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CPR3701 TL 103 3 2023 B
- Exams
Bachelors of Law (University of South Africa)
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CPR3701/103/3/2023
Tutorial Letter 103/3/2021
Criminal Procedure
CPR3701
Semester 1
Department of Criminal and Procedural Law
IMPORTANT INFORMATION
This tutorial letter contains important information about this module
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CONTENTS
Page
1
2
3
4
5
5.1
5.2
5.3
6
7
8
8.1
2
INTRODUCTION AND PURPOSE ............................................................................................................3
INFORMATION CONTAINED IN THE PRESCRIBED STUDY GUIDE ...............................................3
USING THE STUDY GUIDE ...................................................................... Error! Bookmark not defined.
DO I HAVE TO MEMORISE ALL THE CASE LAW IN THE HANDBOOK? ......................................4
HOW WE EXPECT YOU TO ANSWER EXAMINATION AND ASSIGNMENT QUESTIONS IN
THIS MODULE..............................................................................................................................................4
Open-book Examination ...........................................................................................................................4
Important advice for answering problem-type questions…........................................................... 5
Examination Format.................................................................................................................................. 5
A NOTE ON THE YEAR MARK .................................................................................................................6
ASSIGNMENT 03 .........................................................................................................................................6
EXAMINATION .......................................................................................................................................... 13
Examination study units ........................................................................................................................ 13
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Dear Student,
1
INTRODUCTION AND PURPOSE
The purpose of this tutorial letter is to provide additional information in respect of
aspects of the study material which are not included in the prescribed study guide, and
to provide further information regarding preparation for the examination. As we said in
Tutorial Letter 101, the prescribed textbook for CPR3701 is Joubert JJ (ed) Criminal
Procedure Handbook 13th edition (2020) Juta Cape Town and we strongly advise that
every student registered for this module, must obtain a copy.
The only recommended material in this module are:


2
Swanepoel J P (ed) The Criminal Procedure Workbook 2 nd edition (2016) Juta
Cape Town
The Criminal Procedure Act 51 of 1977
INFORMATION CONTAINED IN THE PRESCRIBED STUDY GUIDE
We suggest you approach your learning for eventual examination in this module in the
following manner:
i.
Prepare each chapter individually, starting with Chapter 1 of the handbook and
the introductory section of the study Guide. This seems like an obvious starting
point, but experience has taught us that some students begin with what they
consider the most intricate or lengthy chapter of the prescribed handbook. This
is not ideal because, as previously indicated, criminal procedure is a scaffold
subject in which one theme builds onto the next.
ii.
Start by reading the chapter in the handbook and its corresponding section in
the study guide to obtain a general overview of the content. While you are
reading, use a variety of highlighters or any other method you are comfortable
with to identify sections of the Acts and case law. Also, indicate parts of the
work that are not covered by case law or legislation (for example, recusal of
judicial officers). Remember that the child justice process is discussed in the
study guide and must not be ignored.
iii.
If you find the section that you are reading in the study guide confusing, go back
to the handbook for an explanation of the section. While you are busy with the
study guide, insert flyers or tabs into the guide in a manner in which is
understandable to you.
iv.
Where the handbook refers to case law or principles that are not contained in
the legislation or the study guide, make yourself a summary. Otherwise, if you
are comfortable studying directly from the handbook, you may do so.
v.
If you have chosen to purchase the recommended workbook, you can now refer
to the questions in that book, as well as the activities in the study guide.
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vi.
4
Preparing in the manner described above means that you are creating a
summary of each chapter, referring to the sections of the legislation, case law
and principles not contained in legislation.
DO I HAVE TO MEMORISE ALL THE CASE LAW IN THE HANDBOOK?
No! at any rate, the final examination is open-book, so you will, naturally, be able to
source all the cases from the handbook, unless we provide a case study outside of the
cases in the handbook. However, you still need to study the content in the study
material to ensure that you have a substantive grasp of the content at the earliest
possible opportunity. Doing so at the last moment before the examination may prove
disatrous!
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HOW WE EXPECT YOU TO ANSWER EXAMINATION QUESTION
5.1
Open-book Examination
i.
As communicated earlier, the examination is a take-home examination in terms
of which you will be allowed a few hours (which will be set out in the question
paper) to complete the questions in the examination paper;
ii.
The format of the examination is essentially open-book, which means that you
will be allowed to source answers to the questions posed from the study
material;
iii.
When answering the take-home exam questions, remember that an open-book
exam is a test at a higher level than the usual type of exam, where memory is
tested as much as insight. An open-book examination does not necessarily
require you to memorise information. Instead, you are expected to demonstrate
that you can apply the information that you gathered through the semester, than
to merely repeat such information. In brief, an open-book exam examination
tests the contextual knowledge, understanding and application of information,
and not memory skills. For this reason, you do not earn marks by merely
detailing a list of all the information that you think might be relevant to a
particular question. The latter does not provide an adequate indication of your
knowledge of the contextual application of common-law, statutory or other
provisions to practical scenarios, but merely demonstrates how well you can
recount and regurgitate information. To this extent, you are expected to identify
precisely what information applies, and then explain why you think so.
Please note all the information required in answering the examination is to be
obtained from the prescribed textbook (the Handbook), namely, Joubert JJ (ed)
Criminal Procedure Handbook 13th edition (2020) Juta Cape Town. Although
you may as well source information from the study guide, we advise that
you rather consult the Handbook, as it contains more comprehensive
information.
iv.
5.2
Important advice for answering problem-type questions:
The purpose of asking problem-type questions in this module is to test your
understanding of how different process of criminal procedure apply to everyday facts.
This requires knowledge and understanding of the content of legislation, the
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Constitution and case law, and how the above can be employed to solve legal
problems as they relate to criminal procedure.
The Questions posed in the final examination are framed in the form of real-situation
scenarios, which you will surely encounter in your daily life as a practitioner of one or
the other sort. You are, therefore, expected to extrapolate your answer by providing a
solution to the problem presented in the set of facts. To this extent, you must follow the
following guidelines to be successful with your answer:
The first step entails the identification of the legal issue or problem posed in the
Question. For the purposes of Criminal Procedure (CPR3701), the Questions related to
the real-situation scenario are often accompanied by hints, which not only direct you to
the relevant page number of the handbook, but also offer instruction (where applicable)
on which aspects of the handbook to leave out, on pain of irrelevancy.
The second step in answering a problem-type question is to discuss and apply the
legal principles that are relevant to providing the answer to the problem. Most of the
legal principles discussed in this module are based court decisions (case law),
legislation and the Constitution. The handbook, for the most part, sets out to interpret
these aspects of the law for ease of understanding and reference. Because of the
open-book nature of the examination, case references (in particular), are already easily
available for you to read. We do not require you to cite cases unless it is necessary to
do so, or specifically requested; or where a case is an integral part of the question
asked, to the extent that citation hereof is a necessary ingredient of the answer.
Nonetheless, knowing how to apply the legal principles to the real-situation scenario is
the primary goal of our exercise.
The final step in answering a problem-type question is to provide a conclusion to the
problem. Please ensure that you have addressed the question(s) that has (have) been
asked. If, for example, the question requires you to explain a particular course of action
which was required to be taken by X, your conclusion should state either “X‟s action
comply with the prescripts of the Criminal Procedure Act, 51 of 1977 regarding the
action taken …”. Please note also that in order for your conclusion to have any basis it
must be a deduction of your reasoning, as supported by the law.
NB: due to the nature of the examination (open-book) the mere regurgitation of
information from the handbook without necessarily addressing the issues raised
in the problem-type scenario will result you not receiving any marks for your
effort.
5.3
Examination Format
i.
The question paper is divided into four (4) sections, namely A, B, C AND D;
ii.
You are required to answer the questions in respect of all the sections;
iii.
The sections are sub-divided as follows:
(a) Section 1 constitutes questions with single (1) or double (2) marks which must be answered
on a scenario or scenarios which are provided as a basis or as background to the question
posed. The total allocated marks for section A is ten (10). In answering these questions, you
MUST ALWAYS be guided, not only by the amount of marks allocated thereto, but also by the
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instruction attached to the question as well. For example, if a question requires to only “Name”
a particular process or subject, the student is, essentially required to write one or two words, at
most, for example, “Extradition” or ”Regional Court”, respectively. The inclination to go at length
in answering such a question can only add to your disadvantage, as you will be eating into the
allocated time, which you could be using more fruitfully to attend to questions which necessarily
require more incisive discussion and elaboration;
(b) Sections 2, 3 and 4 constitute long questions which are also based on practical scenarios.
The questions posed herein require the application of knowledge, reasoning, elaboration and
substantiation of the content from yourself, and therefore, carry more marks (ranging between 3
and 15, although the occasional 2 marker may find its way in). In this instance as well, you
must be guided by the amount of marks allocated to each question. In the case of questions
which we deem as not necessarily straightforward, we provide “hints” on how to approach the
answer, which include, in most instances, pages of the Handbook from which the relevant
information can be sourced. You are given a friendly warning not to take this approach as an
invitation to simply copy and paste information from the study material, and to present this as
an answer. You are required to analyse information, and to provide the most plausible answer.
Whilst some of the information sourced from the study material may, in given cases, seem “too
obvious” to write in any other manner, you are, nonetheless, still required to impose your “own
voice” to the material, by para-phrasing, wherever possible, and not to merely regurgitate
content from the Handbook. This approach represents the clearest demonstration of your
mastery and grasp of, and communion with the subject matter at hand.
iv.
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The questions to the examination are primarily based on the format of Assignment
03 (paragraph 7, below)
A NOTE ON THE YEAR MARK
The key to this module is to achieve high marks throughout the year and in the exam.
To allow you to do this, we have raised the contribution of the year mark to 40% of the
overall final mark and lowered the contribution of the mark you achieve in the exam to
60% of the overall final mark. Keep in mind that you must still achieve 40% in the exam
for the year mark to be considered, but this arrangement allows you to use your year
mark to contribute more towards your overall mark than in previous years, provided you
achieve 40% in the examination.
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ASSIGNMENT 03
NB: Please note the following in respect of Assignment 03:
(1)
(2)
1.
A and B are involved in bruising physical brawl. B subsequently succumbs to the
injuries sustained during the fight and dies in hospital. The DPP is not convinced that
the prosecution has a „winnable‟ case, and decides to withdraw the case. B‟s son, C is
not happy with the prosecutorial decision, and approaches you, for advise.
(a)
6
The questions posed in this Assignment represent the format of questions
which you will be expected to answer in the examination;
The Assignment need not be submitted for marking, will not be marked,
and no individual or general answers will be provided to students.
Advise C of the course of action which he may undertake, and his eligibility or
locus standi to do so.
(3)
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Hint: your answer should contain
i. the applicable course of action to be followed after the prosecutor‟s decision,
and
ii. the most appropriate option from those set out on p. 93 par. 5.3.2.
(b)
The company for which for which B worked, BD Constructions, also experience
a “profound sense of loss” occasioned by B‟s death, and want to pursue criminal
action against A. Advise BD Constructions accordingly.
(4)
Hint: your answer should contain the applicable course of action to be followed
after the prosecutor‟s decision, followed by the applicable principle in this regard,
in respect of juristic persons as set out on p. 93 par. 5.3.2.
(c)
P is fierce business competitor of A‟s who feels that the only reason why A was
not prosecuted for the murder of B is “because of his (A‟s) father‟s close
proximity to power” (A frequently posts images on social media platforms,
flanked by well-known political figures). P insists that the private prosecution is
“intended to serve the public interest”. E, A‟s father is a well-known
businessman, with known connections in the governing CBC party. A, is
however, of the view that P is just out to “settle business scores”, and is, in fact,
“abusing court process” A approaches you for legal advice. Briefly advise A on
any actions that he may undertake this regard.
(10)
Hints: your answer must be limited to the following aspects, namely,
i.
The locus standi of P to conduct a private prosecution in terms of section
7(1)(a) of the CPA and the burden to prove such standing
ii.
Whether, in light of South African jurisprudence, A has any recourse in our
courts
iii.
Whether, in conclusion, A should succeed with his legal action
iv.
3.
Your answer should pick out the most substantive aspects of this
discussion from p. 93 - 94 par. 5.3.2
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
female of African descent, whilst Bobby is a white male. The laws of Caucasia prohibit
intimate relationships between people from different races. Caucasia is a very
conservative country in which a crime of this nature is punishable by death. Bobby, who
is a South African diplomat, gets wind of his imminent arrest, and manages to escape
to South Africa just in time. The Director of Public Prosecutions, Dee Pee Pee, in the
South African province of Oranje, receives a request from the Caucasia government to
“prosecute Bobby Philanderer to the fullest extent of the law”.
(a) Discuss the applicable jurisdictional law and the process of bringing Bobby to book
in a South African court.
(7)
Hints: your answer must be limited to:
i.
The legislation applicable in adjudicating the jurisdictional issues entailed in the
facts;
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ii.
Whether, in conclusion, Bobby Philanderer may be charged in a South African
court.
(b) Discuss whether in terms of South African law, Bobby Philanderer can be extradited
to Caucasia.
(8)
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));
ii.
Your answer must not only regurgitate the principles set out on p. 175, but must
also discuss the feasibility of these aspects in conjunction with applicable South
African law
4.
Three assailants, A, B and C are engaged in an armed 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 running out of the jewellery store towards an opposite exit of the Mall. F
issues three instructions to C to stop, but C continues running away. F, thereupon
shoot his firearm at C, fatally hitting him on his back, and killing him. Meanwhile, A and
B make away with an undisclosed amount in fine jewellery and cash.
(a)
Briefly discuss whether F‟s actions comply with the requirements for the use of
force as set out on p. 171 - 172 par. 5.8.2. 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. (10)
Hint: the first line or assertion of the requirement will provide sufficient guidance
on how to proceed. There is no need to elaborate on the additional information
set out in the Handbook, except to use this as a guideline to informing your
answer.
(b)
During the investigation, the investigating officer manages to arrest A and B,
after which they appear in court. In the meantime, the South African authorities
receive an extradition application from the Republic of Botswana in respect of A,
where he is linked to an armed robbery which resulted in the fatal shooting of a
bank teller. The crime for which A is sought in Botswana is punishable, upon
conviction, by the death.
Briefly discuss, in light extradition principles set out on p. 175 par. 7 of the
Handbook and relevant case law, the Extradition prospects of C.
(8)
Hint: your answer should ONLY contain the most appropriate extradition
principles applicable to the set of facts, and the relevant case law.
(d)
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During the course of the investigations, the investigating officer, D, gets wind of
the fact that the jewellery and money stolen during the heist is hidden in the
house of G, A‟s girlfriend. Because the information is recently obtained, D is
afraid that the items in question might be disposed of. G‟s house resembles an
impregnable fort, and knocking on the door presents D with an unenviable task.
D approaches P, the prosecutor, who advises that the „law does allow the use of
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force to gain entry into a building‟. D plans to „sneek‟ into G‟s house unseen, and
to then stat conducting the search.
Hint: your answer MUST contain information regarding the
i.
ii.
iii.
(e)
applicable general legal position;
question of whether the items in question fall within the ambit of those that
may be dealt with in law as proposed by P; and
whether D may legally conduct such asearch
L, G‟s attorney is of the view that the search conducted by D is, in fact „formally‟
unlawful, and wants to bring a court action. Discuss the applicable Constitutional
provision to be applied to an unlawful search.
(6)
Hint: your answer should contain the core workings of the provision in question
without necessarily elaborating on most of the information set out on p. 203 par.
9.1
(f)
L wishes to apply for bail for A, and approaches P, the prosecutor, to apply for
bail from her (P) after A‟s first appearance in court. Briefly discuss the
circumstances (in terms of offences) under which P is eligible to grant bail, and
whether on the facts presented, P can release A on bail.
(6)
(g)
During the formal bail application of A, B and C, it transpires that
i.
ii.
some of the potential witnesses to the subsequent trial are known to all
three the accused;
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 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
Handbook)
(h)
A is charged with the theft of a dress worth R499 from Woolbright Stores. The
investigating officer, D, is vehemently opposed to bail because A is a „known
thief who always manages to escape the dragnet of the law‟. During the bail
application P, the prosecutor, argues against the release of A (who is
undefended) on bail, and further submits to the court that the burden of proof
resides with A to proof that the interests of justice.
(8)
Critically discuss the concepts of the burden and the standard of proof in respect
of the facts set out above.
5.
B appears in the regional court charged with the crime of murder. The case is
adjudicated upon by magistrate M, with A, sitting with M as assessor. B was previously
acquitted of the murder of A‟s son, a factor unknown to M, the magistrate. P, the
prosecutor, is, however, aware of these circumstances, having established the facts
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from the investigating officer, H. A nonetheless, decides to remain quiet about her
knowledge of B‟s previous encounter with the law.
Discuss the factors which may be relied upon in respect of an application for A‟s recusal from
the proceedings.
(7)
Hints:
i.
ii.
Your answer must be sourced from chapter 13 of the prescribed Handbook;
Every factor provided must be accompanied by a reasoned explanation for its
application. In other words, you must explain, in line with the facts set out above,
why a particular factor is applicable. You will not be awarded any marks for
merely re-stating the content of the textbook as it.
6. A sits as assessor in a case of murder in the regional court with the presiding officer, H.
A, who was a magistrate in a previous life, is determined to “play a decisive and
meaningful role in the proceedings … and not to be reduced to an arm-chair manikin”.
During deliberations on judgment with H, A insists on influencing the direction of the
verdict in respect of certain aspects of the trial.
Discuss, in light of the rights and duties of assessors as set out in South African law whether
A has any influence when it comes to judgment, in respect of
(a) The admissibility into the record, of hearsay evidence by one of the state witness; (4)
and
(b) The determination of whether the accused‟s evidence was “demonstrably false”.
(4)
Hints: your answer:
i.
Must be sourced from p. 283 par. 2.3 of the Handbook;
ii.
Need not regurgitate the content on par. 2.3. You must, instead, discuss the
workability of A‟s assumptions in conjunction with the law as set out on par. 2.3
iii.
Must contain a general conclusion the workability of A‟s aspects of the law on as
set out on par. 2.3
7.
A is charged with murder in the regional court. M, the magistrate, decides to conduct
the trial by appointing a jury. Briefly discuss, the admissibility of M‟s conduct, with
reference to s 93 of the Magistrates‟ Courts Act, 32 of 1944.
(4)
Hints: your answer should contain
i.
ii.
iii.
8.
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a simple (if possible, one-line) exposition of the South African position on jury
trials (see p. 287 of the Handbook);
an exposition of the workability of M‟s actions in line with current South African
practice (see p. 280 par. 2.1);
whether, in conclusion, M‟s conduct is, indeed, workable.
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.
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(a)
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
B‟s behavior as a „refusal to plead‟ and records a plea of „not guilty‟.
Briefly discuss whether M‟s action can be deemed as reasonable.
(4)
Hint: your answer must first expatiate on the general applicable rule, before
elaborating on, and analyzing the merits.
(b)
A does not answer directly to the request to plead, but insists that he hit B with
the iron rod because B „hit me first with a brick‟. M interprets B‟s behavior as a
„refusal to plead‟, and records a plea of „guilty‟.
Briefly discuss whether C‟s action can be deemed as reasonable.
(4)
Hint: your answer must first expatiate on the general applicable rule, before
elaborating on, and analyzing the merits.
8.
A works for the Department of Social Welfare as an accounting officer, where she
involves herself, with five other colleagues in the fraudulent siphoning of R3-million into
the secret banks accounts of all six accomplices. However, preliminary investigations
reveal A as the „mastermind‟ behind the entire escapade, who was seemingly acting
alone. In fact, one local newspaper affectionately christens her, „Lone Wolf McPhee‟. A
is charged 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.
(a)
A agrees to plead „guilty‟ in respect of 25 of the charges, but insists that the plea
bargain agreement must include a formal agreement on sentence. Briefly
discuss the workability of such arrangement.
(5)
Hint: your answer should only discuss the formality or otherwise of traditional
plea bargaining as it relates to the outcome, without delving into the mechanics
of „how‟ such agreement is arrived at.
(b)
In compliance with traditional plea bargaining rules, D insists to P that they (D
and P) must approach and address the court informally from the bar regarding
the plea agreement which was arrived at. Briefly discuss the workability and
legality of this arrangement.
(6)
Hint: as per the information in the Handbook, the question must be answered
with specific reference to the exceptions set out in respect of traditional plea
bargaining.
(c)
9.
Discuss the implications if A was not legally represented and still wanted to enter
into a statutory-regulated plea bargain arrangement with P, without the
agreement being reduced to writing.
(2)
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
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deceased‟s brother D, is of the view that he (A), should be able to compel W‟s
appearance in the subsequent trial.
In terms of South African criminal procedure:
(a) Name the official document which may be used to compel W to attend the court
proceedings.
(1)
(b) Briefly discuss whether A is competent (in law) to serve the document referred to in (a)
above, and if not, which party(ies) is/ are competent to do so.
(3)
(c) Briefly discuss the consequences if W refuses to heed the service of the document
referred to in (a).
(d) Briefly discuss the course of action if W heeds the document mentioned in (a) above, but
refuses to testify in court
(4)
Hints:
i.
ii.
The answers to this question must be sought from chapter 15, par. 2 of the
Handbook;
Your answer must be strictly confined to the aspects raised in the question.
10.
Briefly explain the essence of Adjournment.
(1)
11.
The discretion to postpone or postpone a case is lies with the prosecutor.
(1)
True or False?
12.
Three assailants, A, B and C are engaged in an armed robbery at one of the jewellery
stores in the newly-built African Mall. A and B are apprehended almost immediately
after the commission of the offence. C is only arrested three months after the
commission of the offence at a stage when A and B‟s case has already been
postponed a few times for further investigations.
(a)
Briefly explain whether C sufficiently complies with the requirements of s 155(1)
of the CPA, and to the substantive criminal law principles, to be joined as coaccused to A and B in the criminal proceedings.
(6)
Hint; your answer should,
i.
ii.
iii.
(b)
13.
12
explain the essential requirements of s 155(1) (p. 361 - 362) without
necessarily giving a verbatim explication of the provision (s 155(1);
explain of the „character‟ explained in s 155(1) as an important and
indispensable component of the answer required; and
the „involvement‟ of the character mentioned in (ii) above, should be
linked to definitional requirements of criminal law and s 155(1).
Briefly explain whether a joinder would still be possible if „the trial against A and
B had already commenced‟, in the sense that the first state witness had already
testified. Your answer should also contextualise the exceptions provided for by s
112 and 115 of the CPA.
(6)
After the first state witness has given evidence-in-chief, may the magistrate, M, crossexamine the witness. Provide a brief explanation of the process of cross-examination
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with specific reference to the party is not permitted to conduct cross-examination.
(4)
14.
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)
(b)
the party who may conduct re-examination;
(1)
the purpose and content of re-examination;
(3)
(c) whether D is, indeed, competent to conduct re-examination in the circumstances
sketched above.
(4)
15.
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. (2)
16.
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)
17.
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. A was only 17 years at the time of the commission of the current offence
(robbery). Briefly discuss the roles that A‟s age, and the previous conviction ascribed to
him should play in the sentencing process.
(6)
Hint:
Firstly, your answer must be guided by the marks awarded for the question. Secondly
the general principle and the reason for the approach advanced in the answers are
paramount to the correctness of the answer. All other information is irrelevant.
18.
A is convicted on a charge of assault in the District Court. A subsequently discovers
that M, the magistrate is married to the complainant, B, and that the position (of the
marriage) persisted even during the time of trial.
(a)
Name the ground upon which A may rely to have the case reviewed by a court of
higher instance.
(1)
(b)
A, who was undefended during the trial, feels that he was prevented, several
times from properly cross-examining B by M, who constantly cut off his
questioning, instructing him a few times not to „waste the court‟s time with stupid
questions and innuendo‟.
Briefly explain whether A should lodge a review or an appeal. Your answer
should include the merits each course of action.
(5)
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Hint: the question enjoins you to explain one of the main features of difference
between appeal and review, against the facts set out above.
19.
A, a first offender, is convicted on a charge of the theft of a bar of 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.
(4)
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.
MT MOKOENA
XK KOZA
M TEKA
J KUMWENDA
14
:mokoemt@unisa.ac.za (012) 429-2265
:kozaxk@unisa.ac.za (012) 429-2614
:tekamt@unisa.ac.za
(012) 429-2685
:ekumwej@unisa.ac.za (012) 429-6806