiction in
respect of an offence committed beyond the local limits of the district (or of the regional
division), such court is not deprived of such jurisdiction by any of the provisions of s 90
of the Magistrates’ Courts Act.”

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“(7) Where an accused is alleged to have committed various offences within different
districts within the area of jurisdiction of any director of public prosecutions, the latter
may in writing direct that criminal proceedings be commenced in a magistrate’s court
within his or her area of jurisdiction as if such offence had been committed within the
area of jurisdiction of such court. A regional court within whose area of jurisdiction
such magistrate’s court is situated shall likewise have jurisdiction in respect of such
offence if the offence may be tried by a regional court—s 90(8), Act 32 of 1944.”

The most probable and accurate answer of the question is encapsulated in par. 7. In
other words, any of the Directors of Public Prosecutions (DPP) in charge of the
prosecutorial jurisdictions in Cape Town, Kimberly and Bloemfontein may cause the
charges against Ed to be heard in the jurisdiction.

(3) Soon after the arrest, the investigating officer, Trigger Happy, advises Ed that he
(Ed) does not at this stage of the proceedings ‘need the services of a lawyer’. These
lawyers are at any rate, blerrie useless and expensive’. Critically discuss Trigger
Happy’s comments around the question of legal representation during the stage of the
proceedings alluded to in the set of facts. (10)

The model answer to the question is to be found on page 103, par. 3

Model Answer:

The right to legal assistance is one of the most important rights of a person suspected
of the commission of an offence. This right applies regardless of whether he or she
has been formally charged with the offence. (See p. 101 par. 1)

In terms of s 73 (1) every arrested person is entitled to legal representation. Section

73(2B) goes further by requiring every accused person to be afforded the opportunity
to obtain legal representation. In addition, the accused s 73(2A) requires every
accused person to be informed about their right to obtain legal representation. The
right to be informed about legal representation is entrenched in the Constitution (s
35(2)(b)) which requires every arrested person to be informed promptly of their right
to legal representation.

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Every arrested person who is in detention from the moment of their arrest immediately
qualifies for this right. The right may be exercised at any stage – that is, from the
moment of arrest, until the trial stage and beyond.

From the facts, it is clear that Trigger Happy not only failed to inform Ed about this
right, but actively tried to dissuade him from obtaining legal representation. His actions
are not only morally and ethically wrong, but also unlawful.

(4) Trigger Happy also ‘encourages’ Ed, who is not legally represented at the time of
arrest, to ‘make a clean breast of things’, and to ‘tell his side of the story so that he
(Trigger) can go easy on him’. Briefly explain, with specific reference to s 35 of the
Constitution, Ed’s rights in this regard. (6)

The model answer to the question is to be found on page 20 - 21, par. 3.5

Model Answer:

The Constitution guarantees the right of every arrestee to remain silent (s 35(1)(a)). In
addition, the Constitution also recognizes the right not to be compelled to make a
confession or admission which could be used in evidence against him or her
(s 35(1)(c)).

Directly related to the right to remain silent is the so-called privilege against self-
incrimination or the right to a passive defence. The accused can remain silent even if
their answers would not be self-incriminating. This applies to the pre-, pleading, trial
phase and sentencing stage of the proceedings. The context in question refers to the
pre-trial stage.

Trigger Happy’s attempts at somehow convincing Ed to ‘tell his side of the story’ is a
violation of the above-mentioned Constitutional rights, and are unlawful.

(5) Ed subsequently engages the services of an attorney, Clever Trevor. Clever is of

the view that the crimes with which the prosecution can charge ED have, in fact,
‘expired’, and that the prosecutor, Elvin Persecutor, should ‘do the honourable thing
and stop the prosecution’. Briefly:

(a) explain, with specific reference to s 18 of the CPA, the cogency of Clever’s
contention. (6)

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The model answer to the question is to be found on page 79, par. 4.15

Model Answer:

In terms of s 18 of the CPA, the right to institute a prosecution for any offence lapses
after the expiration of a period of 20 years from the time when the offence was
committed, unless the law expressly provides otherwise.

Section applies in respect of common-law and statutory offences. Robbery with

aggravating circumstances and kidnapping are common-law offences are common-
law offences which are expressly excluded from the prescription to prosecute in terms
of section 18.

The crime of rape, which was previously recognized as a common-law offence is

currently covered under the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007, and does not, therefore, have a prescription period.

Clever Trevor’s assertion that the crimes have prescribed is, therefore, incorrect.

(b) discuss the feasibility of Clever’s argument for a ‘stopping of the prosecution’ in
light of the facts set out above. (3)

The model answer to the question is to be found on page 79, par. 4.14.2

Model Answer:

The prosecution may at any time after an accused has pleaded, but before conviction,
stop the prosecution in respect of that charge. If this is done, the accused is entitled
to an acquittal.

In respect of the case in point, the accused has not yet pleaded to the charges. The
prosecution, can, therefore, not be stopped. However, the charges may be withdrawn,
and be re-instated subsequently depending on the discretion of the prosecutor.

Clever Trevor’s suggestion about the stopping of the prosecution at this stage of the
proceedings is, therefore, incorrect.

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CRIMINAL PROCEDURE NOTES:

CRIMINAL PROCEDURAL SYSTEM:

Substantive law: WHAT: it sets Adjectival/procedural law: HOW:

out what each persons rights and what procedure must be followed
duties are, what the definition of for a sanction to be put into
the different crimes are and what operation when a legal rule is
the sanctions are when the rules contravened = how do we remedy
are contravened – e.g. Criminal the wrong – e.g. Criminal
law procedure, Civil procedure,
Evidence.

Distinction between public and private law:

Private law: rules which have Public law: consists of rules

regard to the relationship existing which have regard to the
between individual people = relationship existing between
family law and contract authority and the individual, the
individual occupying the
subordinate position = criminal
law and criminal procedure.

Crime control vs due process:

Crime Control Due Process:

This is based on the idea that the The aim of the criminal justice
point of a criminal justice system system isn’t to secure a conviction
is to prevent criminal conduct and sentence by any means
possible but rather to ensure the
results are properly achieved by
following procedure = looking at
the rights of the person during all
the pre and post trial stages.
It is said that the criminal
procedure system tends to over
emphasise the rights of the
criminal and neglect the rights of
victims. The response to this is
that two wrongs don’t make a
right, in other words just because
someone is a victim of crime, it
does not suspend the rule of law.

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JURIDICAL GUILT:
Is the idea that its not NB to secure a verdict by any means BUT the
rules of evidence and criminal procedure should be complied with =
this places the onus on the state to prove guilt beyond a reasonable
doubt

RIGHTS OF SUSPECTS AND A:

In the constitution the A is protected in terms of S35.

This provides rights for both an arrested as well as an A person.

The rights of arrested people:

S35 of the constitution provides:
Every arrested person shall have the right:
1. To be informed, in an understandable language, that he has the
right to remain silent and the consequences of making a
statement. (S35 (a) & (b))
2. Not to be compelled to make a confession or admission, which
could be used in evidence against him. (S35 (1)(c))

These rights are only for arrested persons

The rights of an accused person:

S35 (3) of the constitution provides:
Every accused shall have the right to a fair trial, which includes the
right:
1. To be informed of the charge with sufficient details to answer it
2. To be presumed innocent, to remain silent during the plea
proceedings as well as during the trial and not to testify during
the trial
3. To adduce and challenge evidence and not to be a compellable
witness against himself

Only accused people have these rights, they arise once the arrested
person has been charged with committing an offence.

The right to silence:

The right to silence is ALSO called the privilege against self-
incrimination. This right is afforded to both an arrested and an A
person.
The Constitution guarantees the right of every ARRESTEE to remain
silent – person has a right to silence in the pre-trial and trial stages.

If the A is unrepresented, he should be told of his rights which

include: right to representation, right to silence, right to call
witnesses, the right to cross examine etc.

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Under common law the A silence could have an adverse inference, as

it would be seen as circumstantial evidence of his guilt. As an
innocent man would protest his innocence.

The A can’t be penalized for exercising one of his rights = no adverse

inference can be drawn because the A remains silent for 2 reasons:
1. There may be a number of reasons why the A remained silent,
i.e. he doesn’t trust the system, ignorant, afraid or he thinks
the States case is weak.
2. If the State doesn’t prove all the elements of the crime, the A
silence doesn’t mean that the missing element is proved = his
silence can’t fill the gaps in the States case.

BUT the A case can be affected by his silence:

If the state has proved all the elements of the crime (the State has a
prima facie case) and the A hasn’t spoken – no doubt would have been
raised and the court will have no choice but to find the A guilty.

The presumption of innocence – legal guilt:

In criminal procedure the victim is the complainant, but the State
prosecutes. The victim is therefore NOT the plaintiff but only a
WITNESS for the state.
The victim is represented by the state and the accused is represented
by his attorney.

Before a charge is laid, a person is merely a suspect –

• Suspect: someone who hasn’t been charged = an arrested person.
• Accused: a person who has been charged with a crime.

Due to the presumption of innocence, everyone is regarded as

innocent until they are properly convicted by a court of law. This
presumption is created to put the burden on the state to prove their
case beyond a reasonable doubt.

Therefore an accused (A) may appear to be morally guilty of the crime

but this doesn’t necessarily mean that he will be found legally guilty –
OJ Simpson.

The prosecution must prove guilty beyond a reasonable doubt. The

onus rests on the prosecution because of the presumption of
innocence.

The prosecution must prove every element of the crime beyond a

reasonable doubt. The A only has to create doubt.
If the state does prove a prima facie case and the A does nothing to
disturb that case, the prima facie case may harden into proof beyond
a reasonable doubt, as there is nothing that produces doubt in the
courts mind about the A’s guilt.

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The accused (A) can raise reasonable doubt by cross-examining state

witnesses, producing contrary evidence etc.
The accused only needs to prove that there is a possibility that the
states version may not be\ true, even if the State’s case seems more
convincing.

The court must make its decision in an objective impartial manner,

looking at the admissible evidence presented in court.

S35 (3) (h) of the constitution: every accused person has the right to
a fair trial, which includes the right:
• To be presumed innocent
• Remain silent
• Not testify during proceedings

When the state violates rights in terms of the Bill of Rights the
arrested or A person has certain Remedies:

Civil action for damages: this could be used for a wrongful arrest, if
the police act without a warrant or contrary to the circumstances the
Act provides when they can arrest with a warrant, it gives rise to
delictual liability. The plaintiff must prove all the elements of delict

Criminal prosecution: the suspect or A could lay a charge if he is

unlawfully assaulted by the police during arrest.

Writ Habeas Corpus: application interdict: is an order where the police

are forced to exhibit the person in court. This remedy is resorted to, to
get judicial review of police action and protects a subject against
unlawful deprivation of liberty. The court is asked for an order that
the respondent produces the body of the detainee before the court and
show reason why he shouldn’t be released. The person bringing the
application must have prima facie reasons why the detention is
wrongful.

Interdict: is issued on urgent application and the applicant must

prove:
1. The existence of a right
2. The fact that the right has been infringed
3. The fact that no other remedy is available

Prohibitory interdict: is to stop the unlawful/ wrongful conduct

Mandatory interdict: force compliance with a legal duty

Exclusionary rule: S35 (5) of the Constitution: evidence obtained in

a manner that violates any rights in the Bill of Rights must be
excluded if the admission of that evidence would render the trial
unfair or would otherwise be detrimental to the administration of

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justice – e.g. hearsay, privileged information, information received

through torture etc.

Informal remedies: when there is an unlawful arrest, the arrestee can

resist arrest or escape from unlawful custody

Constitutional mechanisms: if state conduct amounts to a violation of

ones fundamental rights, S172, can be used in order to declare the
Act or conduct inconsistent with the constitution

ROLE OF THE VICTIM:

In our criminal system prosecutions are generally instituted by the

Prosecuting authority and due to the adversarial system, there is a
fight between the PP and the A. The victim/complainant is merely a
witness for the state.

It is said that our current criminal procedure system is offender-

orientated to the detriment of the victim and that present measures
aimed at protecting or enhancing victim participation are generally
insufficient.

Victim participation:

In offences of a sexual nature, investigating officers are obliged to

obtain “impact statements” from the victim. These statements set out
the nature and extent of the offence against the victim as well as how
this has affected the victims life. The impact statement is brought to
the attention of the prosecutor and this statement is made before the
victim testifies.

In crimes of a serious nature, relatives or complainants have the right

to make representations at the convicted persons parole hearing.

Victim protection
The indictment of the A generally contains the name and address of
potential state witnesses – this information can however be excluded if
the witness could be intimidated

If there is a possibility that the witness could be harmed - they could

testify behind closed doors or by means of CCTV and their identity not
revealed = this however limits the A rights in terms of S35 to a fair
trial in that he has the right to confront his accuser. If the witness
feels threatened in anyway or believes that he (or his family) will be
harmed he may in terms of the Witness Protection Act apply to be
placed under protection.

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If the witness is below the physical or mental age of 18, the court may
require the services of an intermediary if the court feels that the
criminal proceedings would expose a witness to undue mental stress.

The victim can also institute a private prosecution when the

prosecuting authority declines to prosecute.
NB!!!!!! (please study role of the victim in conjunction with the
section relating to private prosecutions)

RESTORATIVE JUSTICE UNDER THE CJA:

In Matyiti 2011, Ponnan JA said restorative justice seeks to emphasise

that a crime is more than the breaking of the law or offending the
state – it is an injury or wrong done to another person.

Def: Approach that aims to involve the child offender, the victim, the
families + community members to together id and address harms,
needs and obligations – accept responsibility, restitution, prevent
reoccurrence and reconciliation

Restorative Justice Sentences:

Child Court can following a conviction – refer matter to family group
conference / victim-offender mediation

The Child Justice Act (CJA) 75 of 2008:

• Criminal justice system for children

• Possibility of diverting matters dealing with / involving children
• If not diverted – dealt in the criminal justice system in child
justice courts (CJC):
• Persons under the age of 18
• CJC – any court dealing with a child
• Is child and adult charged together in terms of S155, 156
and 157 – the CJA must be applied to the child and the
CPA to the adult

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JURISDICTION

The general rule is that before a court can exercise jurisdiction it must
be established that the offence was committed within that jurisdiction

Jurisdiction in respect of offences committed on SA territory:

General rule: the crime must have been committed in SA, to be tried
in an SA court.

Provincial Divisions of the High Court: have original jurisdiction in

respect of all offences committed in their respective areas:
Extension to this rule:
a) Hull: one division has jurisdiction to put into effect a suspended
sentence, imposed by another division.
b) Civil Aviation Act: an offence is deemed to have been committed
any place the A happens to be
c) Fairfield: if an Act confers jurisdiction on a Magistrate Court in
respect of an offence, the provincial and local divisions won’t be
excluded from hearing the trials
d) S111 of the CPA: the NDPP can order a trial in a court within
the jurisdiction although the offence was committed within
another area of jurisdiction, if it’s in the interests of the
administration of justice – MUST BE ISSUED B4 the indictment
is served on the A – Mamase 2010.

Regional and district courts (Magistrate courts):

General rule: S90 of the Magistrates Court Act: district or regional
courts have jurisdiction to hear trials in respect of offences committed
in that district or regional division.
Extension to the general rule in terms of S90:
4km rule: when a person is charged with any offence:
1) Committed within a distance of 4km beyond the boundary of
the district or regional division.
2) Committed on a vessel or in a vehicle on a journey on a river in
SA and such journey or part of it was performed in the
district/regional division or within 4km thereof or
3) Committed on board a vessel on a voyage within the territorial
waters of SA and these waters adjoin the district/regional
division, or
4) Begun or completed in the district or regional division.
Such person may be tried within the district or regional division, as if
he were charged with an offence committed within that
district/regional division.

The 4km rule applies only in SA and not to crimes committed beyond
our borders.

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Also in terms of S90: where it’s uncertain in which of several

jurisdictions an offence was committed, it may be tried in any such
jurisdiction.
A district or regional court may try an offence of the act or omission or
even an element of the offence was committed within that division.

Any person charged with theft or receiving stolen property knowing it

to be stolen may be tried in any division where he had such property
in his possession.

Person charged with kidnapping or abduction may be tried in any

division through or in which he conveyed, concealed or detained the
victim.

Where the A committed several offences in different districts falling

within the DPP’s area, he can order in writing that the matters all be
heard in one Magistrate Court in his area.

In terms of S110 of the CPA: if a person is wrongly charged before a

particular court and fails to object timorously, such court will acquire
jurisdiction.
S111: the NDPP has the power to move a trial from one DPP’s area to
another.

Jurisdiction in respect of offences committed outside SA

General rule: courts will only exercise jurisdiction with respect to
offences committed in SA.
Exceptions:
a) High treason: SA citizen who is resident in a foreign country and
joins the enemy army in wartime
b) Theft committed in a foreign country but the A has the stolen
property in SA – theft is a continuing crime
c) Offences on ships: territorial waters are part of the state, if the
offence was committed on the open water (which is the
jurisdiction of no state) the courts need to look at the effects
and property involved
d) Offences outside SA on a non-SA plane – plane lands in SA with
the offender of board/ the principal place of business or
permanent residence of the lessee of the plane is in SA/ offender
is present in SA.
e) Offences committed on territory subsequently annexed by SA
f) Offences committed on an SA plane wherever it is (Civil Aviation
Act)
g) Offences committed by a SA citizen in Antarctica – jurisdiction
of the Cape Magisterial District
h) Offences deemed to be committed where A happens to be
i) Embassies: diplomats remain subject to the jurisdiction of their
home states.

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SENTENCING JURISDICTION:

High Courts:
• Imprisonment including imprisonment for life
• Periodical imprisonment – also called weekend imprisonment
• Declaration as an habitual criminal
• Committal to a treatment center
• Fine
• Correctional supervision
• Imprisonment from which the A is place under correctional
supervision.

Regional Courts: can’t hear charges of High treason

• Imprisonment not exceeding 15 years
• Fine not exceeding R600 000 (R40 000 per year)
• Periodical imprisonment
• Declaration as an habitual criminal
• Committal to a treatment center
• Correctional supervision
• Imprisonment from which the A is place under correctional
supervision.

District courts: can hear cases dealing with Rape, Robbery with
aggravating circumstances and murder
• Imprisonment not exceeding 3 years
• Fine not exceeding R120 000 (R40 000 per year)
• Imprisonment from which the A is place under correctional
supervision
• Committal to a treatment center
• Periodical imprisonment

HIGH COURT REGIONAL COURT DISTRICT COURT

Have original May try all crimes Can try all crimes
jurisdiction in respect except treason except:
of all offences o Treason
o Murder
o Rape

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PUBLIC PROSECUTIONS
In SA the state prosecuted offences and the victim of the alleged
offence is a witness for the state.
The state is represented by public prosecutors and the A is
represented by his legal representative.

Constitutional provisions:
S179 of the Constitution provides for a single national prosecuting
authority, which consists of NDPP and DPP’s.
This authority has the power to institute proceedings on behalf of the
State.
Parliament passed the National Prosecuting Act to give effect to S179.
The prosecuting authority consists of the following:
• NDPP: appointed by the president
• DNDPP
• DPP
• DDPP
• PP

Any person appointed as NDPP or DNDPP must have qualifications

that enable him to practice in all courts in the Republic and he must
be a fit and proper person.
The NDPP will hold office for a non-renewable term of 10 years
The NDPP can be suspended for misconduct, continued ill health,
incapacity to carry out his duties and on account of no longer being a
fit and proper person.

Legislation must make sure that the prosecuting authority practices

without fear or favour, they must be independent
The prosecuting authority isn’t part of the judiciary

Powers, functions and duties of the NDPP

1. He has authority over the exercising of all powers and
performance of all duties conferred in the Constitution
2. He determines prosecution policy and issues directives
3. He must intervene when the directives aren’t complied with.
4. He can review a decision to prosecute or not prosecute.
5. Where an offence was committed within the jurisdiction of
one DPP, he can direct that the investigation and
proceedings be conducted in the area of another DPP.
6. He can conduct any investigation he deems necessary in
respect of the prosecution process
7. He can direct the submission of and receive reports from the
DPP’s
8. He can advise the Minister of Justice on all matters relating
to the administration of criminal justice
9. He must maintain close liaison with the DNDPP and DPP’s
10. He must consider recommendations, suggestions and
requests concerning the prosecuting authority.

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11. He must assist the DPP’s and PP’s in achieving effective and
fair administration of criminal justice and representing their
professional interests.
12. He must prepare a report in respect of the operations of the
prosecuting authority.
13. He must advise the Minister of Justice on creating a
structure in terms of which any person may report
complaints or improper conduct.
14. He must frame a code of conduct, which shall be complied
with by members of the prosecuting authority.
15. He must develop training programmes fro prosecutors
16. He has the power to institute and conduct prosecutions in
person.

Powers, duties and functions of the DPP’s

1. Qualifications of the DPP are the same as those for the NDPP
2. A DPP must report to the NDPP
3. He may institute and conduct criminal proceedings and
carry out functions for his area.
4. He may supervise, direct and co-ordinate the work of the
DDPP’s and PP’s in his area.
5. He can conduct investigations
6. An investigating director may institute any action or
prosecute an appeal in any court in the Republic.
7. He must at the request of the NDPP, submit reports to him.
8. He must submit annual reports to the NDPP
9. He is responsible for the day-to-day management of the
DDPP and PP under his control.
10. He may prosecute and appeal in court

PROSECUTING AUTHORITY AND THE POLICE:

There is a National police service, which is an independent
government organ under the control of the relevant minister. Their
actions are governed by the SA Police Services Act.
The police must investigate and prevent crimes.
The police do exercise a discretion in which they must not bring trivial
matters to the attention to the prosecuting authority. BUT the
decision to prosecute rests with the prosecuting authority.

This separation between the police and the prosecution keeps them
objective and allows for co-operation between them regarding the
investigating and preparing for trial.
The police prepare the docket for submission to the prosecuting
authority, who then decides whether or not to prosecute

Police investigate when they get a complaint from the public, on their
own initiative o on the instructions of the prosecuting authority.
Police prepare the docket for the PP who decides whether to prosecute
or not.

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The PP looks at: witnesses statements, documentary evidence and real

evidence – he has control over the investigation and can give
instructions to the investigating officer.
BUT he cant actively participate in the investigation – must avoid
becoming a potential state witness.

THE PROSECUTING AUTHORITY AND THE COURT

The courts have on rare occasions expressed their disapproval of the
fact that a prosecution is instituted. However the courts cannot in
principle, interfere with a bona fide decision of the prosecuting
authority.

The courts can at most impose a lenient sentence, reflecting their

opinion that the prosecution was unwarranted.
If convinced of the triviality of the case, the court may acquit the A –
de minimus non curat lex.

On the whole the courts are reluctant to comment on the bona fide
discretion exercised by the prosecuting authority. This is because
once the A is on trial; he will have the opportunity to put his defence
to the court.
HOWEVER, the courts can intervene when the discretion is used
improperly: where mala fides can be proved.

S92 of CJA: - if it comes to the attention of the court / probation

officer that a child has been used by an adult to commit a Schedule1
/ 2 crime – report adult to SAPS, consider prosecution, adults
involvement to be considered when dealing with the child in the child
justice system

DISCRETION TO PROSECUTE:
A prosecutor has a duty to prosecute if there is a prima facie case and
no compelling reason for refusal = “if there is a reasonable prospect of
success”.
In exercising this discretion, the DPP/PP must respect the individual’s
right not to be harassed by a prosecution that has no real prospect of
success.

When considering whether or not to prosecute prosecutors take into

consideration the following factors:
Nature and seriousness of the offence:
- The seriousness of the offence taking into account the view of
the victim and the manner in which it was committed.
- The nature of the offence as well as the economic impact of the
offence on the community.

Interests of the victim and the broader community:

- The attitude of the victim towards the continuing or
discontinuing of the prosecution.

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Circumstances of the offender:

- Previous convictions of the offender
- Whether the accused has admitted guilt or whether the accused
shows remorse and is willing to co-operate with the authorities.
- Whether an alternative to prosecution would be better suited to
the situation, in accordance to the objectives of the criminal
justice system.

On rare occasions there are good grounds for refusing to prosecute,

despite there being a prima facie case:
a) Triviality of the offence.
b) Advanced age of the A
c) Young age of the A
d) Tragic personal circumstances of the A (father who causes
the death of his children through negligent driving)

When exercising the discretion, the police should not knowingly allow
a pattern of contravention to develop and then arrest and prosecute
and the DPP mustn’t exercise his discretion in a discriminatory way.

PRESCRIPTION:

The right to prosecute shall lapse after the expiration of 20 years

(unless some other period is expressly provided by law) from the time
the offence was committed. The following common law crimes have NO
PRESCRIPTION period
- Murder
- Treason
- Robbery with aggravating circumstances
- Kidnapping
- Child stealing
The following statutory crimes have NO PRESCRIPTION period
- Rape
- Compelled Rape
- Trafficking in persons for sexual purposes
- Using a child who is mentally ill or disabled for pornographic
purposes

PP AS DOMINUS LITIS:
The PP is the master of the case, in that he determines the charges,
the date and place of the trial.
❖❖ He formulates and consolidates the charges, in that they can be
heard in one trial (S83)
❖❖ He determines the order in which the accused are called
❖❖ The JO has no authority to close the states case if the
prosecution is unwilling

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Withdrawing a charge and stopping a prosecution

Withdraw charge: Stopping a prosecution:

❖❖ The DPP/PP has a ❖❖ The DPP may at any time
discretion to withdraw the after the A has pleaded,
charge BUT before conviction, stop
❖❖ BEFORE the A pleads the prosecution in respect
❖❖ The A isn’t entitled to an of the charge.
acquittal and he may be ❖❖ The A is then entitled to an
prosecuted again if new acquittal and can later
evidence is discovered. successfully rely on
❖❖ PP can withdraw a charge autrefois acquit (previous
without the consent if his acquittal).
DPP (if the DPP isn’t ❖❖ PP CANNOT stop a
satisfied with the PP’s prosecution without the
withdrawal, he can charge consent of the DPP.
the A afresh).

DIVERSION i.t.o the CJA:

Diversion – of a matter involving a child away from the formal court

procedure – PP can initiate / play active role in diversion

Diversion by PP - minor offences (schedule 1) – S41 & 42

Prosecutorial diversion:

• Section 41 provides that prosecutors have the authority to

diversion certain matters before the preliminary inquiry.
However, this only applies if it involves a Schedule 1 offence and
the diversion may only be to a level 1-diversion option.

• In addition, this may only occur if the prosecutor is satisfied

that certain factors are present. These factors include that the
child must acknowledge responsibility for the offence; there
must be a prima facie case (enough evidence to institute a
prosecution) against the child; the child must not be unduly
influenced; and the child and his or her parent, guardian or
appropriate adult must consent to the diversion.

• Furthermore, if it is a child who is 10 years or older but under

the age of 14 years, the prosecutor must be satisfied that
criminal capacity can be proved.

• In order for this type of diversion to happen, the child must

have been assessed. However the prosecutor can dispense with

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the assessment if it is in the best interests of child and the

reasons for dispensing with the assessment must be recorded
on the court record by the magistrate in chambers who will
make the diversion an order of the court.

• If the prosecutor thinks that the child is in need of care and

protection, then prosecutorial diversion cannot occur. Instead,
the child must be referred to a preliminary inquiry for the
inquiry magistrate to consider referring the child to the
children’s court.

• In making a decision to divert a child in terms of section 41, the

prosecutor must take into account whether the child has a
record of previous diversions.

• If the prosecutor is faced with a child where he or she decides

not to divert even though it is a Schedule 1 offence, for example,
if there are many previous diversions, then he or she must
make arrangements for the child to appear at the preliminary
inquiry.

Section 42 provides that where a prosecutor has diverted a matter

involving a child, then the child and (where possible) his or her
parent, guardian or appropriate adult must appear before a
magistrate in chambers to make the diversion option an order of the
court.

Diversion by PP – after preliminary enquiry / during trial (S51 &

52)

Section 52(1) provides that a matter may be considered for diversion

at the preliminary inquiry (or later at trial before the child justice
court) if:
• The child acknowledges responsibility for the offence;
• The child has not been unduly influenced to
acknowledge responsibility;
• There is a prima facie case against the child;
• The child has consented to the diversion along with his
or her parent, guardian or appropriate adult if available;
and
• The prosecutor (in relation to Schedule 1 and 2 offences)
or the DPP (in relation to Schedule 3offences) indicates
that the matter may be diverted.

Where the prosecutor or DPP decides to divert a matter, the

requirements of section 52(2) and (3) must be met.

In terms of section 52(2), a prosecutor can divert a Schedule 1 or 2

offence if the views of the victim or any other person who has a direct

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interest in the affairs of the victim are considered (unless not

reasonably possible to do so) and he or she has consulted with the
police official responsible for the investigation of the matter.

Section 52(3) provides that the relevant DPP who has jurisdiction of
the matter is the person who may divert a matter involving a Schedule
3 offence. This illustrates how cautious the legislature was when
considering the diversion of a matter where a Schedule 3 offence was
committed. However, such matters can only be diverted if exceptional
circumstances exist (as determined by the National Prosecuting
Authority (NPA)) and the DPP must indicate his decision to divert such
matters in writing.

The DPP must also afford the victim the opportunity to express his or
her views on whether the matter should be diverted; the nature and
content of the diversion option being considered; and the possibility of
including in the diversion option a condition relating to compensation
or the rendering of a specific benefit or service. The DPP must then
consider the views expressed and must consult with the police official
responsible for the investigation of the matter.

The Act provides that a matter can be postponed in order to get the
necessary written indication from the DPP to divert a matter involving
a Schedule 3 offence. Once received, this written indication must be
handed to the magistrate and becomes part of the record of the
proceedings.

NB TO DISTINGUISH BETWEEN LEVEL 1 AND LEVEL 2

DIVERSION ORDERS:
Level 1 – schedule 1 offences only
Level 2 – schedule 2 & 3 (more serious offences)

Factors to consider if diversion followed – S54

• Cultural / religious background of the child

• Educational level and domestic circumstances
• Proportionality with regard to circumstances of the child /
nature of the offence / interest of society
• Child’s age / development needs

May also develop “Individual diversion option” – must be in line with

S51
S55 provides:
Must strike a balance between the circumstances of the child and the
nature of the offence + interest of society
• Cant harm child physically / mentally
• Must be appropriate re age / maturity
• Cant interfere with schooling
• Cant exclude certain children due to lack of resources

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• Sensitive to circumstances of victim

If possible:
• Impart useful skills
• Heal relationships (victim as well)
• Understand impact of behavior
• Location must be accessible by the child
• Be suitable in a variety of circumstances
• Be able to measure effectiveness
• Equal application
• Involve parents / guardian/ appropriate adults if applicable

NB – schedule for child offences different from schedule for adult

offences!!!!!

• Broadly speaking, Schedule 1 contains minor offences,

• Schedule 2 more serious offences and
• Schedule 3 the most serious offences. There are also
maximum time limits for diversion set out in section
53(5), which are linked to both the level of the diversion
option and the age of offender.

Level 1:
Applies to Schedule 1 offences, and if any time period is applicable,
may not exceed –
✓✓12 months in the case of children under the age of 14 years, and
✓✓24 months for children 14 years of age or older.

Level 2:
Applies to Schedule 2 and Schedule 3 offences, and if any time period
is applicable, may not exceed –
✓✓24 months in the case of children under the age of 14 years, and
✓✓48 months for children 14 years of age or older.

Level 1-diversion options range from informal orders to admission to

formal interventions and programmes.
They consist of:
• An oral or written apology;
• Formal caution, with or without conditions;
• Placement under a supervision and guidance order;
• Reporting order;
• Compulsory school attendance order;
• Family time order;
• Peer association order;
• Good behavior order;
• An order prohibiting the child from visiting,
• Frequenting or appearing at specified places;
• Referral to counseling or therapy;
• Compulsory attendance of vocational, educational or

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therapeutic programmes;
• Symbolic restitution;
• Restitution of a specified object;
• Community service;
• Provision of some service or benefit by the child to a victim; and
• Payment of compensation.

The level 2 diversion options include the possibility of options

available under level 1, but then supplement those with more
intensive interventions in order to address the seriousness of the
offence that the level 2 options cater for. In addition to the level 1
option, further level 2 options include:
• Compulsory attendance of vocational, educational or
therapeutic programmes, which may include a period of
temporary residence;
• Referral to intensive therapy, which may include a period of
temporary residence; and
• Placement under the supervision of a probation officer on
conditions, which may include the restriction of the child’s
movement without prior written approval.

Section 53(7) provides for family group conferences, victim offender

mediations or other restorative justice processes to be available as
diversion programmes and are not restricted to a particular level.

DIVERSION OF SCHEDULE 3 MATTERS – 52(3)

DPP can in writing say that a schedule 3 offences may be diverted in

EXCEPTIONAL CIRCUMSTANCES only (as determined by the NDPP)

• Particular youthfulness
• Particularly low development of a child
• Presence of particular hardship / vulnerability / handicap
(heads a household)
• Victim prefers diversion to trial cause doesn’t want to testify in
court
• Compelling mitigating circumstances
• Child used by adult to commit crime
• Witness for the prosecution are fragile / unwilling
• If proceed with trial could be damaging to child witness / victim
DPP – can’t delegate this power

DIVERSION of schedule 3 offences may only take place upon the

written indication of the DPP

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CRIMINAL CAPACITY OF CHILDREN

CL – infans (infants) (not yet 7 years of age) lack criminal capacity –

thus immune from prosecution.
CJA – child below age of 10 lacks criminal capacity and cant be
prosecuted

CL – impubes (no longer infant but not yet 14) – rebuttably presumed
to lack criminal capacity
CJA – child 10 years or older but not yet 14 – presumed to lack
criminal capacity, unless prosecution proves child has criminal
capacity
HOW = prove BRD at time of offence child understand diff between
right and wrong and act accordingly – if found to be lacking such
understanding – refer child to probation officer to be dealt with same
as child under 10 years of age.

IF HAVE UNDERTSANDING – divert if schedule 1 / refer to

preliminary inquiry

Factors to consider (10 -14)

• Educational level, environmental, domestic circumstances
• Age and maturity
• Nature and seriousness of offence
• Impact on victim
• Interest of community

WITHDRAWL OF CASES AGAINST CHILDREN

Cant merely withdraw case against child if best interest of the child
calls for intervention – in line with S28 (2) of the Constitution: ‘a
child’s best interests are of paramount importance in every matter
concerning the child.’

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PRIVATE PROSECUTUIONS

CRIMINAL PROCEDURE ACT:

S12: Mode of conducting private prosecution.
1. A private prosecution shall, subject to the provisions of this Act,
be proceeded with in the same manner as if it were a prosecution at
the instance of the State: Provided that the person in respect of
whom the private prosecution is instituted shall be brought before
the court only by way of summons in the case of a lower court, or
an indictment in the case of a superior court, except where he is
under arrest in respect of an offence with regard to which a right of
private prosecution is vested in any body or person under section 8.

2. Where the prosecution is instituted under section 7 (1) and the

accused pleads guilty to the charge, the prosecution shall be
continued at the instance of the State.

S13:Attorney general may intervene in private prosecution. An

attorney-general or a local public prosecutor acting on the
instructions of the attorney-general, may in respect of any private
prosecution apply by motion to the court before which the private
prosecution is pending to stop all further proceedings in the case in
order that a prosecution for the offence in question may be instituted
or, as the case may be, continued at the instance of the State, and the
court shall make such an order.

S14: Costs in respect of process. A private prosecutor, other than a

prosecutor contemplated in section 8, shall in respect of any process
relating to the private prosecution, pay to the clerk or, as the case
may be, the registrar of the court in question, the fees prescribed
under the rules of court for the service or execution of such process.

S15: Costs of private prosecution. (1) The costs and expenses of a

private prosecutor shall, subject to the provisions of subsection (2), be
paid by the private prosecutor.
(2) The court may order a person convicted upon a private prosecution
to pay the costs and expenses of the prosecution, including the costs
of any appeal against such conviction or any sentence: Provided that
the provisions of this subsection shall not apply with reference to any
prosecution instituted and conducted under section 8: Provided
further that where a private prosecution is instituted after the grant of
a certificate by an attorney-general that he declines to prosecute and
the accused is convicted, the court may order the costs and expenses
of the private prosecution, including the costs of an appeal arising
from such prosecution, to be paid by the State.

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S16.Costs of accused in private prosecution.

(1) Where in a private prosecution, other than a prosecution
contemplated in section 8, the charge against the accused is
dismissed or the accused is acquitted or a decision in favour of the
accused is given on appeal, the court dismissing the charge or
acquitting the accused or deciding in favour of the accused on appeal,
may order the private prosecutor to pay to such accused the whole or
any part of the costs and expenses incurred in connection with the
prosecution or, as the case may be, the appeal.

(2) Where the court is of the opinion that a private prosecution was
unfounded and vexatious, it shall award to the accused at his request
such costs and expenses incurred in connection with the prosecution,
as it may deem fit.

CONDUCT OF A PRIVATE PROSECUTION:

Due to the fact that the prosecutor has discretion whether or not to
prosecute, some cases may be disregarded.
In such a situation a private person can institute criminal proceedings
in lieu of the state

The private prosecution must be instituted and conducted in the

name of the private prosecutor – all process must be issued in the
name and at the expense of the private prosecutor.
The names are reported as follows: Smith v Jones, instead of state v
the accused

A still has right to a fair trial (S35) as guaranteed in the Constitution –

Bothma v Els

2 requirements:
1. A private prosecutor must have locus standi and
2. Produce the certificate nolle prosquie before he can initiate any
proceedings.

Locus standi of a private prosecutor:

1. Any private person who proves SUBSTANTIAL AND PECULIAR
INTEREST in the issue of the trial, arising out of some injury,
which he suffered in consequence of the offence – there must be
a causal connection between the injuries, suffered by the private
prosecutor and the commission of the offence.
2. A husband if the offence is committed in respect of his wife
3. A wife or child, if none, any next of kin of a deceased person, if
the death is alleged to have been caused by the offence.
4. The legal guardian or curator of a minor or lunatic, if the
offence was committed against the ward.

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The certificate nolle prosequi:

No private prosecutor wanting to proceed may do so, unless he
produces the certificate nolle prosequi.
This certificate is signed by the DPP, in which he confirms:
a) He has examined the statements on which the charge is based
and
b) He declines to prosecute.

The DPP can’t investigate whether the person has locus standi; at trial
the A can raise lack of locus standi.
The certificate will lapse unless proceedings are instituted within 3
months of the date of the certificate.

Deposit:
No private prosecutor may issue any process commencing a private
prosecution unless he deposits R2500 with the Magistrates Court =
security that the private prosecutor will prosecute the charge without
undue delay.

If the private prosecutor doesn’t appear on the day set down for
appearance, the charge against A will be dismissed UNLESS, the court
has reason to believe that the private prosecutor was prevented from
being present by circumstances beyond his control.

Generally the costs and expenses of the prosecution will be paid for by
pay the costs.

The DPP can apply for proceedings to be stopped so that the

prosecution may be instituted or continued at the instance of the
State.

PVT PROSECUTION AND THE CJA

S59 (2) – can’t institute private prosecution against a child if matter

diverted in terms of the CJA

S18 of the CPA: Prescription of right to institute prosecution. The

right to institute a prosecution for any offence, other than the offences
of—

1. Murder;
1. Treason committed when the Republic is in a state of war;
2. Robbery, if aggravating circumstances were present;
3. Kidnapping;
4. Child-stealing;
5. Rape
6. The crime of genocide, crimes against humanity, war crimes

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Shall, unless some other period is expressly provided by law, lapse

after the expiration of a period of 20 years from the time when the
offence was committed.

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RIGHT TO REPRESENTATION:

The A is represented by his legal representative:

Introduction
The A in terms of the Constitution has the right to representation; this
is entrenched in the fact that he has the right to a fair trial

This right has been entrenched in S35 of the constitution and

confirmed in S73 of the CPA.
The effect of S35 is that the arrested as well as the A person must be
provided with legal representation at the expense of the state if
substantial injustice would result.
The A must accept the legal representation appointed by the State.

The right to assistance in the pre-trial stage

S35 entrenches a detained person’s right to choose and consult with a
legal practitioner and be promptly informed of this right.
A person who has been arrested is in detention from the moment of
his arrest and thus immediately qualifies for this right.
However the arrested person is entitled to exercise his rights at any
stage during his detention.

NB: the arrested person must be informed of this right in a manner

that it can reasonably be supposed that he understood the right and
the importance of it.
The state is required to inform the detained person of his rights at the
time of his arrest. HOWEVER he must in addition be informed of this
right at every stage where his co-operation is required.
If he isn’t so informed, any evidence so obtained can’t be used against
him at the trial.

The right to assistance during the trial

S35 states that the A must be told his rights – the judicial officer has
a duty to inform an unrepresented A that he has the right to be legally
represented.
The judicial officer must explain this right and point out to the A that
he has the right to be assisted by a legal representative with whom he
can communicate in his own language or through an interpreter.
A failure on the part of the judicial officer can lead to a complete
failure of justice.

When the court explains to an undefended A of his right to

representation and the A who is facing serious charges, elects to
represent himself – the court should ask why and if the A is under
some misunderstanding, it must set it right.
HOWEVER: only to inform the A of his right is worthless, if he is too
poor to afford it.

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THUS: the constitution provides that the A must be informed that he

is entitled to have legal representation appointed for him, at the States
expense, if substantial injustice would otherwise result.

Duty to afford the A an opportunity to get legal representation

The right to legal representation includes the right to be afforded a
reasonable opportunity of securing it.
So the A may apply for a postponement to enable him to get
representation.

In certain instances a failure by the court to grant a postponement,

amounts to an irregularity.
If the A’s representative withdraws from the case, the court should
ask the A whether he wants to instruct another legal representative or
whether he wishes to undertake his own defence.
A failure to do so invalidates proceedings. BUT if the A is given ample
opportunity to get legal representation and he doesn’t, he can’t then
attack the proceedings, unless he has a reasonable explanation for his
failure.

If the failure by the court a quo to allow a postponement is found to be

irregular, the conviction will be set aside.

The role of the legal representative

A trained legal representative must assist the A.
An A under 18 may also be assisted by his parents or guardian in
terms of the CPA.
S73 of the CPA: if the court believes it’s necessary that another person
assist the A, the court can grant permission to the A.

The court won’t allow the same advocate to defend two A with
interests that conflict in a material respect.
Generally the A is bound by what is done by his legal representative in
the execution of his mandate during the trial.

Accessibility of the legal representative

Pro deo council (state appoints) is appointed for an indigent A in
certain serious cases.
If the charge isn’t of a serious nature and the A cannot afford
representation, the court sometimes has a duty to determine (before
the trial) whether the absence of a representative for the A would
prejudice him to such an extent, that continuation of the trial would
result in an unfair trial.

If the court believes that the A should be assisted, it must refer the
matter to a legal aid scheme or lawyers willing to do pro bono work.
The court should decline to continue the trial until such time that the
legal representation is procured.

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The legal aid board grants legal aid to needy people – so do public
defenders.

The duty of the PO to inform a person of a right to legal

representation

Radebe: the PO has a duty to inform an unrepresented A of their right

to legal representation under common law = Where the charge is
serious and justifies a sentence that is prejudicial to the A =
encourage her to take advantage of her right to legal representation
and afford her an opportunity to obtain legal counsel

Dyanti: the court made a distinction between the constitutional right

to retain legal council at the states expense when a material injustice
would arise without it and the common law right to legal
representation, which entails the right to be informed about it, as well
as the right to apply to the legal aid board for legal assistance and the
opportunity to retain it.
We are of the opinion that the A should also be informed of his
constitutional rights

Legal consequences of a failure to inform the A of this right:

Dyanti: the court decided that where the PO fails to inform the A of his
common law right to representation, an irregularity might arise.
The irregularity doesn’t in itself result in an unfair trial that will
persuade the court of appeal to set the conviction aside.
Q: whether the conviction has been affected by the irregularity – the A
will have to show on appeal or review that the irregularity resulted in
a failure of justice.
An irregularity will lead to a failure of justice where there has been a
real or material prejudice to the A.

The test to determine whether the irregularity of failure to inform the

AS of his common law right led to failure of justice is:
where the A suffered no prejudice, no failure of justice has been
caused, just as there will be no injustice if the A were found guilty all
the same, regardless of the irregularity and even if the PO didn’t
neglect to inform him of his right.
The A is entitled to show prejudice by submitting a declaration under
oath to the court of appeal in which it was stated that she was
unaware of her common law right and therefore unable for lack of
legal representation to submit her defence during the trial.
Also had she been aware of this right, she would have exercised it,
either by getting council on her own or with the assistance of the legal
aid board.

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CRIMINAL PROCEDURE ACT:

Substantial injustice will arise in respect of a person who is the

accused at proceedings if legal representation is not made available to
the accused at state expense in circumstances where the accused is
unable to afford the cost of his/her own legal representation in respect
of the contemplated proceedings.

Assignment of legal representation at State expense

If the legal aid applicant qualifies for legal aid in terms of the means
test or in terms of the decision of the Director the legal aid officer
receiving the application for legal aid shall instruct a legal practitioner
to represent the legal aid applicant

In the event of a prisoner declining and/or failing to apply for legal

representation at state expense the presiding judicial officer concerned
shall nevertheless be entitled to advise the legal aid officer of the
magisterial district in which the proceedings are scheduled to take
place and/or are taking place that the said presiding judicial officer
considers it to be in the interest of justice that a legal practitioner be
appointed to represent the said prisoner. Upon receipt of such a
notification by a presiding judicial officer the legal aid officer shall act
as if the prisoner had applied for and qualified for legal aid.

LEGAL REPRESENTATION OF CHILDREN

Child has equal rights to an adult when it comes to a right to legal

representation – S35

Parents / guardians / appropriate adults – assist children in

proceedings & participate in decisions affecting the children

The legal representative must:

• If possible allow child to give independent instructions
• Explain rights and duties in language / terms understandable
by the child
• Promote diversion – BUT cant influence child to accept
responsibility
• Try prevent delay and always insure best interest of the child
• Highest standard of ethical behavior and professional conduct

AT PRE-TRIAL STAGE

Children to be detained n ltd circumstances ONLY

Child must be assessed by PO & preliminary inquiry to be held – see if
matter to be diverted / charged in child justice court

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PO to conduct an ASSESSMENT – to gather certain info such as:

• Age if not determined
• Protection of child if needed
• Any previous convictions / diversion / pending charges
• Make recommendations
• Is child u/10 or 10 – 14 with unlikeliness to have criminal
capacity – establish measures: counseling / therapy / etc
• 10 – 14 see if expert evidence needed to determine capacity
• Was child used by adult to commit offence
• Any other relevant info in best interest of child

Po must explain purpose of assessment to the child and allow the

presence of person (incl legal rep) necessary for the assessment.
Info provided by any person - inadmissible evidence during bail / plea
/ trial / sentencing in which child appears.

PRELIMINARY INQUIRY – informal pre-trial (inquisitorial) held in

court / suitable place = CJA doesn’t prevent representation by legal
rep at the inquiry.

NATIONAL INSTRUCTIONS TO THE POLICE – internal directives that

are binding on police officials + if not followed = internal disciplinary
action

• Provision for a child in conflict with the law to be assisted by

parent / guardian / appropriate adult
• Consult with / have legal rep present if making admission /
confession / pointing-out / appear as suspect in id parade

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THE ACCUSED: HIS PRESENCE AS A PARTY

The general rule: S158 of the CPA:

All criminal proceedings must take place in the presence of the
accused, unless provided for otherwise.
This provision applies at all times during the trial, verdict and
sentencing stages.

This rule is also confirmed in S34 and S35 of the constitution:

S34: everyone has the right to have any dispute that can be resolves
by application of law, decided in a fair public hearing by a court.

S35 (3): every accused person has the right to a fair trial, which
includes the right:
1. To a public trial before an ordinary court
2. To be present when being tried
3. To adduce and challenge evidence

Radebe: the magistrate changed the A’s suspension of his drivers

license in his absence. On review it was held that the magistrate acted
irregularly

This rule illustrates that the A must not only know what the witnesses
have said but there must also be a confrontation (i.e. he must see
them as they testify against him.
The denial of this fundamental right of the A amounts to a failure of
justice that will lead to the setting aside of his conviction on appeal or
review.

Exceptions to the general rule:

Generally all criminal proceedings must take place in the presence of
the A - but this need not happen when:

1. Trial in the absence of the A on account of his misbehavior:

S159 (1) of the CPA: says that if the A conducts himself in such
a manner as to render the continuance of the proceedings in his
presence impractical, the court may order him to be removed
and may direct that the trial proceed in his absence.

The court will only do this as a last resort and they would rather
prefer to postpone or temporarily adjourn and continue later in
the presence of the A.

Before using S159 the court should 1st warn the A that he could
be removed.
And the A should, if removed, be given a further opportunity to
be brought back to the proceedings and asked if he wants to
give evidence.

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2. Absence of the A where there is more than 1 A:

If 2 or more A appear jointly, the court may allow an A to be
absent, where he has applied for this on the following grounds:
a) His physical condition is such that he isn’t able to attend
b) Its necessary for him to be absent due to death or illness
of a family member

• If the A is absent as a result of S159 (misbehavior)

or simply without the leave of the court, then the
court can order that the proceedings continue in
the absence of the A. BUT the court will only do so
if the delay would cause undue prejudice,
embarrassment or inconvenience.
• The court can also order a separation of trials –
when the A returns the proceedings will then
continue from the point at which he became
absent.
• If the proceedings continue in his absence, he may
examine witnesses who had testified during his
absence and can also inspect the record.

3. Evidence by means of CCTV:

A witness or an A can give evidence by means of CCTV, if the
facilitates are available and if it would be: convenient, prevent
delays, save costs, be in the interest of the state or there is a
likelihood that the person could be harmed if they testify

Reasons must be provided if an u/14 is refused to give evidence

by cctv

4. Payment of a fine without appearance in court

S57:
This is called an admission of guilt.

If the clerk of the court believes that the magistrate, on

convicting the A, will impose a fine not exceeding R5000 he can,
when he issues the summons – endorse the summons to the
effect that the A may admit his guilt in respect of the offence
and pay the fine stipulated on the summons WITHOUT
appearing in court.

After the A has made his 1st appearance, BUT before he has
pleaded, the PP may hand to the A a written notice with a
similar endorsement

A can pay the admission of guilt to the clerk of the Magistrate

Court or to the police.

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The summons may stipulate a date by which the admission

must be paid.

NB: the admission of guilt amounts to a CONVICTION and

SENTENCE and will be regarded as a PREVIOUS CONVICTION.

The PP can reduce the amount of the fine if good cause is

shown.
This procedure is only used for statutory offences (e.g. traffic
offences)

Compounding of minor offences:

S341:
Difference between compounding and admission of guilt:
Compounding of minor offences Admission of guilt
Offender pays the amount in Offender pays the amount in the
order not to be prosecuted summons or written notice to
prevent going to court
By paying it doesn’t amount to a By signing the A = convicted and
previous conviction and sentence. sentenced

Compounding of minor offences is only used in minor traffic offences

and contravention of local authorities – parking ticket.

CRIMINAL PROCEDURE ACT:

S158: Criminal proceedings to take place in presence of accused.
1. Except as otherwise expressly provided by this Act or any
other law, all criminal proceedings in any court shall take
place in the presence of the accused.
2.
a. A court may, subject to section 153, on its own
initiative or on application by the public prosecutor,
order that a witness or an accused, if the witness or
accused consents thereto, may give evidence by means
of closed circuit television or similar electronic media.
b.A court may make a similar order on the application of
an accused or a witness.
3. A court may make an order contemplated in subsection (2)
only if facilities therefore are readily available or obtainable
and if it appears to the court that to do so would—
a. Prevent unreasonable delay
b.Save costs
c. Be convenient
d.Be in the interest of the security of the State or of public
safety or in the interests of justice or the public; or
e. Prevent the likelihood that prejudice or harm might

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result to any person if he or she testifies or is present

at such proceedings.
4. The court may, in order to ensure a fair and just trial, make
the giving of evidence in terms of subsection (2) subject to
such conditions as it may deem necessary: Provided that the
prosecutor and the accused have the right, by means of that
procedure, to question a witness and to observe the reaction
of that witness.

S159: Circumstances in which criminal proceedings may take

place in absence of accused.
1. If an accused at criminal proceedings conducts himself in a
manner, which makes the continuance of the proceedings in
his presence impracticable, the court may direct that he be
removed and that the proceedings continue in his absence.
2. If two or more accused appear jointly at criminal proceedings
and—
a.T The court is at any time after the commencement of
the proceedings satisfied, upon application made to it
by any accused in person or by his representative—
i. That the physical condition of that accused is
such that he is unable to attend the proceedings
or that it is undesirable that he should attend
the proceedings; or
ii. That circumstances relating to the illness or
death of a member of the family of that accused
make his absence from the proceedings
necessary; or
b.A ny of the accused is absent from the proceedings,
whether under the provisions of subsection (1) or
without leave of the court, the court, if it is of the
opinion that the proceedings cannot be postponed
without undue prejudice, embarrassment or
inconvenience to the prosecution or any co-accused or
any witness in attendance or subpoenaed to attend,
may—
i. In the case of paragraph (a), authorize the
absence of the accused concerned from the
proceedings for a period determined by the court
and on the conditions which the court may deem
fit to impose; and
ii. Direct that the proceedings be proceeded with in
the absence of the accused concerned.
3. Where an accused becomes absent from the proceedings in
the circumstances referred to in subsection (2), the court
may, in lieu of directing that the proceedings be proceeded
with in the absence of the accused concerned, upon the
application of the prosecution direct that the proceedings in

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respect of the absent accused be separated from the

proceedings in respect of the accused who are present, and
thereafter, when such accused is again in attendance, the
proceedings against him shall continue from the stage at
which he became absent, and the court shall not be required
to be differently constituted merely by reason of such
separation.
4. If an accused who is in custody in terms of an order of court
cannot, by reason of his physical indisposition or other
physical condition, be brought before a court for the
purposes of obtaining an order for his further detention, the
court before which the accused would have been brought for
purposes of such an order if it were not for the indisposition
or other condition, may, upon application made by the
prosecution at any time prior to the expiry of the order for
his detention wherein the circumstances surrounding the
indisposition or other condition are set out, supported by a
certificate from a medical practitioner, order, in the absence
of such an accused, that he be detained at a place indicated
by the court and for the period which the court deems
necessary in order that he can recover and be brought before
the court so that an order for his further detention for the
purposes of his trial can be obtained.

S160. Procedure at criminal proceedings where accused is absent.

1. If an accused referred to in section 159 (1) or (2) again
attends the proceedings in question, he may, unless he was
legally represented during his absence, examine any witness
who testified during his absence, and inspect the record of
the proceedings or require the court to have such record read
over to him.
2. If the examination of a witness under subsection (1) takes
place after the evidence on behalf of the prosecution or any
co-accused has been concluded, the prosecution or such co-
accused may in respect of any issue raised by the
examination, lead evidence in rebuttal of evidence relating to
the issue so raised.
3.
a. When the evidence on behalf of all the accused, other
than an accused who is absent from the proceedings,
is concluded, the court shall, subject to the provisions
of paragraph (b), postpone the proceedings until such
absent accused is in attendance and, if necessary,
further postpone the proceedings until the evidence, if
any, on behalf of that accused has been led.
b. If it appears to the court that the presence of an absent
accused cannot reasonably be obtained, the court may
direct that the proceedings in respect of the accused
who are present be concluded as if such proceedings

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had been separated from the proceedings at the stage

at which the accused concerned became absent from
the proceedings, and when such absent accused is
again in attendance, the proceedings against him shall
continue from the stage at which he became absent,
and the court shall not be required to be differently
constituted merely by reason of such separation.
c. When, in the case of a trial, the evidence on behalf of all
the accused has been concluded and any accused is
absent when the verdict is to be delivered, the verdict
may be delivered in respect of all the accused or be
withheld until all the accused are present or be
delivered in respect of any accused present and
withheld in respect of the absent accused until he is
again in attendance.

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REQUIRMENT OF REASONABLENESS:

The Bill of Rights in the constitution protects the property and

personality rights of individuals.
In terms of criminal law, the rights, which could be infringed, include:
❖❖ The rights to body
❖❖ Freedom
❖❖ Honour
❖❖ Dignity
❖❖ Privacy
❖❖ Property.

These rights aren’t however unlimited and can be limited in the

interests of society and the interests of others.

When a right in the Bill of Rights is being limited, it must be justified

in terms of S36
The limitation:
a) Must be contained in the law of general application
b) Must be reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom

In considering whether a particular limitation complies with these

requirements, a court must take into consideration all relevant factors
including:
a) The nature of the right
b) The NB of the purpose of the limitation
c) The nature and extent of the limitation
d) The relation between the limitation and its purpose
e) Less restrictive means to achieve the purpose

In criminal prosecutions the aim is to protect the interests of society

and bring offender to justice.

The requirement of reasonableness in the exercise of the powers

Certain guidelines can be followed:

a) The requirement of reasonableness may be described as a

requirement that there be reasonable grounds from which an
inference can be drawn
b) A person will only be said to have reasonable grounds to believe
or suspect something or that certain action is necessary if:
1. He really believes or suspects it
2. His belief or suspicion is based on grounds and
3. In the circumstances and in view of these grounds an
reasonable person would have had the same belief or
suspicion

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c) There must be grounds (facts) for the suspicion or belief, if the

suspicion or belief is reconcilable with the available facts
d) Once a person has established what the facts really are, he will
evaluate them and make an inference from those facts with
regard to the existence or otherwise of other facts, which he is
at the time, unable to establish
e) Once he has made the inferences that the other facts exist, it
can be said that the person himself believes or suspects that
such facts exist
f) BUT the mere fact that a certain person believes or suspects
that certain facts exist, isn’t sufficient to regard his belief as one
based on reasonable grounds as required by law. This will only
be the case if it can be said that any reasonable person would
have held the same belief in the circumstances
g) A person can therefore be said to have reasonable grounds to
believe or suspect something if he actually believes it based on
facts from which he ahs drawn an inference and if any
reasonable person would also have drawn the same belief.

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SECURING THE ATTENDANCE OF THE A:

In terms of S38 of the CPA: there are various means by which an A’s
attendance at the trial may be secured:
1. Summons
2. Written notice to appear
3. Indictment
4. Arrest

SUMMONS:
This is used for a summary trail in a lower court where the A isn’t in
custody or about to be arrested.
This will be used if the state has no reason to believe that the A will
abscond, attempt to hamper police investigations or attempt to
influence state witnesses.

S54:
1. PP draws up the charge, with info relating to the name,
address and occupation of the A and hands it to the
clerk of the court.
2. The clerk issues the summons specifying the place,
date and time for appearance of the A in court and
specifies the charge.
3. Clerk hands the summons to the person empowered to
serve.
4. Summons is served by delivering it to the person
named therein, or if he can’t be found, by delivering it
to his place of residence, employment or business or to
a person over 16 and apparently residing there.
5. Service must take place at least 14 days before the
date fixed for trial.

If the person summoned fails to appear, he commits an offence and is

liable to a fine or imprisonment not exceeding 3 months (S55).
The court may issue a warrant for the A arrest and must endorse it to
the effect that the A may admit his guilt in respect thereof and pay the
amount stipulated.

CJA:
• Can summons a child to appear at preliminary inquiry
• Served on child in presence of parent / guardian / appropriate
adult who must sign to acknowledge receipt
• If not possible – serve on child and copy ASAP thereafter on
parent / guardian – both must sign to acknowledge receipt
• Inform of allegations against the child / explain procedure /
warn to appear @ place with date & time (parent to bring child)
• Notify PO concerned within 24hours after service on child

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WRITTEN NOTICE TO APPEAR:

Used if a peace officer on reasonable grounds believes a magistrate

court, on convicting the A won’t sentence him to a fine exceeding
R5000

Procedure:
1. Hand the A written notice: specifying the name, address and
occupation of the A
2. The notice will call on the A to appear at a place, on a date and
at a specific time to answer the charge.
3. The notice will contain an endorsement that the A may admit
his guilt and pay a fine without appearing in court (S57)
4. The notice will contain a certificate signed by the peace officer –
saying he handed the original notice to the A and explained the
importance thereof

CJA:
• Written notice permitted in case of schedule 1 offence
• Cant make provision for child to admit and pay guilt fine
• Hand to child in present of parent / guardian who must sign
• If not, hand to child and ASAP to parent / guardian = both sign
• Inform of allegations against the child / explain procedure /
warn to appear @ place with date & time (parent to bring child)
• Notify PO concerned within 24 hours of handing notice to child

INDICTMENT:

Used for trial in a superior court and is drawn up in the name of the
DPP
Contains:
1. The charge
2. The name, address, sex, nationality and Age of the A.
3. Summary of substantial facts
4. List of names and addresses of state Witnesses.

The indictment together with the notice of the trial is served on the A
at least 10 days before the date of trial – unless the A agrees to a
shorter period.

ARREST

Arrest leads to the infringement of a number of rights = including the

right to freedom of movement, for this limitation of such rights to be
valid there are strict requirements for arrest

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REQUIREMENTS FOR LAWFUL ARREST:

1. The arrest must be properly authorized = it must be done in

terms of a valid warrant or in circumstances without a warrant
governed by S40
2. The arrestor must exercise physical control over the arrestee –
he must limit the arrestee’s freedom of movement = actually
touching the person, or if required forcibly confining him.
3. Must inform the arrestee of the reason for his arrest and if
applicable hand over the warrant on demand.
S35 (2)(a): he has the right to be informed of the reason for his
arrest, once told of this reason his detention will be lawful. The
arrestee’s custody will be unlawful if this requirement isn’t
complied with BUT the detention will become lawful if he is
informed later of the reason
The exact wording of the charge need not be conveyed.
• If a child is arrested the police official must – inform child
of allegations / rights / explain procedure + notify parent
/ guardian of arrest
4. The arrestee must be taken to the appropriate authorities as
soon as possible: S50 (1): the arrestee must as soon as possible
be brought to a police station = reason for this is that the A
must not be detained for longer than 48 hours, but this period
begins to run from the time the suspect is at the station

Min of Safety and Security v Sekhoto and another – confirmed

above requirements + said there is no additional jurisdictional
fact that there must be no less invasive options available in
order to bring the suspect before court, before an arrest will be
lawful

ARREST WITH A WARRANT:

WARRANT = written order directing that a person described in
the warrant be arrested by a peace officer in respect of the
offence set out in the warrant.

The issue of the warrant:

DPP, PP or police can apply in writing to the magistrate or justice
of the peace to issue a warrant for the arrest of a person.
Such application must:
1. Set out the alleged offence
2. Allege that the offence was committed in the area of jurisdiction
of the magistrate or if not the arrestee is suspected of being in
the area
3. State that from information taken upon oath there is reasonable
suspicion that the person (named in the warrant) committed the
alleged offence.

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A warrant may be issued on any day and remains in force until its
cancelled or executed.
A warrant issued in one district is valid in all other districts in SA

CJA – warrant issued u/s43 re a child must state that the child be
brought to appear at a preliminary inquiry

Execution of the warrant of arrest:

Executed by a peace officer (S44)
Peace officer: includes – magistrate, justice of the peace etc.

Person isn’t liable if he reasonably believed that he was arresting the

correct person (i.e. the person named in the warrant) and arrests the
wrong person.
The test is whether the reasonable person, who takes reasonable care,
would have believed that the arrestee was the person named in the
warrant

A warrant of arrest permits a peace officer to execute the warrant –

BUT no obligation on him to do so – S44: does not intend & never
intended to prevent a PO from exercising a discretion not to arrest
should circumstances requirements that (Theobald v Min of Safety &
Security)

S39 (2): the arrestee can demand a copy of the warrant – if the
policeman doesn’t have a copy of the warrant when it is demanded –
then the arrest will be unlawful (Minister van Veiligheid v Rautenbach)

CJA – limits powers to arrest a child

• Cant arrest a child between 10 – 18 for schedule 1 offence
unless compelling reasons exist
Reasons:
• Doesn’t have fixed address
• Will continue to commit offence unless arrested
• A danger to himself or others
• Offence in process of being committed

ARREST WITHOUT A WARRANT:

Sometimes the delay caused by getting a warrant will enable the
suspect to escape – so provision must be made for arrest without a
warrant in certain circumstances.

ARREST MADE BY POLICE OFFICERS:

S40: every peace officer may without a warrant arrest:

1. Anyone who commits or attempts to commit any offence in
his presence (Mhlana)

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2. Any person he reasonably suspects of having committed a

Schedule 1 offence:
a. The PO must be certain the act constitutes a crime
b. Reasonably suspects that there is a factual basis for
Suspicion
c. The PO need not at this stage have the intention of
bringing the arrested person to court to be prosecuted
d. A reasonable suspicion with and intention to make
further inquiries is enough.

3. Person who has escaped or attempted to escape from lawful

custody – Such person must KNOW that the arrestee has
escaped lawful custody
4. Anyone who has in his possession any housebreaking
implement and who can’t account for possession to the
satisfaction of the PO = the possession of housebreaking/car
breaking implements in suspicious circumstances = an
offence in terms of CPA.
5. Any person found in possession of anything that the PO
reasonably suspects to be stolen
6. Person found at any place at night in circumstances where
the PO reasonably suspects the person has committed or is
about to commit an offence – the purpose of the arrest is to
investigate whether the person committed an offence or not.
7. Person reasonably suspected of being in unlawful possession
of stock or produce
8. Person reasonably suspected of committing an offence under
any law governing the making, supply, possession or
conveyance of liquor, drugs or arms and ammunition.
9. Any person gambling unlawfully
10. Person who obstructs a PO in the execution of his duties
11. Anyone against whom a reasonable suspicion exists of him
committing an offence outside SA, which if committed in SA,
would be an offence and for which he is under any law
relating to extradition of fugitive offenders, liable to be
arrested.
12. Person reasonable suspected of being an illegal immigrant
13. Person reasonably suspected of being a deserter of the SADF
14. Person reasonably suspected of failing to comply with a
condition imposed in the postponing of passing sentence
15. Person reasonably suspected of having failed to pay a fine
16. Person who fails to surrender himself to undergo periodical
imprisonment

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GETTING THE NAME AND ADDRESS OF A SUSPECT:

S41 of the Criminal Procedure Act:

PO can call upon any person:
a. Who he ha the power to arrest
b. Who he reasonably suspects of having committed and
offence or
c. Who may be able to give evidence with regard to an
offence
To furnish his name and address.

If such person fails to give his name and address or there is

reasonable suspicion that the name and address are false, the PO can
arrest him and detain him for up to 12 hours.
Failure by such a person to give his name and address or giving a
false name = punishable by a fine or imprisonment without the option
of a fine for a period of 3 months.

ARREST BY A PRIVATE PERSON:

S42: a private person can, without a warrant, arrest the following:

1. Person who commits or attempts to commit a Schedule 1

offence in his presence or who he RS of having committed
such an offence
2. Person who he reasonably believes has committed an offence
and is escaping from someone authorized to arrest him
3. Any person he is entitles to arrest in terms of law (e.g. stock
theft)
4. Any person he sees engages in a fight
5. Any owner, lawful occupier or person in charge of property
on which a person is found committing an offence.

This power of private individuals should be exercised sparingly

PROCEDURE AFTER ARREST:

An arrested person must be brought to a police station as soon as
possible after his arrest – because of the 48-hour rule
S50 envisages 2 periods of custody:
1. Arrest before the arrival to the police station
2. Period after arrival at the police station.

Once at the police station, he is in the custody of the police and can’t
be detained for more than 48 hours.
Normal enforcement officers (other than the police) don’t have powers
of detention. (E.g. where the arrested person is unlawfully detained in
the back of a municipal police van because police cells are full)

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Once he is in police custody he is either:

a) Released because no charges are brought
against him
b) Brought before a lower court within 48 hours
(1st appearance)

At his court appearance the following could happen:

1. He is either remanded in custody pending further investigation
or for his trial or
2. Be released on bail or warning.

The 48 hour rule is extended by S50:

If the 48-hour period expires:
a) On a day which isn’t a court day, or on a
court day after 4pm, then the period is
deemed to expire at 4pm on the next court
day = if a person is arrested on Wednesday
evening, the 48 hour period is deemed to
expire the next Monday at 4pm
b) On any court day before 4pm, then the
period is deemed to expire at 4pm on such
a day
c) While the arrestee is outside the
jurisdiction of the court and he is at the
time of expiry in transit from the place of
detention to the court, then the period is
deemed to expire at 4pm on the next court
day after the day on which the arrestee
was brought into the courts area of
jurisdiction. (Hoco v Mtekana)
d) Deemed to expire at a time when the
arrestee can’t be brought before the court
because of his physical illness or condition
be brought before the court. The court can
order he be detained at a place specified
(hospital) for such period that the court
may deem necessary so he can recuperate
– to prevent abuse.

Periodical court: if the 48hr period expires on a day when periodical

court isn’t in session, the arrested person should be brought before a
district court which has jurisdiction over the area of the periodical
court.
If the arrestee is held for more than 48 hours, detention is unlawful
and his escape won’t be unlawful = Mtungwa

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SPECIAL MEASURES RELATING TO CHILDREN

CHILD u/10
• Lack criminal capacity = cant be prosecuted
• If child u/10 commits offence = hand child over to parent /
guardian / if not in best interest to hand to aforementioned /
not available = to suitable child / youth care centre
• NOTIFY PO
• PO to assess the child asap not later – 7days

After assessment:
• Refer child to children’s court / counseling / therapy /
program to suit needs of u/10 /arrange support services
/ meeting with parent / guardian

CHILD above 10 BUT below 18

• Right not to be detained – last resort only – then only for
shortest possible time
• Kept separate from adults & boys / girls separate
• Protected against maltreatment / neglect / abuse etc
• Not endanger the child’s well-being / eddo / physical /
mental health
• Cant arrest for schedule 1 offence – unless compelling
reasons
• If schedule 2 / 3 – police official must take into
consideration same reasons
• If arrested, release into care of parent / guardian asap
and hand written notice

Should child NOT be released from detention b4 prelim – consider

detention in appropriate child / youth care centre if available if not
available – police-cell / lock-up
If a child is to be detained after the prelim - PO to provide inquiry
magistrate with reasons why the child may not be released.

THE DUTY TO ARREST:

General rule: there’s no obligation on a private individual to arrest
someone.
EXCEPTION:
S47 (1): every male 16-60 is required to assist a police official in
arresting and detaining a person if required to do so.
Failure to render assistance is an offence punishable by a fine or
imprisonment for a period not exceeding 3 months.

Civil Aviation Act = Authorizes a person can call on any person to

assist to effect arrest & use such force reasonably necessary to
overcome resistance / prevent fleeing

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RESISTING ARREST AND ATTEMPTS TO FLEE:

USE OF FORCE:

S49 of the CPA: Use of force in effecting arrest

For the purposes of this section—
❖❖ “Arrestor” means any person authorized under this Act to
arrest or to assist in arresting a suspect; and
❖❖ “Suspect” means any person in respect of whom an arrestor
has or had a reasonable suspicion that such person is
committing or has committed an offence.

If any arrestor attempts to arrest a suspect and the suspect resists

the attempt, or flees, or resists the attempt and flees, when it is clear
that an attempt to arrest him or her is being made, and the suspect
cannot be arrested without the use of force, the arrestor may, in order
to effect the arrest, use such force as may be reasonably necessary
and proportional in the circumstances to overcome the resistance or
to prevent the suspect from fleeing: Provided that the arrestor is
justified in terms of this section in using deadly force that is intended
or is likely to cause death or grievous bodily harm to a suspect, only if
he or she believes on reasonable grounds—
1. That the force is immediately necessary for the purposes of
protecting the arrestor, any person lawfully assisting the
arrestor or any other person from imminent or future death
or grievous bodily harm
2. That there is a substantial risk that the suspect will cause
imminent or future death or grievous bodily harm if the
arrest is delayed; or
3. That the offence for which the arrest is sought is in progress
and is of a forcible and serious nature and involves the use
of life threatening violence or a strong likelihood that it will
cause grievous bodily harm.

The onus rest on the arrestor to prove:

a) He was lawfully entitled to arrest the suspect
b) That he attempted to arrest him
c) That the suspect attempted to escape by fleeing or offering
resistance
d) That a degree of force was reasonably necessary to affect the
arrest.

Matlou: in the case of a fugitive its contemplated that the killing will
be justified if the escape cant reasonably be prevented in any other
way. If the circumstances allow, an oral warning must 1st be given,
then a shot in the ground or the air. If that doesn’t succeed, shoot the
suspect in the leg – do everything in ones power to avoid killing or
injuring the suspect.

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Govender: the suspect was driving a stolen car and the police pursued
with their lights flashing. They failed to stop, a police officer on foot
shouted a warning and then fired a shot into the ground, convinced
that the suspect couldn’t be brought to justice in another way, he
fired a shot into the suspects leg – rendering him a paraplegic.
The court used a wide interpretation of the requirement of
reasonableness under S49, and looked at:
o Age of the fugitive
o Whether of not they were armed
o Could they have been brought to justice in another way

Jooste: force used in the course of an arrest must be reasonably

necessary in the circumstances

BEFORE: the use of deadly force while affecting an arrest was justified
in the Act in the sense that it amounted to justifiable homicide.
BUT in Ex Parte: Minister of Safety and Security: In Re S v Walters and
another: the constitutional court declared this section to be
unconstitutional = it can no longer be relied on by someone who kills
a suspect in an attempt to arrest the suspect.

Example
In Basson: B (constable) fired at night at a car he had signaled to stop
and wounded one of the passengers. It appeared that the police had
been informed that 2-armed convicts were fleeing in a stolen Chevrolet.
A ford came past at high speed and didn’t react to B and the other
official’s signs to stop. B then fired. According to the court, B could not
have reasonable grounds to believe that the convicts were in the Ford. In
terms of Transvaal Ordinance, it was an offence for the driver of a car to
refuse to stop if instructed by a police official = driver committed an
offence in the presence of B.
HELD: to seriously assault the offender for this type of offence couldn’t
be justified = B found guilty.

The court in S v Walters: stated the law with regard to the use of
force in order to affect an arrest as follows:

The purpose of arrest is to bring the suspect before court for trial and
arrest isn’t the only was of achieving this.

The purpose of arrest ISNT to punish the offender

If force has to be used it must be REASONABLE and NECCESSARY

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The requirements for the use of force:

The following requirements must be complied with before an
arrestor may use force in order to affect the arrest:
1. The suspect must have committed an offence – if he is
suspected is must be a reasonable suspicion

2. The arrestor must be lawfully entitled to arrest = in terms of a

valid warrant or according to S40

3. The arrestor must attempt to arrest the suspect

4. The arrestor must have the intention to arrest and not to

punish the suspect: must have the intention to bring the
suspect before court

5. The suspect must attempt to escape by fleeing or offering

resistance

6. The suspect must know that an attempt is being made to arrest

him and must be informed of the intention and continue to try
and flee. Barnard

7. There must be no other reasonable means available to effect the

arrest – there are other ways to secure the attendance of a
person

8. May be used to effect the arrest must be reasonably necessary

and proportional in all the circumstances = look at the
requirement of reasonableness

9. The force must be directed at the suspected offender

EXTRADITION:
In terms of international law principles, the government of every
sovereign state has authority over everything happening within the
boarders of that state.
The state doesn’t generally have jurisdiction to punish people for
offences committed elsewhere

Where a person commits a crime in one state and flees to another

state and fails to return of his own accord, the state where the crime
was committed is powerless to act.
Extradition makes provision for such a person to be extradited to the
state in whose area of jurisdiction the crime was committed.

Extradition agreements/treaties have certain corresponding

principles:

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1. Extradition is granted only in respect of serious crimes or

according to the principles of double criminality – if the crime is
punishable in terms of the law of both states.
2. A person isn’t extradited to a foreign state if he is charged with a
crime of a political nature
3. According to the principle of specialty a person is tried in the
state to which he is extradited only for the crime in respect of
which he has been extradited except if the extraditing state
consents to a further new charge
4. Extradition is refused if the crime for which extradition is
sought is punishable by the death sentence in terms of the law
of the state requesting extradition and if the law of the state to
which the request was made, doesn’t make provision for the
death sentence for such crime.
5. An extradition agreement contains a ne bis in idem rule –
corresponds with acquittal and conviction

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INTERROGATION, INTERCEPTION AND ESTABLISHING BODILY

FEATURES

General Powers to interrogate:

The police don’t need any special powers to interrogate

The need for special powers arises only when a person refuses to grant
police access to someone they wish to interrogate, refuses to respond
to police questioning or answers the questions but refuses to give
them his name in order to be subpoenaed to testify.

There is no legal duty on persons to furnish information that they may

have concerning the commission of an offence to the police.

ENTRY TO PREMISIS TO INTERROGATE:

If the person in charge of premises refuses access for the purposes of

interrogation:
S26 of the CPA: police official may, when he reasonably suspects that
a person who may furnish information with regard to any such offence
is on any premises, enter the premises without a warrant to
interrogate such a person and get a statement from him.

BUT: the police may not enter without the consent of the occupier of
the dwelling. This is designed to prevent police getting access without
1st getting permission. If however entry is refused and it will hamper
police investigation:
S27 (1): a police official who may lawfully enter in terms of S26, may
use such force as may be reasonably necessary to overcome any
resistance against such entry, including breaking a door or window.
BUT: the police first audibly demand admission and notify the
purpose for which he seeks to enter the premises

POSSIBLE WITNESSES:
If the DPP or PP requests it, a judge or magistrate can require the
attendance, for examination, of any person likely to give material
information as to the alleged offence

If the person furnishes the information to the satisfaction of the DPP

or PP, he need not appear before a judicial officer BUT if he fails or
refuses to do so it constitutes an offence

S205: is designed to compel a person to reveal his knowledge of an

alleged crime, which knowledge he refused to disclose to the police.

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ASCERTAINMENT OF BODILY FEATURES

S37 of the CPA: getting data through:

o Fingerprints
o ID parades
o Ascertainment of bodily features
o Blood samples
o Photos

Huma: this doesn’t violate the right to silence and dignity.

Only a suspect or A can be fingerprinted and only medical staff take
blood samples.

Xaba: the police wanted to use reasonable force, including a surgical

procedure to remove a bullet from the respondents thigh – he was a
suspect in hijacking and the police believed the bullet would connect
him to the crime. He refused.
The police said that in terms of search and seizure and S37 allowed
for this.
The court said that the police couldn’t search a suspect by operating,
this isn’t covered by S27 and such power could not be delegated to the
doctor.

Data obtained under S37 must be destroyed if the person is acquitted

or criminal proceedings don’t continue

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SEARCH AND SEIZURE

The constitution:
S12: everyone has the right of freedom and security of his person,
which includes the right not to be treated in a cruel, inhuman and
degrading manner.

S14: everyone has the right to privacy, which includes the right not to
have their person, home or property searched or possessions seized.

S35 (5): evidence obtained in a manner that violates any fundamental

right, must be excluded if the admission of that evidence would render
the trial unfair.

S36: these rights may be limited by reasonable and justifiable

limitations imposed by the law of general application.

ARTICLES, WHICH CAN BE SEIZED:

S20 of the CPA: the power to search is granted only where the object
is to find a certain person or seize one of the following articles:
1. Articles used in the commission of a crime, or on reasonable
grounds suspected of being used in the commission of a crime.
2. Articles which may afford evidence of the commission of an
offence
3. Articles, which are intended to be used in the commission of an
offence.
The only exception relates to documents, which are privileged.

SEARCH WARRANT

GENERAL RULE: S21 (1): search and seizure should be conducted in

terms of a search warrant issued by a judicial officer
(magistrate/judge)

The JO must decide if there are reasonable grounds for the search
and he must decide if the article that is to be searched for is one that
may be seized in terms of S20.
The JO must exercise this discretion in a reasonable manner, in
accordance with the law and while taking all relevant facts into
account.

S21 (1): an article referred to in S20 can only be seized in terms of a

search warrant issued:

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1. By a magistrate or justice of the peace who believes that there

are reasonable grounds to believe that the article is in his area
of jurisdiction
2. By a judge or JO who believes the article is required for
evidence.

S21 (2): a warrant must direct a police official to seize the article
must, thus, authorize him to search any person identified in the
warrant and search anyone found on the premises.

Warrants to maintain internal security and law and order:

Warrant in terms of S25

S24 stipulates that if it appears to the magistrate or justice from
information on oath that there are reasonable grounds for believing:
a) That the internal security of the Republic or the maintenance of
law and order is likely to be endangered by or in consequence of
any meeting which is being held or is to beheld on any premises
within his area of jurisdiction
b) That an offence has been or is likely to be committed in his area
He may issue a warrant authorizing a police official to enter the
premises in question at any reasonable time for the purpose
1) Of carrying out such investigations or taking steps
necessary to preserve the internal security of the Republic
or maintain law and order or for the prevention of any
offence
2) Of searching premises or any person on the premises for
an article referred to in S20
3) Of seizing such an article

SEARCH WITHOUT A WARRANT:

The delay in getting the search warrant would defeat the object of the
search.

POLICE:
S22 (a): a police official may search any person, container or premises
for the purpose of seizing an article referred to in S20 if the person
concerned consents to such a search

S22 (a) they can search if such a police official believes on reasonable
grounds that:
1. A search warrant will be issued if he applies for one AND
2. That the delay in getting such a warrant would defeat the object
of the search.

S25 (3) allows a police official to act without a warrant if he believes

on reasonable grounds,

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a) That a warrant will be issued to him under S25 if he

applies AND
b) The delay in getting one would defeat the object

PRIVATE OCCUPIERS OF PROPERTY

S24: any person who is lawfully in charge or occupation of any
premises and who reasonably suspects that
1) Stolen stock or produce is on the premises
2) Any article has been placed therein or is in the custody or
possession of any person on the premises, in contravention of
the law relating to
a. Intoxicating liquor
b. Dependence producing drugs
c. Arms and ammunition
d. Explosives

SEARCH FOR PURPOSES OF MAKING AN ARREST:

In terms of S48 a police official and private person who is:
1. Authorized by law to effect an arrest
2. And who knows or reasonable suspects such a person to be on
the premises may
3. If he 1st audibly demands entry onto the premises and states
the purpose for such entry and fails to gain such entry
4. Break open and enter premises for the purpose of effecting the
arrest

SEARCH OF AN ARRESTED PERSON

S23: On the arrest of any person, the person making the arrest,
provided he’s a police official, may search the person arrested and
seize any article referred to in S20, which is in the possession or
under the control of the arrested person.

If the person making the arrest isn’t a police official, he has no power
to search the arrested person. He does however have the power to
seize an article referred to in S20, which is in the possession or
control of the arrested person.
The private person must hand the seized object to a police official.

If the article could cause bodily harm, he must place it in safe

custody.

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THE USE OF FORCE IN CONDUCTING A SEARCH

S27 (1): a police official who may lawfully search any

person/premises may use such force as reasonable necessary to
overcome any resistance against such entry/search, including
breaking a door or window.

PROVISO: S27 (2) – the police official; must first audibly demand entry
and state the purpose for the search
NOTE: the proviso DOESN’T APPLY if the police official on reasonable
grounds believes that the article that is being searched for any be
destroyed or disposed of = NO KNOCK CLAUSE

General requirements of propriety:

S29: woman shall be searched by woman only.
If no female’s police official is available, the search may be made by a
woman designated for the purpose.
This also applies to males.

CONSEQUNCES OF AN UNLAWFUL SEARCH:

Formal consequences Substantive consequences

S35 (5) of the Constitution: If the police commits an offence
exclusionary rule: evidence liability in terms of a fine or
obtained in a way that violates imprisonment not exceeding 6
FUR must be excluded if the months
evidence would render the trial o Acts against S21 (warrant)
unfair or be detrimental to the o Searched the person
administration of justice without authority
o Performs any act against
S25

The aggrieved person can also claim damages for an unlawful search

Disposal and forfeiture of seized objects

Normally an article seized by a police official is kept in police custody
and if required for criminal proceedings, will be handed to the clerk of
the magistrate court or the registrar of the High court for safe keeping.

At the end of the proceedings the JO must make an appropriate order

in respect of the disposal of the articles – either return to owner or
forfeited to the state.

If no proceedings are instituted, the articles are returned to the person

who may lawfully possess it or they are forfeited to the state.
Once notified a person may take delivery of the item within 30 days,
or it will be forfeited to the state.

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S28: Wrongful search an offence, and award of damages.

A police official who acts contrary to the authority of a search warrant
issued under section 21 or a warrant issued under section 25 (1) who,
without being authorized
❖❖ Searches any person or container or premises or seizes or
detains any article; or
❖❖ Performs any act contemplated in subparagraph (i), (ii) or (iii)
of section 25 (1),
Shall be guilty of an offence and liable on conviction to a fine not
exceeding R600 or to imprisonment for a period not exceeding six
months

Where any person falsely gives information on oath under section 21

(1) or 25 (1) and a search warrant or, as the case may be, a warrant is
issued and executed on such information, and such person is in
consequence of such false information convicted of perjury, the court
convicting such person may, upon the application of any person who
has suffered damage in consequence of the unlawful entry, search or
seizure, as the case may be, or upon the application of the prosecutor
acting on the instructions of that person, award compensation in
respect of such damage, whereupon the provisions of section 300
shall mutatis mutandis apply with reference to such award.

S29. Search to be conducted in decent and orderly manner

A search of any person or premises shall be conducted with strict
regard to decency and order, and a woman shall be searched by a
woman only, and if no female police official is available, the search
shall be made by any woman designated for the purpose by a police
official.

S30. Disposal by police official of article after seizure.

A police official who seizes any article referred to in section 20 or to
whom any such article is under the provisions of this Chapter
delivered—
a. May, if the article is perishable, with due regard to the
interests of the persons concerned, dispose of the
article in such manner as the circumstances may
require; or
b.May, if the article is stolen property or property
suspected to be stolen, with the consent of the person
from whom it was seized, deliver the article to the
person from whom, in the opinion of such police
official, such article was stolen, and shall warn such
person to hold such article available for production at
any resultant criminal proceedings, if required to do
so; or
c. Shall, if the article is not disposed of or delivered under
the provisions of paragraph (a) or (b), give it a

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distinctive identification mark and retain it in police

custody or make such other arrangements with regard
to the custody thereof as the circumstances may
require.

S31. Disposal of article where no criminal proceedings are

instituted or where it is not required for criminal proceedings

If no criminal proceedings are instituted in connection with any article

referred to in section 30 (c) or if it appears that such article is not
required at the trial for purposes of evidence or for purposes of an
order of court, the article shall be returned to the person from whom it
was seized, if such person may lawfully possess such article, or, if
such person may not lawfully possess such article, to the person who
may lawfully possess it.

If no person may lawfully possess such article or if the police official

charged with the investigation reasonably does not know of any
person who may lawfully possess such article, the article shall be
forfeited to the State.

The person who may lawfully possess the article in question shall be
notified by registered post at his last-known address that he may take
possession of the article and if such person fails to take delivery of the
article within thirty days from the date of such notification, the article
shall be forfeited to the State.

S32. Disposal of article where criminal proceedings are instituted

and admission of guilt fine is paid
If criminal proceedings are instituted in connection with any article
referred to in section 30 (c) and the accused admits his guilt in
accordance with the provisions of section 57, the article shall be
returned to the person from whom it was seized, if such person may
lawfully possess such article, or, if such person may not lawfully
possess such article, to the person who may lawfully possess it,
whereupon the provisions of section 31 (2) shall apply with reference
to any such person.

If no person may lawfully possess such article or if the police official

charged with the investigation reasonably does not know of any
person who may lawfully possess such article, the article shall be
forfeited to the State.

S33.Article to be transferred to court for purposes of trial

If criminal proceedings are instituted in connection with any article

referred to in section 30 (c) and such article is required at the trial for
the purposes of evidence or for the purposes of an order of court, the
police official charged with the investigation shall, subject to the

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provisions of subsection (2) of this section, deliver such article to the

clerk of the court where such criminal proceedings are instituted.

If it is by reason of the nature, bulk or value of the article in question

impracticable or undesirable that the article should be delivered to the
clerk of the court in terms of subsection (1), the clerk of the court may
require the police official in charge of the investigation to retain the
article in police custody or in such other custody as may be
determined in terms of section 30 (c).

The clerk of the court shall place any article received in safe custody,
which may include the deposit of money in an official banking account
if such money is not required at the trial for the purposes of evidence.

Where the trial in question is to be conducted in a court other than a

court of which such clerk is the clerk of the court, such clerk of the
court shall—
❖❖ Transfer any article received under subsection (1), other than
money deposited in a banking account under paragraph (a)
of this subsection, to the clerk of the court or, as the case
may be, the registrar of the court in which the trial is to be
conducted, and such clerk or registrar of the court shall
place such article in safe custody
❖❖ In the case of any article retained in police custody or in
some other custody in accordance with the provisions of
subsection (2) or in the case of any money deposited in a
banking account under paragraph (a) of this subsection,
advise the clerk or registrar of such other court of the fact of
such custody or such deposit, as the case may be.

S34. Disposal of article after commencement of criminal

proceedings
The judge or judicial officer presiding at criminal proceedings shall at
the conclusion of such proceedings, but subject to the provisions of
this Act or any other law, under which any matter shall or may be
forfeited, make an order that any article referred to in section 33—
1. Be returned to the person from whom it was seized, if such
person may lawfully possess such article
2. If such person is not entitled to the article or cannot lawfully
possess the article, be returned to any other person entitled
thereto, if such person may lawfully possess the article
3. If no person is entitled to the article or if no person may
lawfully possess the article or, if the person who is entitled
thereto cannot be traced or is unknown, be forfeited to the
State.

The court may, for the purpose of any order hear such additional
evidence, whether by affidavit or orally, as it may deem fit.
If the judge or judicial officer concerned does not, at the conclusion of

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the relevant proceedings, make an order such judge or judicial officer

or, if he is not available, any other judge or judicial officer of the court
in question, may at any time after the conclusion of the proceedings
make any such order, and for that purpose hear such additional
evidence, whether by affidavit or orally, as he may deem fit.

Any order made may be suspended pending any appeal or review.

S35.Forfeiture of article to State

A court, which convicts an accused of any offence, may, without
notice to any person, declare—
❖❖ Any weapon, instrument or other article by means whereof
the offence in question was committed or which was used in
the commission of such offence; or
❖❖ If the conviction is in respect of an offence referred to in Part
I of Schedule 1, any vehicle, container or other article which
was used for the purpose of or in connection with the
commission of the offence in question or for the conveyance
or removal of the stolen property, and which was seized
under the provisions of this Act, forfeited to the State:
Provided that such forfeiture shall not affect any right
referred to in subparagraph (i) or (ii) of subsection (4) (a) if it
is proved that person who claims such right did not know
that such weapon, instrument, vehicle, container or other
article was being used or would be used for the purpose of or
in connection with the commission of the offence in question
or, as the case may be, for the conveyance or removal of the
stolen property in question, or that he could not prevent
such use, and that he may lawfully possess such weapon,
instrument, vehicle, container or other article, as the case
may be.
❖❖ A court which convicts an accused or which finds an accused
not guilty of any offence, shall declare forfeited to the State
any article seized under the provisions of this Act, which is
forged, or counterfeit or which cannot lawfully be possessed
by any person.
❖❖ Any weapon, instrument, vehicle, container or other article
declared forfeited under the provisions of subsection (1),
shall be kept for a period of thirty days with effect from the
date of declaration of forfeiture or, if an application is within
that period received from any person for the determination of
any right referred to in subparagraph (i) or (ii) of subsection
(4) (a), until a final decision in respect of any such
application has been given.
❖❖ The court in question or, if the judge or judicial officer
concerned is not available, any judge or judicial officer of the
court in question, may at any time within a period of three
years with effect from the date of declaration of forfeiture,
upon the application of any person, other than the accused,

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who claims that any right referred to in subparagraph (i) or

(ii) of this paragraph is vested in him, inquire into and
determine any such right, and if the court finds that the
weapon, instrument, vehicle, container or other article in
question
o Is the property of any such person, the court shall set
aside the declaration of forfeiture and direct that the
weapon, instrument, vehicle, container or other article,
as the case may be, be returned to such person, or, if
the State has disposed of the weapon, instrument,
vehicle, container or other article in question, direct
that such person be compensated by the State to the
extent to which the State has been enriched by such
disposal;
o Was sold to the accused in pursuance of a contract
under which he becomes the owner of such weapon,
instrument, vehicle, container or other article, as the
case may be, upon the payment of a stipulated price,
whether by installments or otherwise, and under
which the seller becomes entitled to the return of such
weapon, instrument, vehicle, container or other article
upon default of payment of the stipulated price or any
part thereof—
▪▪ The court shall direct that the weapon,
instrument, vehicle, container or other article in
question be sold by public auction and that the
said seller be paid out of the proceeds of the sale
an amount equal to the value of his rights under
the contract to the weapon, instrument, vehicle,
container or other article, but not exceeding the
proceeds of the sale; or
▪▪ If the State has disposed of the weapon,
instrument, vehicle, container or other article in
question, the court shall direct that the said
seller be likewise compensated.

If a determination by the court under paragraph (a) is adverse to the

applicant, he may appeal there from as if it were a conviction by the
court making the determination, and such appeal may be heard either
separately or jointly with an appeal against the conviction as a result
whereof the declaration of forfeiture was made, or against a sentence
imposed as a result of such conviction.

When determining any rights under this subsection, the record of the
criminal proceedings in which the declaration of forfeiture was made,
shall form part of the relevant proceedings, and the court making the
determination may hear such additional evidence, whether by affidavit
or orally, as it may deem fit.

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BAIL

S58 CPA: the A will be released after bail is paid or he has given a
guarantee that it will be paid and he must appear on the date and
place appointed for the trial

S35 of the Constitution: A has the right to be released from

detention if it’s in the interests of justice and subject to reasonable
conditions

BASICS OF BAIL:
o Bail is non penal = not meant as a punishment
o To determine bail it’s a balance between the interests of society
and the liberty of the A
o Bail can be refused on grounds stated in S60
o Court must determine if the A will stand trial if released or if he
will interfere with the states case
o Courts must interpret the meaning of bail to promote the rights
in the constitution (S39 of the Constitution)

INQUISITORIAL ROLE OF THE COURT IN A BAIL APPLICATION:

In SA the adversarial system is used, but a bail application includes
some inquisitorial features.
In a bail application the court plays a more active role

The court can of its own accord determine if the A wants bail.
The court can inquire in an informal way the information needed
regarding matters that ARE NOT in dispute.
If matters are in dispute the court can require the A/ PP to adduce
evidence.

Where the PP doesn’t oppose the bail under S60: the court can ask for
reasons on why they don’t oppose

FREE SYSTEM OF EVIDNECE APPLIES:

The strict evidential rules applicable in criminal proceedings will be
relaxed in a bail application.
Hearsay evidence (evidence, the probative value of which depends on
the credibility of a non witness – generally inadmissible) is admissible.

Bail applications are generally urgent so statements i.e. oral

statements from the A/PP from the bar (ex parte) can be admitted
Affidavits can also be admitted as evidence, whereas generally in a
criminal trial oral evidence is required

S12 of the Constitution: provides that everyone has the right to

freedom and security of person, which includes the right not to be
deprived arbitrarily or without just cause.

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❖❖ It’s not the purpose of bail to punish the A, its non-penal in

character.
❖❖ The fact that bail is non-penal in character does not mean that
an A’s prior unlawful conduct pending trial must be ignored
(Rudolph)
❖❖ Delays caused by the prosecution (unless mala fide) is not
reason that bail should be granted (Ali)

CJA – Release of child – S25

MUST consider a child’s bail application if:

• The interest of justice permit the release of the child on bail;
and
• Separate inquire must be held into the ability of the child and /
parent / guardian to pay amount considered as bail; and
• If not able to pay – set conditions that doesn’t include $ for the
release of the child or;
• Can pay – set conditions for release and $ that is appropriate

POLICE BAIL:
S59 of the CPA: bail can in certain limited circumstances be granted
by the police = POLICE BAIL.
This is done to ensure pre-trial release on bail can in respect of trivial
offences be secured as soon as possible – even before 1st appearance
at a lower court.
If police bail can’t be granted to it can and it’s been refused, the A has
every right to apply to a lower court for bail at his 1st compulsory
appearance.

❖❖ May be released on bail by any police official of or above the

rank of non-commissioned officer, if the A deposits at the police
station a sum of money determined by such police official.
❖❖ The police official who has the power to determine the police bail
is required to consult with the police official charged with the
investigation – investigating officer.
❖❖ The police official, must at the time of releasing the A on bail,
complete and hand to the A a receipt for the sum of money
deposited as bail – the date, place and time of the trial must
appear.

Limitations:
Only cash payments may be received for police bail.
Release can only take place before the A 1st appearance in a lower
court.
Discretionary special conditions can’t be added by the police when
releasing the A on police bail, BUT a court can add special provisions.

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An action for damages will lie, should the police bail be refused on
malicious grounds or where the police official simply refused to
exercise his discretion (Shaw v Collins).

PROSECUTORS BAIL:
S59A
The DPP may in consultation with the investigating officer, authorize
the release of the A on bail = prosecutorial bail.

The effect of prosecutorial bail is that the person who is in custody

shall be released from custody:
a) On payment of a sum of money determined for his bail at his
place of detention.
b) Subject to reasonable conditions imposed by the DPP or
prosecutor concerned.
c) The payment of such sum of money or the giving of a guarantee
and the imposition of the condition.

CJA & S59A – Prosecutor may before child appearance at preliminary

inquiry authorize the release of child – BUT – only re schedule 1 / 2
offences

ALWAYS = give preference to release of child

COURT BAIL:
S60 (1) of the CPA: an A who is in custody in respect of an offence
shall be entitled to be released on bail at any stage preceding his
conviction in respect of such an offence, unless the court finds that its
in the interests of justice that he be detained in custody.

When a person is arrested he must be informed as soon as possible of

his right to institute bail proceedings and if he isn’t granted bail under
S59, he can ask to be brought before a lower court to apply.
BUT: the court can postpone any bail proceedings (not for more than
7 days at a time) if:
a) The court believes that it has insufficient information or
evidence at its disposal to reach a decision on bail.
b) The court believes that the state should be given a reasonable
opportunity to: procure material evidence that may be lost if
bail is granted.
c) The court believes it’s in the interests of justice to do so.

Appeal by the A to the High Court against the Lower Courts

decision concerning bail
An A who considers himself aggrieved by the refusal of a lower court
to admit him bail or by the imposition by the court of a condition of
bail, including the condition amounting to the amount of bail money –
may appeal against such refusal or the imposition of the condition to
a High Court having jurisdiction.

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A must serve a copy of the appeal on the DPP and Magistrate and the
notice must set out the specific grounds for appeal.
The Magistrate Court must then give reasons for its decision to the
High Court.
If the High court refuses to change the decision, further appeal is
possible, BUT only with the leave of the High Court that heard the
appeal.

A brief reason by the court for dismissal of a bail application is NOT

sufficient ground for appeal and for the court of appeal to infer that
not enough weight was given to the considerations set out – Ali – scant
but clear reasons were given

Appeal by the DPP against a decision to release the A on bail

The DPP can appeal to the High court against the decision of the lower
court to release the A on bail.
The DPP can also appeal to the SCA against the decision of a High
court to release the A on bail.
The court hearing the appeal may order that the State should pay the
A’s costs (in whole or in part) which the A incurred in opposing the
appeal.
In the event of a successful appeal against a release on bail, the court,
which heard the appeal, shall issue a warrant of arrest for the A.

The risks and factors, which must be considered in determining a

bail application
The main question asked by the courts: will the interests of justice be
prejudiced if the A is granted bail?
4 subsidiary questions:
1) Will the A stand trial if he is released on bail?
2) Will he interfere with state witnesses or police investigation?
3) Will he commit further crimes?
4) Will his release be prejudicial to the maintenance of law and
order?

S60 (4) of the CPA: the refusal to grant bail will be in the interests of
justice if one or more of the following are established:
Where there is a likelihood that the A if released:
a) Would endanger the safety of the public.
b) Will attempt to evade his trial
c) Will attempt to intimidate witnesses
d) Will jeopardize the proper functioning of the criminal
justice system
e) Will disturb public peace and order

S60 (4) (a): endangering the safety of the public:

1) The degree of violence towards others implicit in the charge
2) Any threat of violence the A may have made to another

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3) Any resentment the A harbors towards another

4) Any disposition of violence, as evident from past behavior
5) Prevalence from the type of crime
6) Evidence that the A previously committed an offence while on
bail
If there is a risk of repetition of the same conduct, the interests of
society outweigh the interests of the A

S60 (4) (b): likelihood of the A evading bail:

a) Emotional, community and occupational ties the A has to the
place he is being tried
b) Assets held by the A and their location
c) Means and travel documents held by the A, which enable him to
leave SA
d) The extent to which he can afford to forfeit bail money
e) The nature and gravity of the charge against him
f) Nature and gravity of the punishment that’s likely to be imposed
g) The ease with which the bail conditions can be breached

S60 (4) (c): the influencing or intimidating of witnesses:

a) The fact that the A is familiar with the identity of the witnesses
and evidence, which they may bring against him.
b) Whether witnesses have already made statements and agreed to
testify
c) Whether the investigation has already been completed
d) The relationship of the A with the witnesses and the extent to
which they may be influenced
e) How effective bail conditions prohibiting communication are
likely to be
f) Whether the has access to evidential material which is to be
presented at the trial
g) The ease with which such evidence could be concealed or
destroyed.

S60 (4) (d): undermine or jeopardize the functioning of the criminal

justice system
a) The A, knowing it to be false, supplied false information at the
time of his arrest and during his bail proceedings
b) The A is in custody on another charge or the A is on parole
c) Previous failure on the part of the A to comply with bail
conditions or there is an indication that he won’t comply with
them

S60 (4) (e): jeopardize peace and public order:

a) Whether the nature of the offence or the circumstances under
which the offence was committed, is likely to induce a sense of
shock in the community where it was committed.
b) If the shock might lead to public disorder if the A is released.
c) If the safety of the A might be jeopardized by his release

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d) If the sense of peace and security of members of the public will

be undermined by the release of the A
e) If the release would jeopardize the publics confidence in the
criminal justice system.

The court will take into account the following factors:

1) The period for which the A has already been in custody.
2) The probable period of detention until the conclusion of
the trial if the A isn’t released on bail
3) The reason for any delay in the conclusion of the trial
4) Any financial loss, which the A may suffer.
5) Any other factor, which in the opinion of the court should
be taken into account.

AMOUNT OF BAIL:
An excessive amount, which really amounts to refusal of bail,
shouldn’t be fixed.
Bail should be fixed at an amount that should not only be paid, but
will make it advantageous to the A to stand trial rather than to flee
and forfeit the money.
There must be a careful investigation into the means and resources of
the A.

CJA – inquiry into the ability of the child / parent / guardian /

appropriate adult to pay

BAIL CONDITIONS:
The court may make the release of the A on bail subject to conditions,
which in the courts opinion are in the interests of justice = S60 (12)
discretionary special conditions.

Any court before which a charge is pending in respect of which bail

has been granted, may at any stage, whether bail is granted by that
court or any other court, add any further conditions of bail:
a) With regard to A reporting to a specific person, at a specific
place and time
b) With regard to any place the A is forbidden to go
c) With regard to prohibition of communication between A and the
witnesses for the State
d) With regard to the place at which documents can be served on
him
e) Which will ensure that the proper administration of justice isn’t
placed in jeopardy

In Jacobs the court held that appropriate conditions could be as

effective for the admin of justice as payment of $

The legal representative of the A shouldn’t pay bail for the benefit of
his client, its generally considered unethical.

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CJA – if found that child / parent / guardian etc cant pay any
amount of $ - presiding officer must set appropriate conditions that
excludes amount of $ for the release of the child

CANCELLATION OF BAIL:

1. Failure to observe bail conditions

PP can apply to lead evidence to prove that the A failed to
comply with a condition of bail, the court before which the
charge is pending must, if the A is present and denies that he
failed to comply with the conditions or that the failure to comply
wasn’t due to fault on his part, proceed to hear such evidence
as the prosecutor and the A may place before it.

The court may cancel bail and declare the bail money forfeited
to the State – no appeal lies against an order for the cancellation
of bail.

2. Failure to appear: procedure and consequences

If the A who is released on bail fails:
a) To appear at the place and on the date and time
appointed for his trial
b) To remain in attendance
The court must cancel the bail provisionally, declare the bails
money provisionally forfeited to the State and issue a warrant
for the arrest of the A.
If the A doesn’t appear within 14 days of the issue of the
warrant of arrest, or if he does appear but fails to satisfy the
court that his failure wasn’t his fault, the provisional
cancellation and forfeiture become final.
If he satisfies the court that his failure wasn’t due to fault on his
part, the provisional cancellation and forfeiture lapses.

3. Cancellation of bail where the A is about to abscond:

If the court has evidence on oath that:
a) A is about to evade justice or abscond
b) A threatens witnesses
c) He defeats the ends of justice
d) He poses a threat to public safety
e) Its in the interests of justice to do so
It may issue a warrant for his arrest. He will then be committed
to prison until the conclusion of the trial unless the court
reinstates bail.

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CJA – S27: RELEASE OTHER THAN BAIL

Placement options MUST be considered if a child is not released before
1st appearance at preliminary inquiry:
• Child & youth centre
• Protection if in police custody
• Prison

RELEASE ON WARNING:
An accused may be released by the court or the police and warned to
appear before a specific court at a specific time and date.
The accused's release doesn’t depend on the deposit of money or
certain conditions.

This procedure is followed with lesser offences where there is no

reason to believe that the accused will try to abscond or evade justice.

S63 – SA prisons are overcrowded. A number of prisoners

(unsentenced prisoners), which are people who have been granted
bail, but can’t afford to pay it.
These people aren’t meant to be in prison pending the outcome of
their trial – BUT their inability to pay the bail money keeps them in
prison.

When the application is made, it must be considered in the presence

of the accused.
If any amendment is made to the bail conditions – it has to be done in
the presence of the accused.

PREVIOUS CONVICTIONS:
Proof of previous convictions:
Previous convictions can be proved by the state in the course of a bail
application. The A or his legal representative is also obliged to inform
the court whether the A has previously been convicted of an offence.
Any charges pending against the A must also be discharged by him.
If it’s the legal representative who submits the information, the A is
obliged to declare that he confirms it.
An A who willfully fails or refuses to comply with the provision
commits an offence.

Admissibility of the record of the bail proceedings at the

subsequent trial:
the record, excluding the information relating to the previous
convictions, forms part of the record of the trial.
Thus the trial court will have access to all information given at the bail
application.

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PROVISO: if the A elects to testify during he bail proceedings, the

court must inform him that anything that he says may be used
against him at the subsequent trial.
Thus it must be clear that he was informed of his constitutional right
to silence and the privilege against self-incrimination.

Meaning of exceptional circumstances, as used in bail

proceedings:
an A could prove that there are exceptional circumstances relating to
his emotional condition that render it in the interests of justice that
release on bail be ordered notwithstanding the gravity of the case – i.e.
• Bail applicants terminal illness
• Urgent medical operation
• Cast iron alibi
• Exceptional circumstances are present when the A has adduced
acceptable evidence that the prosecutors case against him is
non-existent or subject to serious doubt
• Failure of the state to adduce evidence contradicting the A’s
denial of guilt
• Lengthy period of incarceration
• Good conduct of the A during the period of release after the
initial period of detention

The standard of proof that an A must satisfy in proving exceptional

circumstances is proof on a balance of probabilities.

The following don’t constitute exceptional circumstances:

• Postponement of the trial for 5 months
• Prior release on bail by a co-A
• Value of goods appearing to be far less that the value initially
alleged by the prosecution
• The fact that the applicants business was suffering because of
his detention

In Rudolph the judge concluded that ‘ordinary circumstances present

to an exceptional degree, may lead to a finding that release on bail is
justified’.

BAIL APPLICATIONS BY WAY OF AUDIOVISUAL LINK

• Possible if older than 18

• In limited circumstances court can hear bail app whilst
applicant physically in prison
• Not available if prosecution oppose bail / evidence requirements
• Court can direct that applicant physically appear b4 it
• Only in certain mags districts and with regard to certain prisons

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PRE TRIAL EXAMINATIONS

SUMMARY TRIAL
Summary trial: when it’s not preceded by a preparatory examination.
The DPP or any person authorized by him can designate any court,
which has jurisdiction, as the forum for the summary trial.
Once the court is designated the A will be brought before that court
and the trial begins.

When the A is in custody he is first brought before a lower court, even

though that court has no jurisdiction to try him = S75
S75: before the summary trial starts in a superior court, the DPP can
either order that a preparatory examination be held or that the A be
required to plead in a Magistrate court to the charge against him,
although the court doesn’t have jurisdiction to try the offender or to
impose an appropriate punishment.

Plea in a Magistrate Court on a charge justifiable in a Regional

court:
S122: when the A appears in a Magistrate Court and the alleged
offence may be tried by a regional court but not by a Magistrate Court,
or the prosecutor informs the court that he is of the opinion that the
offence is of such a nature that it merits punishment in excess of the
jurisdiction of the Regional court, the prosecutor may put the relevant
charge to the A, who shall be required by the Magistrate Court to
plead it.

If the A pleads not guilty – the Magistrate may question him in terms
of S115 and thereafter commit him to a summary trial to the Regional
Court concerned.

If the A pleads guilty, he is questioned in terms of S112 and the

Magistrate if he is satisfied that the A is guilty, will refer the A to
sentencing at the Regional Court.
If the Magistrate isn’t satisfied that the A is guilty, he will enter a plea
of not guilty and submit the A to a summary trial in the Regional
Court.

Plea in the Magistrate court on a charge justifiable in the High

Court:
Called a mini-preparatory examination – the purpose of this is to ease
the workload of the High Court.
It’s a sifting process whereby a preparatory examination or a superior
court trial may be eliminated in certain cases, where on account of the
possible co-operation of the A at an early stage, the charge proves to
be less serious than it was initially though.

When an A appears in a Magistrate Court and the alleged offence may

be tried by a Superior Court only, or it’s of such a serious nature that

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it merits punishment in excess of the jurisdiction of the Magistrates

Court, the prosecutor may on the instructions of the DPP, put the
charge to the A in the Magistrate Court.
The Magistrate doesn’t determine the charge on which the A must
stand trial; the proceedings just serve as an aid to the DPP in
determining the charge.

When the A pleads guilty, the Magistrate questions him to ascertain

whether he admits the allegations in the charge – if satisfied he stops
proceedings, pending the decision of the DPP.
The DPP may decide to arraign the A for sentence before a Superior
Court.
If the Magistrate isn’t satisfied that the A admits the allegations, he
must record in what respect he isn’t satisfied and enter a plea of not
guilty.
The Magistrate must advise the A of the decision of the DPP – if the
decision is that the A be arraigned for sentence:
a) In the Magistrate Court concerned, the court must dispose of
the case and the proceedings continue as though no
interruption occurred.
b) In the Regional or Superior Court, the Magistrate must adjourn
the case for sentence by such court.

When the A pleads not guilty, S122 provides that the court must act
in terms of S115: the Magistrate asks the A whether he wishes to
make a statement indicating the basis of his defence.
The court may put any questions to the A.
When S115 has been complied with, the Magistrate must stop the
proceedings and adjourn the case pending the decision of the DPP
who may:

a) Arraign the A on any charge at a summary trial before a

Superior Court or any other court having jurisdiction or
b) Institute a preparatory examination against the A

PREPARATORY EXAMINATION:
it’s a criminal proceeding, but it isn’t a trial as the final decision rests
with the DPP and not with the court.
It’s an examination, which is held before a magistrate, to determine
whether the evidence presented before him justifies a trial in a
Superior court or any other court, which has jurisdiction.

The A isn’t in trial and he isn’t required to plead at the

commencement of the proceedings, but only at the conclusion after all
the evidence has been led.
The Magistrate doesn’t make a finding of guilty or not guilty.
If a trial is instituted after, it’s a separate proceeding.

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The purpose of the examination is to enable the DPP to determine

whether the prosecution has a case and whether it’s a case that
should be prosecuted in a superior or other court.

If the DPP decides on the evidence presented, to prosecute the A in a

particular court, the A is then tried by that court.
If the Magistrate discharges the A at the end of the examination, this
doesn’t have the effect of an acquittal.
If the A is informed by the Magistrate that the DPP has decided not to
prosecute him, he may be charged with the same crime again.

When a preparatory examination is to be held:

S123 lays down that if the DPP is of the opinion that it’s necessary for
more effective administration of justice, he may decide to order the
holding of a preparatory examination before the A is tried in a
Superior court or other court with jurisdiction.

PREPARATORY EXAMINATION AND PRE-TRIAL EXAMIATION TO

BE DISTINGUISHED FROM A PRELIMINARY INQUIRY
Preliminary inquiry:
• Provided in CJA
• If child suspected of committing an offence – 1st appear at
prelim
• Purpose is to consider if matter should be diverted away from
formal criminal justice process
• Informal pre-trial procedure – inquisitorial in nature
• Held in court / any suitable place
• Can be followed by summary trial – but purpose is to consider
diversion
• If diverted no summary trial will follow
• If not diverted – matter will be referred to a child justice court
• Child justice court will try the case in line with CPA along with
necessary changes as per the CJA

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CHILD JUSTICE ACT

The Act protects the rights of children who are accused or who have
committed crimes. Children must still be treated as children.

Criminal capacity of a child – before a child can be held liable it must

be established if the child can distinguish between right and wrong
and act in accordance.
❖❖ Child under 10 cant be prosecuted
❖❖ 10 -14 are rebuttably presumed to be not accountable
❖❖ Over 14 are liable

Offences:
Schedule 1:
o Theft (value under R2500)
o Fraud, forgery or uttering (under value of R1500)
o Malicious damage to property (under value of R1500)
o Common assault
o Perjury

Schedule 2:
o Theft (over value R2500)
o Fraud, forgery, uttering (over value of R1500)
o Robbery with aggravating circumstances
o Malicious damage to property (over value R1500)
o Assault GBH

Schedule 3:
o Treason
o Sedition
o Murder
o Extortion with aggravating circumstances
o Kidnapping

PRE TRIAL PROCEEDINGS:

To secure the attendance of the child at the preliminary enquiry:

• Written notice
• Summons
• Arrest

After arrest – there must be an assessment of the child

WRITTEN NOTICE TO APPEAR:

Child suspected of committing a schedule 1 offence = written notice to
appear at the preliminary enquiry. It doesn’t contain an admission of
guilt.

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Written notice contains the date, place and time of the inquiry and is
handed to the child in the presence of a parent, guardian or
appropriate adult and must be signed or marked by the child/adult.

The police officer handing over the written notice must:

o Tell the child and adult of the charges
o Tell them of the rights of the child
o Explain the procedures
o Warn the child to attend and remain in attendance
o Warn the adult that the child must appear
o Within 24 hours of the handing over of the written notice – tell
the probation officer

SUMMONS:
S54: date, place and time of the inquiry – served on the child in the
presence of a parent, guardian or appropriate adult. The police officer
must:
o Tell the child and adult of the charges
o Tell them of the rights of the child
o Explain the procedures
o Warn the child to attend and remain in attendance
o Warn the adult that the child must appear
o Within 24 hours of the handing over of the written notice – tell
the probation officer

ARREST:
S43 CPA AND S40 APPLIES – unless the child committed a schedule 1
offence.
GR: can’t arrest the child for a schedule 1 offence unless:
• Reason to believe the child has no fixed address
• Reason to believe the child will continue to commit offences
• Reason to believe the child would be a danger to others

Once arrested:
▪▪ Inform the child/adult of the charge
▪▪ Tell them of the child’s rights
▪▪ Tell them of the procedures
▪▪ Notify the parent/ guardian/ appropriate adult of the arrest
▪▪ Within 24 hours inform the probation officer

A child that has been arrested and remains in custody must be

brought before the magistrate court, within 48 hours (S50 re
extension of the 48 hours applies.

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Child v Adult re arrest:

After arrest: 48 hour rule

Adult: S50: on arrest the person must be taken to the authorities asp
and informed of the right to apply for bail. After 48 hours the suspect
must be:
▪▪ Released
▪▪ 1st appearance before the court

Child: after arrest must be taken to the authorities asap – informed of

right to bail – brought before magistrate within 48 hours = for
assessment by probation officer, preliminary inquiry and / or
diversion option.

For both an adult and a child the 48-hour rule can be extended by
S50

1st appearance:
Adult: at the 1st appearance: must be told of the charge against him
and the right to apply for bail or given a reason for further detention.

Child:
▪▪ Before the 1st appearance – the officer can release the child
accused of a schedule 1 offence to an adults custody
▪▪ PP can authorize the release of a child on bail (S25) for a
schedule 1 or 2 offence
▪▪ At the 1st appearance at the preliminary inquiry – the presiding
officer can release the child on bail in terms of S25

Postponement:
For both an adult and a child – the postponement can’t be more than
7 days

Admission of guilt:
Adult: S56 CPA: if the A commits an offence which doesn’t merit a
fine of more than a determined amount – hand the A written notice to
appear which contains an admission of guilt

Child: S22 CJA: if the child commits a schedule 1 offence = released

on written warning into the care of an adult
For schedule 2 and 3: S56 of CPA applies but there will NOT be an
admission of guilt

Release on warning:
Adult: S72 CPA: police or court can release the A on warning and
give written notice of the date, place and time of the trial – if the A
fails to attend a warrant of arrest will be issued

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Child: S24 CJA: presiding officer can release the child into the care of
an appropriate adult (schedule 3) or on his own recognizance
(schedule 1 and 2) if it’s in the interests of justice. The court looks at:
▪▪ Best interests of the child
▪▪ Childs previous convictions
▪▪ Age of the child: 10 – 14
▪▪ Interests and safety of the community
▪▪ Seriousness of the offence

If the child is released on warning - there can be an imposition of

conditions.
If the child fails to comply with the conditions or fails to appear =
▪▪ Warrant of arrest/
▪▪ Summons issued
For the child to appear before the preliminary inquiry or the CJC

BAIL
S21 CJA:
❖❖ Schedule 1: can be released by police officer before 1st
appearance (S59 CPA)
❖❖ Schedule 1 and 2: PP can authorize the release of the child on
bail
❖❖ Presiding officer at the 1st appearance at the preliminary
inquiry/ CJC can release the child on bail, subject to:
o Interests of justice permit the release
o Look at the child’s ability to pay the bail amount
o If there are a lack of funds – impose conditions besides
payment

PLACEMENT:
If the child isn’t released on bail – the least restrictive form of
detention must be applied.
Before the 1st appearance the police must consider the placement of
the child in a childcare facility. Placement in a childcare facility can be
ordered by the presiding officer.
Before 1st appearance:
❖❖ Child 10-14
❖❖ Over 14 for schedule 1/ 2
Child can be detained at a childcare facility

If the child is over 14 and committed a schedule 3 offence = detain in

a police cell.

The presiding officer can demand placement at any stage, nut must
look at:
• Age and maturity
• Offence
• Child is a danger to himself or other children at the facility
• Availability at the child care facility

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PO: ORDER IMPRIOSNMENT IF:

• Bail is refused or the child breaches conditions
• Child over 14 and is charged with a schedule 3 offence
• Detention is necessary in the interests of justice
• Protect the public/ child
• Likelihood that if convicted the child will be imprisoned

PROTECTION OF THE CHILD IN POLICE CUSTODY:

Child must be detained:
o With their gender
o In conditions that take into account the child’s vulnerability
o Permit visits from parents, guardian, adult, legal representative,
social worker etc
o Receive healthcare, food, water and bedding

Tell the probation officer:

PRE TRIAL ASSESSMET

The parole officer must make a report to determine if the child is in
the need of a care and protection order, the officer must:
• Estimate the age of a child
• Gather information on the child’s history
• Recommendations on the child’s release or detention
• Estimate the prospects of diversion

All this information is confidential and can only be used for the
purposes of the Act.
This information is inadmissible as evidence during a bail application,
plea, trial or sentence

The assessment must take place in a private place

The officer must explain the purposes of the assessment to the child
and tell the child his rights

The assessment report must contain:

• Possibility of referring the child to the Child Court
• Appropriateness of diversion
• Possibility of release and the placement in the custody of a
parent, guardian or adult
• If the child is between 10-14, if the child had capacity
• Estimated age of the child if it is uncertain

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THE PRELIMINARY ENQUIRY

The preliminary enquiry is an informal inquisitorial proceeding in
court and the purpose is to consider the probation officers report.
The court must:
• See if the matter can be diverted
• Look at the type of diversion that could apply
• See if the matter must be referred to the Child court
• Establish if the child needs placement pending the conclusion of
the trial
This enquiry must take place within 48 hours of arrest or within the
time stipulated in the summons or written notice

The child is asked if he/she acknowledges responsibility for the

offence – if so the PO will consider the assessment of the report and
other relevant information.
The child actively participates actively in the proceedings

DIVERSION
Is done in order to prevent the child from being exposed to the adverse
effects of the formal justice system.

Purposes of diversion:
▪▪ Deal with the child outside the justice system
▪▪ Promote reintegration into the community
▪▪ Prevent the child from having a criminal record
▪▪ Encourage the child to take responsibility
▪▪ Allow an affected person to express their views
▪▪ Prevent reoffending
▪▪ Promote the dignity of the child

When deciding on diversion the following play a role: the child’s

culture and religion, the nature of the offence and the interests of
society, the Childs age and development.

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Levels of diversion:
Level 1 Level 2
Schedule 1 offences: the time Schedule 2 and 3 offences: the
periods mustn’t exceed: time period mustn’t exceed:
o 12 months if the child is o 24 months of the child is
under 14 under 14
o 24 months if the child is 14 o 48 months if the child is 14
and above and above

Requires: Requires:
▪▪ Apology ▪▪ Intensive therapy
▪▪ Caution ▪▪ Supervision of a probation
▪▪ Placement officer
▪▪ Counseling
▪▪ Symbolic restitution
▪▪ Community service

PROSECUTORIAL DIVERSION S41:

The prosecutor can divert the matter before the preliminary enquiry,
for schedule one offences, and only to a level 1 diversion. The
prosecutor must be satisfied that:
▪▪ The child acknowledges responsibility for the offence
▪▪ There is a prima facie case for prosecution of the child
▪▪ The child, his parent, guardian or an appropriate adult consents

If the child is between the ages of 10 and 14 – it must be established

that they had criminal capacity and the prosecution takes into
account if the child has a record or previous diversion

DIVERSION AT THE PREMILINARY ENQUIRY S52:

▪▪ The child must acknowledge responsibility for the offence and
not be unduly influenced to do so
▪▪ There must be a prima facie case against the child
▪▪ The child, parent, guardian or appropriate adult must consent

Look at the recommendation of the prosecutor (schedule 1 and 2) and

the DPP (schedule 3): on diversion
❖❖ Look at the views of the victims
❖❖ Consult with the police official responsible for the investigation

DIVERSION BY THE CHILD JUSTICE COURT:

A matter can be diverted at any time before the conclusion of the
case.
The proceedings are postponed pending the child’s compliance with
the diversion order – the court must warn the child that any failure to
comply with the order may result in any acknowledgement of the
responsibility being recorded as an admission should the trial
continue.

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After the probation officer tells the court that the child has complied
with diversion order and the court is satisfied – the court can then
make an order to stop the proceedings.

TRIAL IN THE TRIAL JUSTICE COURT

The child must appear before a court having jurisdiction. The court
must:
• Told the child of the allegations
• Tell the child his rights
• Explain the procedure

The court must ensure that the best interests of the child are upheld
and can:
o Get additional information from any person involved
o Ensure that the child, especially during cross examination is
treated fairly, cross examinations isn’t unduly harsh and the
questioning is appropriate regarding age and understanding of
the child

POSTPONEMENT:
The court must conclude the trial as quickly as possible and limit
postponement:
o If the child is in detention in prison – cant postpone for longer
than 14 days at a time
o If the child is detained at the child care centre – cant postpone
for longer than 30 days at a time
o If the child has been released – cant postpone for longer than 60
days at a time

The court can before conclusion of the prosecutions case make an

order for diversion:
The court must warn the child that failure to comply with the
diversion order could result in acknowledgement of responsibility,
being recorded as an admission if the trial proceeds.
The court can stop proceedings if the child complies with the diversion
order

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Bibliography:

• Criminal Procedure Act 51 of 1977

• Child Justice Act 75 of 2008
• Joubert, JJ (ed). 2014. Criminal procedure handbook. 11th
edition. Claremont: Juta & Co
• Criminal Procedure Module 1: Prof JP Swanepoel, Adv T
Mokoena, Mr V Basdeo, Ms M Karels

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