criminal proc exam question and answer

Unit 1 – a basic understanding of criminal procedure

Distinguish between the accusatorial and inquisitorial systems of law. To which system does South Africa essentially adhere? (6)

Accusatorial and Inquisitorial procedures

 Difference between the two procedures lies in the functions of the parties.

Accusatorial Procedure:

 e.g. Anglo-American systems and SA (although witness can be called by the judge and procedure of questioning contains inquisitorial elements)



Judge is in the role of detached umpire who should not enter the argument between the prosecution and defence for fear of becoming partial or loosing perspective.



Police primary investigative force passing evidence to prosecutor in file format who then becomes the dominus litis.

 Prosecution decides on appropriate charges, court etc.



Trial is in the form of a contest between two theoretically equal parties.

Inquisitorial Procedure:

 e.g. France



Judge is master of proceedings (dominus litis) – he actively conduct | controls the search for the truth by dominating the questions of witnesses | accused.

 After arrest: accused questioned by judge not police.



In trial judge primarily does the questioning and not the counsel for defense

Do you agree with the following statement and, if so, why? The presumption of innocence principle is the cornerstone of constitutionalism. If this principle is not upheld at all costs in criminal procedure law and the law of evidence in South Africa, then the law in these categories could be classified as a ``crime control model''.

Crime Control Model



Regards the repression of criminal conduct as the most important function of criminal procedure.

Due Process Model



Regards the adherence to rules which duly and properly acknowledge individual rights at every stage of the criminal process as the only ground on which a conviction and sentence can be secured.

Supported by the Bill of Rights.

Criticism – tends to neglect the right of victims of crime and law abiding citizens in favour of the rights of the accused as a result truth seeking suffers.



Both models do not exclude each other, and no existing system of criminal procedure consists of only one model.

Discussion and description of the presumption of innocence applied in the law of criminal procedure



Criminal procedure does not deal with the detection, investigation and prosecution of criminals, but of suspects (not yet charged) and Accused (charged).

 The presumption of innocence & legal guilt:



Due to the Presumption of innocence every person is innocent until:-



Convicted by a court of law in compliance with the rules of evidence & criminal procedure.



Conviction is an objective and impartial pronouncement proving legal guilt in accordance with the principle of legality.



Factual or moral guilt is not the same as legal guilt, conviction in any other way except legally may amount to vigilantism, mob trials and even anarchy.

 The presumption of innocence as a statement of the prosecution’s burden of proof:

 Prosecution to prove every element of the crime. If a single element is not proved beyond a reasonable doubt the accused cannot be convicted.

 the onus of proof rests on the prosecution who must prove guilt beyond a reasonable doubt.



If the State does succeed in proving a prima facie case and the accused does nothing to disturb that case, prima facie proof may harden into proof beyond reasonable doubt and the accused may be convicted because there is nothing which produces a doubt in the court’s mind about the guilt of the accused.



If the accused can make the court doubt reasonably that one of the required elements has been proved, he must be acquitted.

 Even if the State’s version is more probable than the accused’s, he will be acquitted if there is a reasonable possibility that his version may be true and it is not even necessary for the court to believe the accused.

 The presumption of innocence and the nature of the alleged crime:



Neither the prevalence nor offensiveness of the crime can disrupt the presumption of innocence.



Not convicting an innocent person far outweighs the public interest of bringing the perpetrators to justice.



In Coetzee the Constitutional Court held, inter alia that the more serious the crime and greater the public interest in securing a conviction of the guilty the more important do constitutional protections of the accused become.

The right to silence

 Accused can never be forced to testify, he has the right to silence – privilege against selfincrimination.



Constitution guarantees the right of every arrestee to remain silent & not be compelled to make a confession or admission which could be used in evidence against him. As well as the right to remain silent & not to testify during the proceedings.

 The root of this is that the subject is a full legal subject and not merely an object of enquiry.



A full legal subject is entitled to participate in his trial according to his own autonomous decisions and to be assisted. He cannot be tried if he is mentally unable to understand enough to participate meaningfully & communicate with his lawyer.

 Many of the rights of accused persons can be traced to

 The presumption of innocence



The status of the accused as a legal subject.



Coupled with the notion of legality, that the state is not absolute but limited to the rule of law.



No adverse inference should be drawn against his decision to remain silent or not to testify as

1.

he may think that the state is weak and does not merit an answer or the court cannot be trusted

2.

if an element of crime has not been covered by prima facie proof the nothingness of the accused’s silence cannot logically fill the gap of the state’s case.

 May cause the conviction where the state has proved a prima facie case and the accused has remained silent, then the state’s evidence is uncontroverted and becomes proof beyond a reasonable doubt as the silence of the defence did not ‘disturb’ the state’s case.

Constitutionalism in the light of what the ``rule of law'' and the legality principle require in a constitutional state, for example that juridical guilt is important in a constitutional state. This means that it is not important to secure a verdict of guilty at any cost and by any means whatsoever, but that it is imperative that the rules of evidence and criminal procedure law be complied with according to the entrenched rights in the Constitution.

It also means that the burden of proof generally falls on the state to prove the guilt of the accused beyond reasonable doubt; that if a legal provision shifts the burden of proof to the accused, then the restriction of the constitutional right of the accused to be deemed innocent until proven guilty must comply with the limiting provisions of section 36 of the Constitution, namely that the restriction must be reasonable and justifiable as in an open and democratic society based on the principles of human dignity, equality and freedom, taking due account of factors such as the nature of the law, the importance and purpose of the restriction, the nature and extent of the restriction, and whether there is a less restrictive way of achieving the set purpose. A practical example of such a curtailment of the presumption can be found in the inverse or reversed burden of proof in the case of applications for bail for Schedule 6 offences as contemplated in section 60 (11) of the Criminal Procedure Act, where the accused has to convince the court that unusual circumstances exist under which it is justifiable in the interests

of justice that the accused should be released although facing a serious charge. It can be said, therefore, that where bail applications relating to certain serious offences are concerned, South Africa espouses the ``crime control'' model in the interests of justice. The different criteria of proof required for each stage/phase/component may also have an impact on assessment of the type of model.

What are the rights of the arrested suspect and the accused?

Section 35 of Constitution - Arrested, detained and accused persons

(1) Everyone who is arrested for allegedly committing an offence has the right-

(a) to remain silent;

(b) to be informed promptly-

(i) of the right to remain silent; and

(ii) of the consequences of not remaining silent;

(c) not to be compelled to make any confession or admission that could be used in

evidence against that person;

(d) to be brought before a court as soon as reasonably possible, but not later than -

(i) 48 hours after the arrest; or

(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours

expire outside ordinary court hours or on a day which is not an ordinary court

day;

(e) at the first court appearance after being arrested, to be charged or to be informed of

the reason for the detention to continue, or to be released; and

(f) to be released from detention if the interests of justice permit, subject to reasonable

conditions.

(3) Every accused person has a right to a fair trial, which includes the right-

(a) to be informed of the charge with sufficient detail to answer it;

(b) to have adequate time and facilities to prepare a defence;

(c) to a public trial before an ordinary court;

(d) to have their trial begin and conclude without unreasonable delay;

(e) to be present when being tried;

(f) to choose, and be represented by, a legal practitioner, and to be informed of this right

promptly;

(g) to have a legal practitioner assigned to the accused person by the state and at state

expense, if substantial injustice would otherwise result, and to be informed of this right

promptly;

(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;

(i) to adduce and challenge evidence;

(j) not to be compelled to give self-incriminating evidence;

(k) to be tried in a language that the accused person understands or, if that is not

practicable, to have the proceedings interpreted in that language;

(l) not to be convicted for an act or omission that was not an offence under either national

or international law at the time it was committed or omitted;

(m) not to be tried for an offence in respect of an act or omission for which that person has

previously been either acquitted or convicted;

(n) to the benefit of the least severe of the prescribed punishments if the prescribed

punishment for the offence has been changed between the time that the offence was

committed and the time of sentencing; and

(o) of appeal to, or review by, a higher court.

(4) Whenever this section requires information to be given to a person, that information must be

given in a language that the person understands.

(5) 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.

What is meant by the statement that criminal procedure is a system?

Criminal procedure functions as part of a system which is referred to as the criminal justice system.

Criminal Justice consists of criminal procedure, substantive criminal law, law of evidence in criminal proceedings, law of sentencing and related disciplines and the law governing prisoners and prisons.

The common binding factor between the aforementioned branches of law is that they deal primarily with crime and its perpetrators and form a coherent whole in order to ensure that there is, in the interests of society, firm but fair enforcement of the rules of substantive law in accordance with constitutional and all other legal requirements.

Write notes on the contents and meaning of the privilege against self-incrimination (right to silence). (5)




Accused can never be forced to testify, he has the right to silence – privilege against selfincrimination.






The root of this is that the subject is a full legal subject and not merely an object of enquiry.






Many of the rights of accused persons can be traced to



The presumption of innocence







 No adverse inference should be drawn against his decision to remain silent or not to testify as

3.


4.


1.a. Name and discuss the remedies available to a suspect, arrested or accused person against any infringement or pending infringement of his or her fundamental rights.

 The rights of the suspect are maintained and state official encouraged to conform to the principle of legality by sanctions ranging from informal social sanctions to formal legal sanctions.

1.

The writ of habeas corpus (interdictum de libero homine exhibendo):

1.

Remedy to obtain judicial review of police action – protecting the subject against unlawful deprivation of his liberty.

2.

Court asked for order that the respondent produce the detainee before the court at a certain date.

3.

Order coupled with a rule nisi that the respondent must show reason why the detainee should not be released.

4.

Prima facie reasons for believing the detention is wrongful must be adduced.

5.

The application heard by single judge in civil court & preference on roll.

6.

Application may be made ex parte.

7.

The return date is set as early as possible may be same day.

2.

Civil Action for damages

1.

e.g. on the grounds of wrongful arrest.

2.

A delictual liability which may be used by suspects for compensation of abuse which they suffered.

3.

The interdict:

1.

An order of court whereby a person is prohibited from acting a certain way.

2.

to limit or prevent harm or damage.

3.

May be obtained where harm has not occurred but is threatening.

4.

May be employed during criminal proceedings to obtain relief for e.g. detainees.

4.

Mandamus:

1. The reverse of an interdict – a positive order that a functionary perform their duty. e.g. Furnish an accused with proper particulars relating to the charges.

5. The exclusionary rule:

1.

Contingent on a finding that admission would be unfair to the administration of justice.

2.

Courts have guided discretion to exclude or admit.

3.

Aims to deter unlawful police conduct in the pre-trial process by rendering illegally obtained evidence inadmissible.

4.

Remedy as a means of maintaining and vindicating the principle of legality.

6. Informal remedies:

1.

To resist unlawful arrest or escape from unlawful custody, however may be risky.

7. Constitutional mechanisms:

1. for maintenance of human rights and legality as against overbearing state action

contained in the constitution.

State and private institutions supporting constitutional democracy. (Public Protector, HRC)

In proving the guilt of an accused person in a state under the governance of the rule of law and committed to respect for fundamental human rights, juridical guilt only is of importance. Discuss the meaning of juridical guilt, indicate the connection between juridical guilt and the presumption of innocence and discuss how these two principles are applied in South African law in the pre-trial and trial phases of the criminal process.(12)

Discuss and describe the presumption of innocence applied in the law of criminal procedure



Criminal procedure does not deal with the detection, investigation and prosecution of criminals, but of suspects (not yet charged) and Accused (charged).

 The presumption of innocence & legal guilt:



Due to the Presumption of innocence every person is innocent until:-



Convicted by a court of law in compliance with the rules of evidence & criminal procedure.



Conviction is an objective and impartial pronouncement proving legal guilt in accordance with the principle of legality.



Factual or moral guilt is not the same as legal guilt, conviction in any other way except legally may amount to vigilantism, mob trials and even anarchy.

 The presumption of innocence as a statement of the prosecution’s burden of proof:



Prosecution to prove every element of the crime. If a single element is not proved beyond a reasonable doubt the accused cannot be convicted.

 the onus of proof rests on the prosecution who must prove guilt beyond a reasonable doubt.



If the State does succeed in proving a prima facie case and the accused does nothing to disturb that case, prima facie proof may harden into proof beyond reasonable doubt and the accused may be convicted because there is nothing which produces a doubt in the court’s mind about the guilt of the accused.



If the accused can make the court doubt reasonably that one of the required elements has been proved, he must be acquitted.



Even if the State’s version is more probable than the accused’s, he will be acquitted if there is a reasonable possibility that his version may be true and it is not even necessary for the court to believe the accused.

 The presumption of innocence and the nature of the alleged crime:



Neither the prevalence nor offensiveness of the crime can disrupt the presumption of innocence.



Not convicting an innocent person far outweighs the public interest of bringing the perpetrators to justice.



In Coetzee the Constitutional Court held, inter alia that the more serious the crime and greater the public interest in securing a conviction of the guilty the more important do constitutional protections of the accused become.




Accused can never be forced to testify, he has the right to silence – privilege against selfincrimination.






The root of this is that the subject is a full legal subject and not merely an object of enquiry.






Many of the rights of accused persons can be traced to

 The presumption of innocence









No adverse inference should be drawn against his decision to remain silent or not to testify as

5.


6.


 May cause the conviction where the state has proved a prima facie case and the accused has remained silent, then the state’s evidence is uncontroverted and becomes proof beyond a reasonable doubt as the silence of the defence did not ‘disturb’ the state’s case.

The constitution of the Republic of South Africa and the National Prosecuting Authority Act provide for the powers of the prosecuting authority and the framework within which such authority must operate. Discuss these powers and statutory framework (but do not include a discussion of the composition of the prosecuting authority.(12)



In Primitive societies all wrongs were private wrongs & private vengeance could lawfully be taken.

 Gradually replaced by form of an officially enforced system of criminal justice.

 The need for legality & due process developed:



Societies became progressively more civilized.



Organized government and development of states transferred private vengeance to an entity with necessary resources to enforce justice on behalf of society. → As this process progressed a clear distinction between private and public wrong was expressed as state intervention on behalf of the public interest.



As the state became responsible it could no longer tolerate self-help and private vengeance became unlawful.



State is then responsible for prosecutorial task; state can prosecute or refuse to prosecute against the victims or complainants wishes because of public interest and allowed private prosecutions to avoid private vengeance.

Public & private prosecutions



Prosecuting official vested with discretion whether to prosecute or not.



Refusal to prosecute may aggrieve individual but avoided self-help. In Private prosecution, individual may in certain circumstances in his personal capacity proceed against the alleged perpetrator.



CPA: provision for private prosecution in limited instances.



Private prosecution represent the vast majority of prosecutions

Criminal prosecutions & civil actions



Commission of crime is a violation of public interest.

 Punishment is sought on behalf of society and only in an incidental way in respect of an individual suffering damages.



Prosecution e.g. theft → does not deprive the party of any civil remedies → this is private law matter

& does not involve criminal law rules. The exception to the rule is where a criminal court orders accused to pay compensation.

 Acquittal of accused shall not bar civil action, (In criminal court prosecution must prove beyond reasonable doubt in civil court plaintiff has lesser standard of proof upon a balance of probabilities).

Civil case with compensation → state can still proceed on same fact but court can only order punishment not compensation (again).

The Constitutional Provisions & Legislative Framework:

Constitutional Provisions: S 179

1) Single NPA consisting of: a) NDPP: head → appointed by President b) DPP & P: determined by Act

2)

3)

4)

NPA has power to institute criminal proceedings o.b.o state.

National legislation must ensure DPP are: a) qualified b) responsible for jurisdictions

National legislation must ensure the prosecuting authority exercises its function w/o fear, favour /

predjudice.

5) NDPP: a) must determine with Cabinet members after consulting with DPP: prosecution policy. b) c) must issue policy directives which must be observed in the prosecution process. may intervene in prosecution process when policy directives are not complied with. d) may review a decision to prosecute | not after consulting with relevant DPP & taking representation w/i period specified by NDPP from the following: a) accused b) complainant c) other person

ND considers relevant.

6) Cabinet member responsible for administration of justice must exercise final responsibility of prosecuting authority.

7) All other matters concerning prosecuting authority must be determined by national legislation.

The National Prosecuting Authority Act:

- Gives effect to the constitutional provisions.

- Repealed the Attorneys-General Act: any reference in any law to attorney-general shall be construed as reference to a DPP | DDPP.

The Professional Independence of the Prosecuting Authority:

- Yengeni: Held Constitution guarantees the independence of the NDPP & all professional members of his staff.

- Prosecuting authority is not part of the judiciary – appointment does not compromise the separation of powers doctrine.

Unit 2 – Criminal courts of the republic

X and Y steal a car in Tshwane and travel north. At Bela Bela they stop at a filling station, assault the petrol attendant so that she runs away, and fill the car's tank with fuel. On the way to Modimolle they see a parked police car under a tree on the border between the district of Bela Bela and Modimolle, and they turn around.

They are apprehended in Bronkhorstspruit. Would they be tried in the lower courts of Tshwane, Bela Bela,

Modimolle or Bronkhorstspruit? Would the charge be theft of the car, theft of the fuel or assaulting the petrol attendant? Discuss. (8 marks)

According to the general rule, a lower court (both a district and a regional court) has jurisdiction with regard to crimes committed within its area. The following extensions of this rule apply to the facts of the case:

(1) A crime committed within four kilometres outside the boundary of the district or regional court may be tried in that specific court.

(2) Where the theft of goods is concerned, the court of the area within which X and Y had the goods or part of the goods in their possession may exercise jurisdiction- since theft is a continuing offence.

(3) Where several crimes have been committed in different areas, the DPP may order that the trial take place in a particular district or regional court.

Application to the facts: The theft of the car took place in Tshwane (but also in other districts, because theft is a ``continuing crime'') and, according to the general rule cited above, X and Y can be tried at any of the said places. They had the car in their possession in Tshwane, Bela Bela and Bronkhorstspruit and, also in accordance with the extended rule above, could therefore stand trial there. The car was driven to within four kilometres of the border between Bela Bela and Modimolle. Theft was therefore ``committed'' within four kilometres of the border and they can be tried in Modimolle as well. The theft of the fuel took place in Bela

Bela, and they can therefore be tried there. It can be assumed, however, that they had some of the fuel in their possession in Bronkhorstspruit and Modimolle, and consequently, for the reasons mentioned, they can also be tried in those places. The assault took place in Bela Bela and they must be tried for it in that place.

Finally it must be borne in mind that because different crimes were committed in different places, the NDPP may order a trial in one of the various courts of any of the relevant districts.

Discuss the jurisdiction of the Supreme Court of Appeal to determine questions in terms of section 333 of the

Criminal Procedure Act.

Supreme Court Of Appeal





Jurisdiction to hear appeal against any decision of HC and decide on it.

Guilty may not automatically appeal to SCA → Must first seek leave from the HC.

 Jurisdiction of SCA i.t.o Section 333 of CPA →

 Whenever the Minister of Justice has any doubt to correctness of decision by HC in criminal case on question of law or where decision is given on question of law is in conflict with another division of HC on the question of law→ may submit decision to SCA to determine future guidance of all courts or the constitutional court for constitutional matters.

 Previous decisions are not reversed or amended → Executive in special cases may show clemency to the convicted where it appears conviction was not justifiable.

 R v Bolon: Minister referred to SCA the question of what degree of proof is required when statute states the onus of proof is on the accused.



SCA held that such an onus was the same as that in a civil trial i.e. on a balance of probabilities.

Discuss the lower courts' jurisdiction with regard to sentencing. (5)

A regional court may impose the following sentences and no other:

(i) imprisonment not exceeding 15 years (unless its jurisdiction has specifically been increased by statute)

(ii) periodical imprisonment

(iii) declaration as an habitual criminal

(iv) committal to a treatment centre

(v) a fine not exceeding the amount determined by the Minister from time to time by notice in the Gazette - presently R300 000

(vi) correctional supervision

(vii) imprisonment from which the accused may be placed under correctional supervision

A district court may impose the following sentences and no other:

(i) imprisonment not exceeding three years (unless for a statutory offence its jurisdiction is specifically increased by the statute)

(ii) periodical imprisonment

(iii) committal to a treatment centre

(iv) a fine not exceeding the amount determined by the Minister from time to time by notice in the Gazette - presently R60 000

(v) correctional supervision

(vi) imprisonment from which the accused may be placed under correctional supervision

The boundaries of the area of jurisdiction of a district or regional court are extended by statute by four kilometres. Discuss the contents and application of this extension. (7)

Section 90 of the Magistrates’ Court Act provides that district or regional courts have jurisdiction to hear trials in respect of offences committed within the district or regional division. This principle has been extended as follows:

1. 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.

- 4km rule: May be tried in area for offence committed in another province but w/i 4km beyond boundary if offence under common law | statutory law in both provinces.

- Cannot apply rule where statutory provision is similar or not applicable.

- Baba: Held couldn’t be tried in KMBLY (erstwhile Cape Province) of resisting police contrary to provision of

Cape Act, where took place in Free State, 2 miles beyond boundary of KMBLY. The fact there was a similar Act operative was not an issue.

- 4km rule not applicable to foreign state.

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.

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.

X is brought before a district court on charges of rape and murder. X has been convicted of rape before. X is called upon before the district court magistrate to plead to the said charges. Fully discuss the procedure the said magistrate has to follow in such an instance. (6)

A district court may try all offences except murder, high treason and rape. The offences mentioned in the charges fall outside the court’s jurisdiction and cannot be tried there. Both offences may, however, be tried in the regional court and the High Court .

When the accused appears in a magistrate’s court and the alleged offences may be tried by a regional court but not by a magistrate’s court, the prosecutor may put the relevant charges to the accused, which shall be required by the magistrate to plead to them. If the accused pleads not guilty, the magistrate may question him/her in terms of section 115 and thereafter commit him/her for a summary trial to the regional court concerned. On a plea of guilty, the accused is questioned in terms of section 112, and the magistrate, if he/she is satisfied that the accused is guilty, will refer the accused for sentence to the regional court. If he/she is not satisfied that the accused is guilty, he/she will enter a plea of not guilty and submit the accused for summary trial to the regional court. The accused must accordingly be asked to plead afresh at the subsequent trial, irrespective what he/she pleaded in the magistrate’s court.

Since X had already been found guilty of rape, the director of public prosecutions (DPP) may decide to employ section 119 (the curtailed preparatory examination).

The purpose of this procedure is to ease the workload of the High Court and of the DPP This is the case where the DPP is of the opinion that the offences merit punishment in excess of the jurisdiction of the lower courts.

The prosecutor may then, on the instructions of the DPP, put the charges to the accused in the magistrate’s court. The magistrate directs the accused to plead to the charges. Where the accused pleads guilty, the magistrate will question him/her in order to ascertain whether he/she admits the allegations in the charges. If the magistrate is satisfied that the accused admits the allegations, he/she will stop the proceedings, pending the decision of the DPP. The director may decide to arraign the accused for sentence before the High Court or any other court having jurisdiction. If the magistrate is not satisfied that the accused admits the allegations in the charge sheet, he/she must record in what respect he/she is not so satisfied, enter a plea of not guilty and deal with the matter in terms of section 122(1). The magistrate must advise the accused of the DPP’s decision.

If the accused pleads not guilty, section 122(1) provides that the court must act in terms of section 115.The magistrate will ask the accused whether he/she wishes to make a statement indicating the basis of his/her defence. If the accused does not make a statement, or does so, but it is not clear from the statement to what extent he/she denies or admits the allegations, the court may question him/her in order to establish which allegations in the charge(s) the accused disputes. The court must enquire from the accused whether an allegation which is not placed in issue by the plea of not guilty, may be recorded as an admission. When section 115 has been complied with, the magistrate must stop the proceedings and adjourn the case, pending the decision of the DPP.

The DPP may act as follows: In the case of a guilty plea, X may be referred for sentence to the appropriate court. If it is the High Court or the regional court, these courts may convict and sentence X. These courts must, however, first ascertain whether they are satisfied that the accused understands the allegations in the charge or indictment and may record a plea of not guilty if they are not so satisfied. The DPP may also institute a preparatory examination.

1.b. The general rule is that lower courts have territorial jurisdiction to hear trials of persons who are charged with offences committed within the court’s area of jurisdiction. Discuss the exceptions to this rule, that is, those instances where lower courts will exercise jurisdiction outside their area of jurisdiction on South African territory.(15)

 Regional Courts & District Courts:





Must distinguish between summary trial & preparatory examination.



Summary trial: MC → judges →guilty | not guilty.

Preparatory examination → hearing is not tried but evidence is heard which is sent to

DPP to decide whether to institute prosecution or not and in which court.

Summary Trial



District & regional court have jurisdiction to hear trials of persons charged with offence committed within district or regional division.

1.

This principle has been extended as follows: when any person charged with any offence a) Committed within 4km beyond boundary of district or regional div.

a) Committed in or upon any Vessel or vehicle on voyage or journey, any part whereof performed within 4km from boundary of district or regional div. b) Committed on board any vessel on journey on any river within Republic or forming the boundary of any part thereof and the journey or part thereof was performed in the district or regional div or within 4km of it. c) Committed on board any Vessel on a voyage within territorial waters that adjoin the district or regional div. d) Begun or completed within the district or regional div then person may be tried by the court of the district or regional div as the case may be.



4km rule : May be tried in area for offence committed in another province but within a 4km beyond boundary of the particular area if it is an offence under common law or statutory law operative in both provinces concerned.

 Cannot apply rule where statutory provision is similar or not applicable.



This 4km rule only applies within South African borders subject to extra-territorial jurisdiction.



4km rule does not apply to high courts

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.

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 of jurisdiction, likewise if the regional court in whose area of jurisdiction the magistrate’s court is situated may have jurisdiction to the in respect of such offence if it is tried by the regional court.

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.

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.

if an offence is committed on a South African aircraft, the offence is deemed for purposes of criminal jurisdiction to have been committed in any place the accused happens to be.

11.

the National Director of Public Prosecutions has unlimited discretion to order a trial to take place in the area of another Director of Public Prosecutions.

Preparatory examinations





Conducted in a MC within whose area of jurisdiction the offence committed.

DPP may if expedient (no of accused | disturbance of public order) direct that preparatory examination be held in another court within the area of his jurisdiction.

Unit 3 – prosecuting crime

Determine why it is necessary for the state to conduct private prosecutions. In the light of this fact, is there a place for the procedural figure of private prosecution?

The commission of a crime is regarded by most modern states as a violation of public interest. Punishment is imposed in principle on behalf of the community and in order to protect the interest of the individual who was the victim of the crime. For this reason the state should also institute the necessary functions relating to prosecution.

Private prosecutions are essential safety valves or counterbalances through which any dissatisfaction or pressure that builds up in society as a result of the decision of the prosecuting authority not to institute a prosecution can be relieved. The legitimacy of a country's legal system in general and its prosecuting authority in particular is protected and strengthened by building a system of checks and balances into its legal system.

Consequently the rights of an accused during a private prosecution are similar to those of any other accused person Bothma v Els 2010 (1) SACR 184 (CC).

Discuss the functions and powers of the DPP and compare them with those of the NDPP. (15 marks)

A director is authorised to undertake the prosecution of criminal cases and any appeal arising from such cases, as well as the prosecution of criminal cases and any appeal or review arising from such cases in a particular area of jurisdiction of the High Court of South Africa and may delegate this authority. It is the DPP's duty to control and supervise prosecutors in lower courts, while prosecutors are appointed by the NDPP. The DPP also has certain extraordinary powers as provided in section 185 of the Act, as well as the authority to identify certain offences by way of a certificate as special offences that have certain consequences, particularly as regards the granting of bail to the accused. The DPP's functions must be exercised in accordance with the laws and customs of the Republic, and in accordance with the policy and stipulations of the NDPP. It is the duty of the DPP to exercise discretion concerning the institution of a prosecution in order to ensure that the legitimacy of the criminal justice system is not jeopardised by discriminatory prosecution.

The NDPP, as head of the prosecuting authority, shall have authority over the exercising of all powers and performance of all duties conferred on any member of the prosecuting authority by the Constitution and he -

 must determine prosecution policy and issue policy directives;

 may intervene when policy directives are not complied with;

 may review a decision to prosecute or not to prosecute, after consultation with the relevant DPP.

 Where an offence was committed wholly or partially within the area of jurisdiction of one DPP, the

NDPP can direct that it be investigated and tried within the area of another DPP.



The NDPP must frame a code of conduct which members of the prosecuting authority must comply with. This has been done and is known as The Code of Conduct for Members of the Prosecuting

Authority.

 The NDPP may authorise any competent person in the employ of public service to conduct prosecutions, subject to is control and direction.



The NDPP has the power to institute and conduct a prosecution in any court in the Republic in person.



The NDPP must also issue policy directives and he may intervene where these are not observed.

The President of the Republic of South Africa, Mr TMB, summarily suspended and removed the National

Director of Public Prosecutions (NDPP), Mr VP, for the following reasons: `ìnsubordination'', `àrrogance'', the assertions that he was `ùnqualified'' for the post and that `às he serves at the pleasure of the President, the latter can summarily remove him from office for any reason, even before the NDPP's term of office expires''. Is the removal of the NDPP by the President, Mr TMB, just? Discuss with specific reference to the following aspects:

(i) Who appoints the NDPP? (1)

(ii) What are the qualifications for appointment as NDPP? Name two (2)

(iii) What is the term of office of the NDPP? (1)

(iv) Subject to the provisions of section 12 of the National Prosecuting Authority Act 32 of 1998, under which circumstances may the NDPP be suspended and removed from office? (8)

(v) With reference to your discussion of item (iv) and the facts above, comment briefly on

(i) appointed by the President, as head of the national executive

(ii) 1. Must be entitled to practice in all courts in the republic

2. Be a fit and proper person with due regard to experience, conscientiousness and integrity to

be entrusted with the responsibilities of the office concerned.

3. Must be a south African citizen

(iii) NDPP shal hold office for a non-renewable term of 10 years but must vacate office on attaining the age of

65

(iv) NPAA – s12(6) (a) The President may provisionally suspend the National Director or a Deputy

National Director from his or her office, pending such enquiry into his or her fitness to hold such office as the President deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office-

(i) for misconduct;

(ii) on account of continued ill-health;

(iii) on account of incapacity to carry out his or her duties of office efficiently; or

(iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned. s12(7) The President shall also remove the National Director or a Deputy National Director from office if an address from each of the respective Houses of Parliament in the same session praying for such removal on any of the grounds referred to in subsection (6) (a), is presented to the President. s12(8) (a) The President may allow the National Director or a Deputy National Director at his or her request, to vacate his or her office-

(i) on account of continued ill-health; or

(ii) for any other reason which the President deems sufficient.

(v) In terms of s12(a)(iv) the president can provisionally suspend the NDPP if it is presumed that the NDPP is unqualified for the post. The veracity of the president’s claim of “unqualified” has to be proven upon the enquiry.

However there is no rule that stipulates that due to “arrogance” or “insubordination” the NDPP can be removed from his post.

Accordingly, in view of Mr TMB’s assertion that the NDPP lacks the qualification the NDPP can be provisionally suspended until such time that the allegations are verified.

During a soccer match, player X intentionally bumps into player Y, a 15-year- old schoolboy. Y's hip is fractured and his medical expenses amount to R80 000. Y lays a charge of assault against X but the director of public prosecutions declines to prosecute.

Advise Y and his parents about the criminal procedural steps available to them in the light of the foregoing. (5)

There are two forms of private prosecutions, namely:

(i) by an individual on the basis of a nolle prosequi

(ii) under statutory right

Number (i) above is applicable here.

Any person upon whom the right to prosecute in respect of any offence is expressly conferred by law may institute and conduct a prosecution in respect of such offence in any court competent to try that offence section 8(i) of the Act.

Requirements

(i) A certificate nolle prosequi -.

(ii) Locus standi of a private prosecutor:

(a) Any private person who proves some substantial and peculiar interest in the issue of a trial arising out of some injury which he/she individually suffered in consequence of the commission of the said offence. The question here is basically whether it is clear that a legal right of a person has been infringed by an offence. Y’s parents surely qualify because they will be responsible for their minor son’s medical expenses.

(b) The legal guardian or curator of a minor, if the offence was committed against his/her ward. This is also the position in the question.

In Mullins v Pearlman it was decided that only persons who can prove that they have suffered actual damage as a result of the commission of the alleged offence are entitled to institute a private prosecution.

Security by the private prosecutor

An amount of R1 500 is to be deposited with the magistrate’s court in whose area of jurisdiction the offence was committed, as security that the private prosecutor will prosecute the charge to a conclusion without undue delay. The court may determine a further amount to be deposited as security for the costs which the accused may incur in respect of his/her defence to the charge.

Procedure to be followed

In a private prosecution, the same procedure is followed as if it were a prosecution at the instance of the state see section 12(i) of the Act. The private prosecutor may prosecute in person or appoint a legal representative to prosecute on his/her behalf. After the trial, the accused may be found guilty, as in an ordinary criminal trial, and sentenced.

Write notes on the powers of the national director of public prosecutions. (6) o Any DNDPP may exercise any of the functions or duties of the NDPP which he has been authorised to perform. The powers and functions of the NDPP are set out in

Section 22 of the NPAA. o The NDPP, as head of the prosecuting authority, shall have authority over the exercising of all powers and performance of all duties conferred on any member of the prosecuting authority by the Constitution and he -

must determine prosecution policy and issue policy directives;

may intervene when policy directives are not complied with;

may review a decision to prosecute or not to prosecute, after consultation with the relevant DPP. o Where an offence was committed wholly or partially within the area of jurisdiction of one DPP, the NDPP can direct that it be investigated and tried within the area of another DPP. o The NDPP must frame a code of conduct which members of the prosecuting authority must comply with.

This has been done and is known as The Code of Conduct for Members of the Prosecuting Authority. o The NDPP may authorise any competent person in the employ of public service to conduct prosecutions, subject to is control and direction. o The NDPP has the power to institute and conduct a prosecution in any court in the Republic in person.

The distinction between withdrawal of a charge and stopping of the prosecution in detail (10)

The prosecuting authority has the discretion to withdraw a charge before the accused has pleaded. However, the accused is not entitled to a verdict of acquittal, as he may again be prosecuted if new evidence is discovered. A prosecutor may withdraw a charge without the consent of his DPP because a DPP, if dissatisfied with the withdrawal, may charge the accused afresh. Before an accused pleads, the prosecution can also withdraw a summons and issue another- Wolman V Springs Town Council

A DPP may, at any time after the accused has pleaded, but before conviction, stop the prosecution in respect of that charge and then the accused is entitled to an acquittal implying that in any subsequent prosecution in respect of the same facts the accused can later successfully rely on a plea of autrefois acquit (previous acquittal). A public prosecutor may, however, not stop a prosecution without the consent of the DPP or rep of

DPP. Van Wyk

The Prosecution Policy issued by the SA National Director of Public Prosecutions states inter alia that there is no rule of law which provides that “all provable cases brought to the attention of the Prosecuting Authority must be prosecuted”. Nevertheless, this discretion to prosecute is not absolute and is limited by certain rules, principles and factors that should be considered in a decision on whether or not to prosecute. Discuss the discretion to prosecute and the rules, principles and factors on which the decision should be based. (12)

South Africa does not, in principle, follow a system of compulsory prosecution, a prosecutor has a duty to prosecute if there is a prima facie case and no compelling reason for refusal - “Is there a reasonable prospect of success?” The prosecutor must ascertain whether there is a reasonable and probable cause for prosecution and at trial be able to furnish proof beyond a reasonable doubt.

In exercising his discretion, the prosecutor must respect the individual’s right not to be harassed by a prosecution that has no reasonable prospect of success. 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 the accused; or the tragic personal circumstances of the accused (ie a father who has through his negligent driving caused the death of his young children).

Once a prosecutor is satisfied that there is sufficient evidence to provide reasonable prospects of a conviction, a prosecution should normally follow. When considering whether or not to prosecute, prosecutors should consider all relevant factors, including:

 The nature and seriousness of the offence o The seriousness of the offence, taking into account the effect of the crime on the victim, the manner in which it was committed, the motivation for the act and the relationship between the accused and the victim. o The nature of the offence, its prevalence and recurrence, and its effect on public order and morale. o The economic impact of the offence on the community, its threat to people or damage to public property, and its effect on the peace of mind and sense of security of the public. o The likely outcome in the event of a conviction, having regard to sentencing options available to the court.

 The interests of the victim and the broader community o The attitude of the victim of the offence towards a prosecution and the potential effects of discontinuing it. o The need for individual and general deterrence, and the necessity of maintaining public confidence in the criminal justice system. o Prosecution priorities as determined from time to time, the likely length and expense of the trial and whether or not a prosecution would be deemed counterproductive



The circumstances of the offender o The previous convictions of the accused, his criminal history, background, culpability and personal circumstances, as well as other mitigating or aggravating factors. o Whether the accused has admitted guilt, shown repentance, made restitution or expressed willingness to cooperate with the authorities in the investigation or prosecution of others. o Whether the objectives of criminal justice would be better served by implementing non-criminal alternatives to prosecution, particularly in the case of juvenile offenders and less serious matters. o Whether there has been an unreasonably long delay between the date when the crime was committed, the date on which the prosecution was instituted and the trial date, taking into account the complexity of the offence and the role of the accused in the delay.

The relevance of these factors and the weight to be attached to them will depend on the circumstances of each case. When exercising the discretion:

· The police and prosecuting authority should not knowingly allow a pattern of contravention of a certain statute to develop and then, most unexpectedly, arrest and prosecute;

· The DPP should not exercise this discretion in a discriminatory way.

Write notes on the person (or categories of persons) who may institute and conduct a private prosecution, where a director of public prosecutions has declined to institute a prosecution in respect of an offence(7)

Locus standi of a private prosecutor

If the DPP has declined to prosecute, the following people may institute a prosecution in a competent court: o 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 offence;

o A husband, if the offence was committed in respect of his wife; o The wife or child or, if none, any next of kin of any deceased person, if the death of such person is alleged to have been caused by the offence; o The legal guardian or curator of a minor or lunatic, if the offence was committed against his ward.

Whether a person has substantial and peculiar interest, is a question of fact and law. The purpose of private prosecution is to reduce the temptation of taking the law into your own hands. A private prosecutor has the burden of proving his locus standi if it is disputed.

CMP201-6 Page 19 of 51

Mullins and Meyer v Pearlman 1917 TPD 639

Only persons who can prove that they have suffered actual damage as a result of the commission of the alleged offence are entitled to institute a private prosecution.

Unit 4 – the right to legal assistance

Discuss the duty to inform an accused of his/her right to legal representation as well as the legal consequences of a failure to comply with this duty. Same Q asked another way below

Write notes on an accused’s right to legal assistance during his trial. (9)

The duty to inform the accused of this right

A right is of no use to a person if he is not aware of it and the Constitution accordingly provides in

Section 35(2)(b) that he must be informed promptly of the right. A judicial officer thus has a duty to inform an unrepresented accused that he has the right to be legally represented. A judicial officer must explain this right and point out to the accused that he has the right to be legally assisted by a legal representative with whom he can communicate in his own language.

Radebe 1988 (1) SA 191 (T) & Mabaso 1990 (3) SA 185 (A)

A failure on the part of the judicial officer to inform an unrepresented accused of his legal rights, including the right to legal representation, can lead to a complete failure of justice.

To inform the accused A of his right would be worthless if he is too poor to afford it. The

Constitution requires that an accused must be informed promptly that he is entitled to have legal representation appointed for him at State expense if substantial injustice would otherwise result.

The court pronounced in Rudman and Mthwana that a presiding officer has a duty to inform an unrepresented accused of his right to legal representation under common law.

Hlantlala v Dyanti 1999 (2) SACR 541 (SCA)

The court decided that a clear distinction must be drawn between the constitutional right to retain legal counsel at state expense when material injustice would arise without it, and the common law right to 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 for the opportunity to retain legal assistance. A legal officer is duty bound to inform the accused about this in virtue of his common law right to legal representation. The court did not decide the position with regard to the duty of a judge concerning the constitutional right (because the court found that the common law right had been violated), but Unisa suggest that the accused also has to be informed of the content of the constitutional right.

With regard to the question whether the presiding officer had a duty to inform the accused not only of his right to legal representation, but also of his right to legal assistance, the court referred with approval to the verdict in Radebe where it was decided that the content of the common law right to legal representation required that, under suitable circumstances, the court was obliged also to inform the accused that he was entitled to apply to the Legal Aid Board for legal assistance. The court decided that where the presiding officer failed to inform the accused of his

common law right to legal representation, an irregularity might arise.

This irregularity does not in itself result in an unfair trial. The primary question to be resolved is whether the conviction has been affected by the irregularity. The accused will have to show on appeal or review that the irregularity resulted in a failure of justice.

Irregularity = Failure of Justice Test

Where the accused suffers no prejudice, no failure of justice has been caused, just as there will be no injustice if the accused would have been found guilty all the same, regardless of the irregularity and even if the presiding officer did not neglect to inform the accused of his common law right to legal representation.

The duty to afford the accused an opportunity to obtain legal representation

The court must always consider an application by an accused for a postponement in order to enable him to obtain legal representation, as refusal to grant the postponement might amount to an irregularity. If the accused’s legal representative withdraws from the case, the court should ask him whether he wishes to have the opportunity to instruct another legal representative or whether he is ready to undertake his own defence. Failure to do so is irregular and invalidates the proceedings.

However, if the accused is given ample opportunity to obtain legal representation and he doesn’t, he then can’t attack the proceedings unless he has an acceptable explanation for his failure. If a failure by the court to allow a postponement is found to be irregular, the conviction will be set aside.

Provide sections 35(2) and (3) of the Constitution.

(2) Everyone who is detained, including every sentenced prisoner, has the right-

(a) to be informed promptly of the reason for being detained;

(b) to choose, and to consult with, a legal practitioner, and to be informed of this right

promptly;

(c) to have a legal practitioner assigned to the detained person by the state and at state


promptly;

(d) to challenge the lawfulness of the detention in person before a court and, if the

detention is unlawful, to be released;

(e) to conditions of detention that are consistent with human dignity, including at least

exercise and the provision, at state expense, of adequate accommodation, nutrition,

reading material and medical treatment; and

(f) to communicate with, and be visited by, that person's -

(i) spouse or partner;

(ii) next of kin;

(iii) chosen religious counsellor; and

(iv) chosen medical practitioner.

(3) Every accused person has a right to a fair trial, which includes the right-

(a) to be informed of the charge with sufficient detail to answer it;

(b) to have adequate time and facilities to prepare a defence;


(d) to have their trial begin and conclude without unreasonable delay;


(f) to choose, and be represented by, a legal practitioner, and to be informed of this right

promptly;

(g) to have a legal practitioner assigned to the accused person by the state and at state


promptly;

(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;

(i) to adduce and challenge evidence;

(j) not to be compelled to give self-incriminating evidence;

(k) to be tried in a language that the accused person understands or, if that is not

practicable, to have the proceedings interpreted in that language;

(l) not to be convicted for an act or omission that was not an offence under either national

or international law at the time it was committed or omitted;

(m) not to be tried for an offence in respect of an act or omission for which that person has

previously been either acquitted or convicted;

(n) to the benefit of the least severe of the prescribed punishments if the prescribed

punishment for the offence has been changed between the time that the offence was

committed and the time of sentencing; and

(o) of appeal to, or review by, a higher court.

(4) Whenever this section requires information to be given to a person, that information must be

given in a language that the person understands.

(5) 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.

A and B are charged with theft on the allegation that they have harvested and removed, and thereby stolen, green mealies and pumpkins with an estimated value of R7 320 from the land of the headman, which he had leased to the complainant. A and B are also involved with the complainant in an ownership claim by virtue of their allegation that the land does not belong to the headman but to their deceased father. A and B are unrepresented during their trial and testify that they have harvested the mealies and pumpkins from their own land. The magistrate asks the accused whether they are going to retain legal counsel, to which they answer that they cannot afford it. A and B have not asked for legal assistance, and the court deals with the case without any legal representation for A and B, who are found guilty. Did the presiding officer act correctly by dealing with the case without legal representation for the accused? (This question is based on the facts in

Hlantalala.)

The first question that arises is whether the police have a duty to inform the suspect of this right during arrest, interrogation and investigation, and what the consequences of failure to do so would be. If the accused is deprived of the right to legal assistance, all the statements made by her should be excluded as evidence in her trial.

The second question is whether the presiding officer has a duty to inform the accused of the right to legal representation during pre-trial proceedings, and what the consequences would be in the event of failure to do so. Various controversial decisions had been made about this matter before the Supreme Court of Appeal pronounced on it in Rudman;Mthwana, in this case, the dictum in Radebe was cited namely that presiding officers have a duty to inform unrepresented accused about their right to legal representation under common law. Where the charge is serious and justifies a sentence that is potentially prejudicial to the accused, the court must inform the accused of the gravity of the charge and the possible consequences, encourage A and B to take advantage of their right to legal representation, and give them the opportunity to retain legal counsel.

In Hlantalala v Dyanti the court decided that a clear distinction should be made between the constitutional right to retain legal counsel at state expense when 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 for the opportunity to retain legal assistance. A legal officer is duty bound to inform the accused about this in virtue of their common-law right to legal representation. The court did not give a decision on the position with regard to the duty of a judge concerning the constitutional right (because the court found that the common-law right had been violated), but it is suggested that the accused must also be informed of the content of the constitutional right.

With regard to the question whether the presiding officer had a duty to inform the accused not only of their right to legal representation but also of accused’s right to legal assistance, the court referred with approval to the verdict in Radebe, where it was decided that the content of the common-law right to legal representation

required that, under suitable circumstances, the court was obliged also to inform the accused that the accused was entitled to apply to the Legal Aid Board for legal assistance.

In Hlantalala v Dyanti (supra), the decision in Rudman;Mthwana was followed, and the court decided that where the presiding officer failed to inform the accused of her common-law right to legal representation, an irregularity might arise. This irregularity does not in itself result in an unfair trial that would persuade the court of appeal to set aside the conviction. The primary question to be resolved is whether the conviction has been affected by the irregularity. The accused will have to show on appeal or review that the irregularity resulted in a failure of justice. A trial is not made unfair by failure to inform per se. An irregularity will only lead to a failure of justice if there has been real or material prejudice to the accused Ramalope.

The test to determine whether the irregularity in the form of failure to inform the accused of her common-law right has led to a failure of justice has been stated as follows:

Where the accused suffered no prejudice, no failure of justice has been caused, just as there would be no injustice if the accused would have been found guilty in any case, even if the presiding officer had informed the accused of her common-law right to legal representation. The accused is therefore entitled to show prejudice by submitting a declaration under oath to the court of appeal in which it is 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. Further, that had she been aware of this right, she would have exercised it by retaining counsel, either on her own or with the assistance of the Legal Aid Board.

In the present case the presiding officer did not act correctly by not informing the accused of their common law right to legal representation.

By applying the test supra both accused are entitled to show prejudice by submitting a declaration under oath to the court of appeal in which it is stated that they were unaware of their common-law right and therefore unable, for lack of legal representation, to submit their defence during the trial.

Mere lip service is paid to the unhindered application of the principle of the right to legal representation, and this principle is only partly upheld in the South African system of criminal procedure.'' Discuss this statement critically and indicate whether you agree with it. (8 marks)

(1) The right to legal representation is embodied in the Constitution and entrenched in sections 35(2)(b) and

(c) as well as 35(3)(f) and (g).

(2) Historically (since 1819), an accused could only retain the services of legal counsel if she was charged with a serious offence ( S v Wessels1966 (4) SA 89 (C)). This limitation has subsequently lapsed.

(3) Section 73(1) makes the right to legal representation of incarcerated persons subject to the legal stipulations for the management of prisons. This provision therefore influences the free access of legal representatives to their clients in prison.

(4) The term ``legal representative'' must be discussed here. Must the legal representative be a qualified legal practitioner, or can the suspect/accused obtain the assistance of a friend or family member? In other words, can a suspect be assisted by a lay person? s73(1) An accused who is arrested, whether with or without warrant, shall, subject to any law relating to the management of prisons, be entitled to the assistance of his legal adviser as from the time of his arrest. s73(3) An accused who is under the age of eighteen years may be assisted by his parent or guardian at criminal proceedings, and any accused who, in the opinion of the court, requires the assistance of another person at criminal proceedings, may, with the permission of the court, be so assisted at such proceedings.

(5) The vexed question that courts have struggled with for a long time, namely whether an accused should be informed of the right to legal counsel, is relevant in the discussion of this controversial statement.

(6) The question is whether the legislature and the verdicts of the Constitutional Court and the Supreme Court of Appeal really address the problem of legal assistance provided at the expense of the state.

Based on the above considerations I agree with the statement referred to in the question.

Unit 5 – the presence of the accused as a party

(1) Briefly discuss the principle that an accused must be present at his trial.(4 marks)

(2) Briefly discuss each exception to the principle that an accused is entitled to be present at the trial and to confront his accusers. (about four to six marks awarded for each exception).

(3) Discuss the compounding of minor offences and explain the difference between compounding offences and the admission-of-guilt fine.

(1) General rule: trial must take place in presence of accused.

- Now entrenched in Constitution & CPA.

- Seedat: Accused convicted of offence i.t.o insolvency Act. Prior to sentencing, Magistrate called expert witness as result of discussion with the prosecutor in the absence of accused & legal rep. Held on appeal: serious irregularity & disregarded evidence with regard to sentencing.

- Radebe: Magistrate altered suspension order on accused’s drivers licence in his absence. Review: Magistrate acted irregularly.

- Rousseau: Magistrate consulted another medical practitioner re: the testimony of a medical practitioner in accused & legal rep’s absence. Held: serious irregularity, conviction & sentence set aside.

- Principle means more than accused must know what state witnesses have said, requires confrontation: see them as they testify against him, giving evidence in the face of the accused.

- Denial of right = failure of justice → set aside conviction.

(2) A. Absence owing to misconduct

The first exception is the trial of an accused in his absence owing to misconduct. It is necessary to remove an accused from the court if he misbehaves during the trial since he can actually prevent the court from deciding his guilt on the charge in question by making it impossible for the court to continue with the trial. Such a situation would be untenable because it is essential for the proper administration of justice that dignity, order and decorum characterise all proceedings of the court. Flagrant contempt in court for all basic standards of proper conduct is inadmissible, which is why provision has been made in the Act for the removal of the accused and the continuation of the trial in his absence. Presiding officers have discretion in this regard. Nevertheless, as noted in the handbook, the removal of the accused is the resort when all other remedies have failed. The accused has only himself to blame for his absence at the trial and the forfeiture of his constitutional rights. These rights can, however, be regained by behaving properly and with the requisite decorum and respect towards the court in particular and the judicial institution in general.

B. Several accused

The second exception occurs in a situation where there are several accused and one of them is absent. In such cases the trial would normally be postponed to a later date. However, circumstances can be such that the other accused could be prejudiced or embarrassed if the case were postponed, in which case the interests of the absent accused must be weighed against those of the other accused. The Act provides for the trial to continue if it transpires that such continuation is necessary to serve the ends of justice. It stands to reason that the court will only take this course if there is no other alternative (such as separate trials).

C. Evidence by means of closed circuit-television

The third exception is where the court gives or makes an order for evidence to be given by means of closed circuit-television or similar electronic media. Many reasons exist for this exception, for example it may be in the interests of the security of the state or of public safety, or even in the interests of justice for evidence to be given via such medium. Such an order by the court may be subject to any conditions that the court may deem necessary.

3. The purpose of the admission-of-guilt fine, according to section 57 is, firstly, to help the accused to avoid appearing in court and, secondly, to avoid the possibility of the courts being swamped by trials that could otherwise be finalised by this simple procedure (admission-of-guilt fines). Note that an admission of guilt can also be granted to an accused who is awaiting trial while in detention and has already appeared in court on a minor charge (see s 57A). Admission-of-guilt fines are usually only granted for minor offences. The accused must be prepared to pay the fine voluntarily and thereby relinquish the right to confrontation.

In the case of admission-of-guilt fines, the prosecution is instituted at the moment when the summons is issued against the accused. The accused must choose between paying or not paying the fine. If he pays the fine, it serves to indicate that he prefers to be absent at the actual conviction and sentencing.

On the other hand, in the case of a spot fine, the payment of a sum of money (note that the word ``fine'' is completely inappropriate here) is intended to prevent the institution of criminal proceedings.

Discuss briefly the exceptions to the general principle that the trial of an accused, the finding of the court and the imposition of the sentence shall take place in the presence of the accused. (7)

Section 34 of Constitution - Access to courts

Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. s(3) Every accused person has a right to a fair trial, which includes the right-



This general rule is safeguarding access to court and including (as part of the right to a fair trial) the right to a public trial before an ordinary court of law.

Exceptions to the rule in brief

(i) A trial in the absence of the accused on account of his/her misbehaviour so that the continuance of the proceedings is rendered impracticable. This will be done only as a last resort and only if the court cannot avoid doing so. He/she should first be warned. Even after the accused has been removed, it is advisable to give him/her a further opportunity and have him/her brought before the court after the leading of evidence has been completed and to ask him/her whether he/she wishes to give any evidence.

(ii) Absence of the accused where there is more than one accused.

On application by the accused or his/her legal representative, the absence of the accused can be authorised on the following grounds:

(a) the physical condition of the accused is such that he/she is unable to attend or that it is undesirable that he/she should attend the trial; or

(b) that circumstances in connection with the illness or death of a member of the accused’s family have arisen which make his/her absence from the proceedings necessary.

The court will only make such an order if in its opinion the trial cannot be postponed without undue prejudice, embarrassment or inconvenience to the prosecution or any co-accused or any witness. The court may also direct that the absent accused be separated from the proceedings in respect of the accused who are present and when the absent accused returns, the proceedings will continue from the point at which he became absent. If the proceedings continue in his absence, he may examine a witness who testified in his absence and also inspect the record.

(iii) Evidence by means of closed circuit television or similar electronic media.

On application by the prosecutor, accused or a witness or mero motu by the court, the court may order that a witness (with the consent of the witness) or the accused (with the accused’s consent) give evidence through such device. However, the media must be readily available or obtainable.

(iv) Payment of a fine without appearance in court.

An accused may, without appearing in court, admit his guilt in respect of the offence by paying the admission of guilt fine to the clerk of the Magistrates’ Court or to the police. The summons or written notice may stipulate a date by which the admission must be paid.

If a public prosecutor or the clerk of the court believes on reasonable grounds that a Magistrates’ Court, on convicting the accused on the offence in question, will not impose a fine exceeding the amount determined by the Minister (R 5,000 at present), he can endorse the summons when he issues it to the effect that the accused may admit his guilt in respect of the offence and that he may pay a fine stipulated on the summons without appearing in court.

Discuss payment of a fine without appearance in court (admission of guilt). (8)

If a public prosecutor or the clerk of the court believes on reasonable grounds that a Magistrates’

Court, on convicting the accused on the offence in question, will not impose a fine exceeding the amount determined by the Minister (R 5,000 at present), he can endorse the summons when he issues it to the effect that the accused may admit his guilt in respect of the offence and that he may pay a fine stipulated on the summons without appearing in court.

After an accused has appeared in court, but before he has pleaded, a public prosecutor may, if he believes on reasonable grounds as above, hand or cause a peace officer to hand to the accused a written notice with a similar endorsement.

An accused may, without appearing in court, admit his guilt in respect of the offence by paying the admission of guilt fine to the clerk of the Magistrates’ Court or to the police. The summons or written notice may stipulate a date by which the admission must be paid.

The admission payment amounts to a conviction and sentence of the offence concerned and will be regarded as a previous conviction. The judicial officer may in certain instances set aside the conviction and sentence and direct that the accused be prosecuted in the ordinary course.

The public prosecutor can reduce an admission of guilt fine on good cause shown. Although not stipulated, this procedure should only be used for statutory offences (ie traffic offences).

Unit 6 - the exercise of powers and the vindication of individual rights

What is meant by the statement that individual constitutional rights can only be restricted if the limitation is reasonable, justifiable and in proportion to the purpose of the limitation ?

(a)

(b)

(c)

(d)

(e)

Section 36 – Limitation of Rights:

(1) The right in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including; the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Constitution.

The fact that such encroachment is allowed does not mean, however, that the rights of the individual can simply be ignored. On the contrary, much value is attached to the rights of the

individual that all delegated powers that could make inroads on those rights must be seen as exceptions, and that such powers may therefore only be exercised under narrowly circumscribed conditions for which explicit provision is made by law. Such encroachment may also be reviewed by the court to determine whether it conforms to the requirements of the Constitution. in Hammer, an 18-year old prisoner wrote a letter from prison to his mother and, without enclosing it in an envelope, handed it over to the police to be posted. The letter was then read by the police without the prisoner's consent and was given to the DPP for a prosecution. The court decided that a policeman or other person with statutory authority who intercepted and read another person's correspondence without that person's permission was committing the offence of crimen iniuria.

When a person who exercises the powers for which explicit provision is made in legislation, and acts within the limits laid down by such legislation, may invoke the justifying grounds of ``legal authority'' or `òfficial capacity'' if she is charged with a crime as a result of exercising the said powers.

Discuss the concepts ``reasonable'', ``justifiable'' and ``proportionality'' with reference to the criminal procedural powers of the police in the pre-trial phase.

S v Makwanyane 1995 (2) SACR 1 (CC)

The court decided that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by-case basis.

This is inherent in the requirement of proportionality, which calls for the balancing of different interests.

The following guidelines may be followed to determine when a suspicion may be said to be a “reasonable suspicion” or when one could be said to have “reasonable grounds” for believing a state of affairs exists:

- The requirement of reasonableness may be described as a requirement that there be

“reasonable grounds” from which an inference can be drawn. It can, for instance, only be said

that force is “reasonable necessary” if there are “reasonable grounds” for believing that such

force is actually necessary to achieve the goal.

- A person will only be said to have “reasonable grounds” to believe or suspect something or that

certain action is necessary if:

· he really “believes” or “suspects” it;

· his belief or suspicion is based on certain “grounds”; and

· in the circumstances and in view of the existence of those “grounds”, any reasonable person

would have held that same belief or suspicion.

“Justifiable” - The advantages of objectivity in this regard are legion: the officer who is investigating the commission or alleged commission of a crime will not be motivated by a personal desire to exact vengeance, but rather by a desire to determine the facts and thus serve the ends of justice, since she will not harbour a personal grievance against the perpetrator, either through sympathy with the victim or through a desire to protect the community, and will consequently record all the evidence, whether it points to the guilt or innocence of the offender, and regardless of whether it reveals aggravating or mitigating circumstances; she will have no desire to punish the offender, but will rather wish to bring that person before the court so that justice can prevail.

Proportionality : strict rules have been laid down by the legislator to ensure that encroachment on individual rights only takes place when it is reasonable and necessary with a view to the proper investigation of crimes, or for the reasonable and effective combating of crime. In order to be constitutional, these laws must be objectively justifiable in the circumstances, which implies that the law or statutory provision must not only be proportional to the envisaged objective, but must also be the least limiting way in which the objective can be achieved effectively. For example: where force is used in making an arrest, the nature of the force and the way in which it is used must be in proportion to the envisaged objective (to prevent the escape of a suspect so that an arrest can be made, or in order to avert threatening danger).

Discuss the conflict between the interest of society in upholding individual rights and its interest in combating crime, and indicate how this conflict can be resolved. (5 marks)

Society has an interest in upholding individual rights for the experience of freedom, human dignity and security in a fair and just society. And that these rights are not encroached upon by others. To ensure that these rights are not abused by crime, a wider interest in combating crime necessitates the limitation of these rights and it may be necessary to arrest persons and thereby encroach on their freedom of movement or seize property. Society has an interest in combating crime and that powers are delegated to people to serve that purpose. Exercising the powers can make inroads on individual rights that cause conflict, but that such conflict can be resolved by balancing the various conflicting interests and strictly limiting the circumstances in which these powers may be exercised and the constitutionality can only be determined by measuring it against

Section 36 of the Constitution.

The court will have to determine what purpose the limitation sets out to achieve, whether this purpose is sufficiently important to justify a limitation of the right, whether the limitation will be effective to achieve the purpose and whether the purpose could be achieved in another, less restrictive, manner.

The rules of criminal procedure are very strict in order to prevent arbitrary action by the police or private persons and persons acting outside the limits laid down by these rules, act unlawfully.

Therefore, the search of persons or premises, the seizure of objects and the arrest of persons will always be unlawful, unless such action complies with the rules or is justified on some ground of justification.

Unit 7 - methods of securing the attendance of the accused at his trial

Once a suspect has been arrested he mat not be detained for longer than 48 hours. However according to the

Criminal Procedure Act the 48-hour period is considerably extended. Discuss. (5)

The 48 hour rule is considerably extended by Section 50(1)(d)(i) – (iii) the CPA, which provides that if the 48 hour period expires:

(a) on a day which is not a court day, or after 16h00 on a court day, then the 48 hour period is deemed to expire at 16h00 on the next court day (eg arrested Wednesday 18h00, expires Monday 16h00);

(b) on a court day before 16h00, then period expires at 16h00 on such court day;

(c) at a time when the arrestee is outside the court’s area of jurisdiction and is in transit to court, then period ends at 16h00 on next court day after he is brought into court’s area of jurisdiction;

(d) at a time when arrestee cannot be brought to court because of his physical illness or other physical condition, court can order that he be detained (eg at hospital) for as long as is necessary for him to recuperate so as to prevent abuse.

Court day is a day on which the court is sitting (ie Monday to Friday).

If the 48 hour period expires on a day when the periodical court is not in session, an arrested person should be brought before a district court which has jurisdiction over the area of the periodical court.

If the accused is held for more than 48 hours, his detention is unlawful and his escape will then not be unlawful. The police may release certain arrestees before the 48 hour period lapses.

Discuss the principles attached to extradition agreements and treaties. (5)

- Extradition is only granted in respect of serious crimes.

- A person is not extradited to a foreign state if he is charged with a crime of a political nature.

- A person is tried in the state to which he is extradited only for the crime in respect of which he has been extradited.

- Extradition is refused if the crime for which extradition is sought is punishable by the death penalty.

- An extradition agreement usually contains a ne bis in idem rule which corresponds with pleas of autrefois acquit and autrefois convict.

(i) X is a police officer who drives a clearly identifiable police vehicle. While on patrol late one night X notices a vehicle that fits the description of a vehicle that was reported stolen earlier that night (make, registration number, etc). X signals to the driver (Y) to stop, arrests Y and asks him for his personal particulars. Y refuses to give the particulars because X is dressed in civilian clothes.

(i)Is X authorised to arrest Y, and may Y refuse?

(ii) With reference to the facts in (i), suppose that Y speeds away before X can get him to stop. X sets out in pursuit, but by swerving from side to side across the road Y thwarts every effort by X to pass him. X fires a warning shot, which Y ignores. X then fires several shots at Y and eventually wounds him in the back. The vehicle is brought to a halt and X arrests Y. The body of another person (Z) is found on the passenger seat of the vehicle. It transpires later that Z had assisted Y with the theft of the vehicle, taken fright when he noticed the approaching police vehicle and had hidden on the front seat even before X gave the initial signal to stop. X was unaware of the presence of Z and was under the impression that Y was the only occupant of the vehicle. Ballistic tests prove that Z was killed by a bullet fired by

X. X is charged with the murder of Z and of attempted murder in the case of Y. At his trial X invokes the protection provided by section 49(2).

Will his defence succeed?

(i) Circumstances may arise where the delay caused by obtaining warrant will enable the suspect to escape and therefore the CPA empowers persons to arrest in circumstances in which any right-thinking citizen would normally feel morally obliged to intervene, so that a citizen would be reasonably safe in obeying his instincts in deciding whether or not be should effect an arrest.

The powers of arrest of peace officers are wider than those of private individuals and that wider powers are given in respect of the arrest of persons who are caught in the act, than in respect of persons who are merely suspected of the commission of an offence where only a reasonable suspicion will justify an arrest.

Tsose v Minister of Justice 1951 (3) SA 10 (A)

It was held that if the object of an arrest is to frighten or harass and so induce him to act in way desired by the arrester, without his appearing in court, the arrest is unlawful.

Punitive arrest (arrest to punish the offender) is therefore illegal.

· Powers of peace officers

Section 40(1) of CPA - A peace officer may without warrant arrest any person -

1.

who commits or attempts to commit any offence in his presence;

2.

whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;

3.

who has escaped or who attempts to escape from lawful custody;

4.

who has in his possession any implement of housebreaking or carbreaking as contemplated in Section 82 of the General Law Third Amendment Act, 1993, and who is unable to account for such possession to the satisfaction of the peace officer;

5.

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;

6.

who is found at any place by night in circumstances which afford reasonable grounds for believing that such person has committed or is about to commit an offence;

7.

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;

8.

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;

9.

who is found in any gambling house or at any gambling table in contravention of any law relating to the prevention or suppression of gambling or games of chance;

10.

who wilfully obstructs him in the execution of his duty;

11.

who has been concerned in or against whom 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 or fugitive offenders, liable to be arrested or detained in custody in the Republic;

12.

who is reasonably suspected of being a prohibited immigrant in the Republic in contravention of any law regulating entry into or residence in the Republic;

13.

who is reasonably suspected of being a deserter from the South African National Defence Force;

14.

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;

15.

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;

16.

who fails to surrender himself in order that he may undergo periodical imprisonment when and where he is required to do so under an order of court or any law relating to prisons;

17.

who is reasonably suspected of having committed an act of domestic violence as contemplated in section

1(2) of the Domestic Violence Act, 1998, which constitutes an offence in respect of which violence is an element.

The relevant provision of section 40(5) is sufficient grounds to arrest Y, as Y was in possession of a vehicle that

X reasonably suspected to be stolen property.

Furthermore, Section 41(1) of CPA -

A peace officer may call upon any person -

(a) whom he has power to arrest;

(b) who is reasonably suspected of having committed or of having attempted to commit an

offence;

(c) who, in the opinion of the peace officer, may be able to give evidence in regard to the

commission or suspected commission of any offence, to furnish such peace officer with his full name and address, and if such person fails to furnish his full name and address, the peace officer may forthwith and without warrant arrest him, or, if such person furnishes to the peace officer a name or address which the peace officer reasonably suspects to be false, the peace officer may arrest him without warrant and detain him for a period not exceeding twelve hours until such name or address has been verified.

Therefore X was also justified in terms of section 41 in asking Y for his particulars and arresting him immediately for refusing to disclose the requested information. If Y knew that the person who wished to arrest him was a police officer, regardless of how X was dressed, his refusal to provide his particulars would constitute an unlawful act. It would depend on the factual issue of whether he was or could have been aware of the identity of the arresting officer.

It was reasonable for X to suspect that Y had perpetrated a theft or was in possession of suspected stolen property.

X carried out the arrest lawfully according to section 39 of the Act:

Lawful arrest and lawful continued detention are based on 4 pillars:

(1) The arrest (with or without a warrant) must have been properly authorised.

(2) The arrester must exercise physical control over the arrestee and must limit the arrestee’s freedom of movement. Unless the arrestee submits to custody, an arrest is effected by actually touching his person or, if circumstances require, by forcibly confining his person.

(3) The arrester must inform the arrestee, at the time of the arrest or immediately thereafter, of the reason for his arrest or hand him a copy of the warrant. An arrestee’s detention will be unlawful if this is not complied with and the question whether the arrestee was given an adequate reason for his arrest depends on the circumstances of each case, particularly the arrested person’s knowledge concerning the reasons for his arrest.

The exact wording of the charge need not be conveyed at the time of the arrest. When he is informed of the reason for his arrest later and after an unlawful arrest, the detention will be lawful.

(4) The arrestee must be taken to the appropriate authorities as soon as possible and Section 50(1) of the CPA provides that the arrestee must be taken to a police station or is his arrest was made in terms of a warrant; he must be taken to the place mentioned.

(ii) The burden of proof is on X to show that all the requirements for a successful invocation of section 49 have been met. s49

(1) For the purposes of this section:

(a) àrrestor' means any person authorised under this Act to arrest or assist in arresting a suspect; and

(b) `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.

(2) 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:

(a) 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;

(b) 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

(c) 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.

Matlou v Makhubedu 1978 (1) SA 946 (A)

The degree of force used should be proportional to the seriousness of the offence in respect of which the attempt is made to arrest the suspect. The less serious the offence, the less the degree of force that may be used in order to effect the arrest.

Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA)

The proportionality test in Matlou supra is too narrow and should not only refer to the seriousness of the offence, but should actually refer to all the circumstances in which the force was used.

Not only the seriousness of the offence, but all circumstances such as whether the suspect is armed, poses a threat to the arrester or another person, is known and can easily be apprehended at a later stage, etc, should be taken into account in determining whether the use of a particular degree of force was justified.

Until recently, the use of deadly force in order to effect an arrest was governed by the previous Section 49(2) providing that the killing of a person who is to be arrested for an offence referred to in Schedule 1 but who could not be arrested or be prevented from fleeing by other means than by killing him, would be deemed to be justifiable homicide. However, in Walters 2002 (4) SA 613 (CC) the previous Section 49(2) was declared to be unconstitutional and this section has now been repealed and replaced. The law with regard to the use of force in order to affect an arrest was also stated. If an accused has killed another and claims the protection afforded by Section 49, the onus is on him to show on a balance of probabilities that the requirements of this section were complied with. It is important that the police do not exceed the limits of their powers in terms of Section

49. Accordingly, every facet of police action under Section 49 must be carefully analysed and measured against the requirements of this section.

“Deadly force” or “potentially lethal force” should be regarded as referring to that degree of force which has the potential of killing the suspect. Our courts have always emphasized that an arrester should not indiscriminately have recourse to shooting at a suspect in order to affect an arrest.

A private citizen should exercise the powers conferred upon him in terms of Section 42 and 49 of the CPA sparingly and with great caution.

In respect of the justification for killing Z and wounding Y, the following aspects are considered:

(1) What are the nature and the seriousness of the offences committed or suspected to have been committed by the suspects? When lethal force or potentially lethal force is used, the court in Walters found that the offences committed by the suspect(s) had to have involved the infliction or threatened infliction of serious bodily harm. (In the question under discussion, the offence was one of theft which did not involve any infliction or threatened infliction of serious bodily harm.)

(2) What were the circumstances under which X used his firearm? Were they such that it was reasonable and necessary for X to use such force in order to carry out the arrest?

Neither X nor any other persons were in danger of grievous bodily harm. He did not use force that was proportional to the nature of the circumstance.

(3) Was there any immediate threat of violence or of the infliction of death or serious bodily harm against X in the given circumstances?

In Ex Parte Minister of Safety and Security and others: In Re Walters the court expounded upon this requirement as follows: 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 grievous bodily harm and there are no other means of carrying out the arrest, whether at that time or later.

Accordingly in the present case X had no reason to use such force as the suspect does not fall within the ambit of the above requirement.

(4) Was there any other reasonable means of carrying out the arrest, then or later, other than killing Z or seriously wounding Y?

X could have called for assistance from other officers over the radio and continued chase until such time it would have been easier, with help, to catch Y.

In this particular case, X cannot successfully invoke the protection offered by section 49(2) to justify the killing of Z. He was unaware of the presence of Z and consequently cannot prove that he had made an effort to arrest him.

Requirements for the use of force:

The following requirements must be met before an arrester may use force in order to effect the arrest:

(1) The person to be arrested must have committed an offence. If the arrester is doing so on the suspicion that the suspect has committed an offence, the suspicion must be reasonable.

(2) The arrester must be lawfully entitled to arrest the suspect.

(3) The arrester must attempt to arrest the suspect.

(4) The arrester must have the intention to arrest the suspect and not to punish him.

(5) The suspect must attempt to escape by fleeing or offering resistance.

(6) The suspect must be aware that an attempt is being made to arrest him or in some way be informed of the intention and continue to flee or resist arrest.



The arrester can’t take it for granted that arrestee knows somebody is attempting to arrest him -

Barnard (van with exploding noises)

(7) There must be no other reasonable means to affect the arrest.

(8) The force used must be directed against the suspected offender.



If there are several people in a car, you can’t shoot indiscriminately.

(9) The degree of force that may be used to affect the arrest must be reasonably necessary and proportional in all the circumstances.

Or that he had had the intention of arresting him (see requirements (3), (4) and (5).

X retains his other defences under criminal law, such as a lack of unlawfulness (eg justifying the unlawful act on the grounds of necessity or private defence excludes the unlawfulness of the action) according to the principles of criminal law. A review of the principles of criminal law will reveal that X cannot be convicted on a charge of murder because he did not foresee the possibility that another person besides Y could be present in the vehicle. It is open to debate, however, whether X would not be found guilty of culpable homicide in respect of Z.)

A, B and C are all part of a gang who call themselves “the tigers of houtbay”. Part of their gang related activities involves breaking into shops after business hours and stealing various items to again sell it on flea markets for a profit. They also deal in drugs but do not have much experience in dealing. One evening they reach mutual consensus to rob the woolworths store in a well-known shopping mall in cape town. The agreement is to the effect that a and b will break into the shop while c stands guard outside. X, a police official walks by the woolworths store and sees the doors of the shop are slightly open even though the shop has already closed and the lights are off. He decides to enter the shop and sees A and B putting items into a bag. X

screams at A and B to immediately cease their activity and that he is arresting them and X consequently handcuffs them. As they are about to exit the shop, C, who had in the meanwhile retired to the cloakroom , sees A and B were arrested and he sees X and starts running. X shouts at C to stop, but C continues to run.

Accordingly X fires a shot that fatally hits C in the back.

With the abovementioned facts in mind, answer the following questions.

1.Discuss whether X acted lawfully or not in arresting A and B?

2.Would your answer in question 1 above have been different had x not been a police official? Discuss.

3. Was X’s action in respect of C reasonable? Discuss.

SUGGESTED ANSWERS

1)Arrest without a warrant

In terms of s 40 every peace officer may, without a warrant, arrest:

(1)

(2)

Any person who commits or attempts to commit any offence in his

Any person whom he reasonably suspects of having committed an offence referred to in the First

Schedule, other than the offence of escaping from lawful custody.

(3)

(4)

(5)

Any person who has escaped or who attempts to escape from lawful custody.

Any person who has in his possession any housebreaking implement or carbreaking implement

Any 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.

(6) 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.

(7) 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.

(8) 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.

(9) 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.

(10) Any person who obstructs him in the execution of his duty.

(11) Any person who has been concerned in or against whom 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.

(12) Any person who is reasonably suspected of being a prohibited immigrant in the Republic in contravention of any law regulating entry into or residence in the Republic.

(13)Any person who is reasonably suspected of being a deserter from the South African National Defence

Force.

(14)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.

(15)Any person who is reasonably suspected of having failed to pay any fine or part thereof on the date fixed by order of court

(16)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.

See chapter 7 page 103-105.

2) In terms of s 42 a private person may, without a warrant, arrest the following persons:

(1) Any person who commits or attempts to commit in his presence or whom he reasonably suspects of having committed a First Schedule offence

(2) Any person whom he reasonably believes to have committed any offence and to be escaping from and to be hotly pursued by a person whom such private person reasonably believes to have authority to arrest that person for the offence;

(3) Any person whom he is by any law authorised to arrest without warrant in respect of any offence specified in that law.

(4)

(5)

Any person whom he sees engaged in an affray;

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, etc may without a warrant arrest the person so found.

3) The previous s 49 (2) of the Act justified, in certain limited circumstances, the killing of a suspect who resists an arrest or who flees. The requirements for justifiable homicide were the following:

• The arrester or person assisting in the arrest must have been authorised to arrest the suspect;

• The arrester or person assisting must have had reasonable suspicion that the suspect had committed a

Schedule 1 offence;

• The arrester or person assisting must have attempted to arrest the suspect;

• The suspect must have been aware of the fact that the arrester or assistant tried to arrest him/her;

• The suspect must have resisted the arrest or have taken flight;

• There must have been no other way in which the suspect's resistance or flight could have been overcome or prevented;

• The amount of force used must have been proportional to the seriousness of the offence.

In Ex parte Minister of Safety and Security and Others: 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 (i.e. right to life) and the desired outcome (the purpose of arrest is to bring the accused before court), since it authorised the use of deadly force for any schedule 1 offence committed.

4) The fundamental principles decided on by the Constitutional Court and the Supreme Court of Appeal in

Walters and Govender 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:

• The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

• Arrest is not the only means of achieving this purpose, nor always the best.

• Arrest may never be used to punish a suspect.

• Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

• Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

• In deciding what degree of force is both reasonable and necessary, all the circumstances of the offence the suspect is suspected of having committed must be considered; the force must be proportional in all these circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances.

• Shooting a suspect solely in order to carry out an arrest is permitted in very limited only.

• Such shooting is not usually 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.

• 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.

5) The revised section 49 (2) of the Act stipulates that:

'If any arrester 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 arrester 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 arrester 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 that

• The force is 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;

• There is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or

• 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.’

6) The revised section 49 (2) no longer distinguishes between Schedule 1 and other offences.

In this case: in order for X to have acted lawfully and to claim the protection afforded by section 49 (2), X must meet the conditions of section 49 (2):

• X must attempt to arrest suspect C;

• C must resist, flee or both;

• C must realise that an attempt to arrest him is made by X;

• It must be impossible to arrest C without using force;

• X may use force only if it is reasonable and proportional in the particular set of circumstances.

Conclusion:

In applying this to X, X will not be afforded the protection of the amended section 49 because the shooting was disproportionate to the offence. There was no immediate threat to life or bodily harm.

(1) Discuss the concepts of a summons, a written notice to appear, an indictment, and (a warning to appear in

court?) as methods of ensuring the presence of an accused at his trial. (Between four and six marks are awarded for a discussion of each method.)

Section 38 of CPA - Methods of securing attendance of accused in court

The methods of securing the attendance of accused in court for the purposes of his trial shall be arrest, summons, written notice and indictment in accordance with the relevant provisions of this

Act.

 Summons:



This is used for a summary trial in a lower court where the accused is not in custody or about to be arrested when there is no reason to suppose that such an accused will abscond, attempt to hamper police investigation or attempt to influence State witnesses. The accused may still have to be arrested after summons if it becomes clear he will attempt to defeat the ends of justice.



If the person summoned fails to appear, he commits an offence and is liable to punishment of a fine or imprisonment for a period not exceeding 3 months.

 Written notice to appear



If a peace officer believes on reasonable grounds that a Magistrates’ Court, on convicting an

accused of an offence, will not impose a fine exceeding R 2,500, he may hand the accused a

written notice



If an accused fails to respond to the written notice, the provisions of Section 55 of the CPA apply as for the summons.



A written notice differs from a summons as follows:

- A written notice is prepared, issued and handed directly to the accused by a peace officer, whereas a summons by the prosecutor issued by clerk of the court and served by messenger of court or a police official.

- A written notice always offers the accused the option of payment a set admission of guilt fine, whereas a summons need not provide this option.

 Indictment

 At a trial in a superior court the charge is contained in a document known as a indictment, which is drawn up in the name of the DPP.



The indictment, together with a notice of trial, must be served on the accused at least 10 days

(Sundays and public holidays excluded) before the date of the trial unless the accused agrees to a shorter period. the main difference between an admission of guilt fine and compounding of minor offence.

In the case of admission-of-guilt fines, the prosecution is instituted at the moment when the summons is issued against the accused. The accused must choose between paying or not paying the fine. If he pays the fine, it serves to indicate that he prefers to be absent at the actual conviction and sentencing. On the other hand, in the case of a spot fine, the payment of a sum of money (note that the word ``fine'' is completely inappropriate here) is intended to prevent the institution of criminal proceedings.

(2) Discuss the requirements for lawful arrest, warrants of arrest and the execution of arrest, the effect of arrest, the duty to arrest, and escape from lawful custody. (Between four and six marks are awarded for a discussion of each subject.)

The requirements for a lawful arrest

Lawful arrest and lawful continued detention are based on 4 pillars:

(1) The arrest (with or without a warrant) must have been properly authorised.

(2) The arrester must exercise physical control over the arrestee and must limit the arrestee’s freedom of movement. Unless the arrestee submits to custody, an arrest is effected by actually touching his person or, if circumstances require, by forcibly confining his person.

(3) The arrester must inform the arrestee, at the time of the arrest or immediately thereafter, of the reason for his arrest or hand him a copy of the warrant. An arrestee’s detention will be unlawful if this is not complied with and the question whether the arrestee was given an adequate reason for his arrest depends on the circumstances of each case, particularly the arrested person’s knowledge concerning the reasons for his arrest.

The exact wording of the charge need not be conveyed at the time of the arrest. When he is informed of the reason for his arrest later and after an unlawful arrest, the detention will be lawful.

(4) The arrestee must be taken to the appropriate authorities as soon as possible and Section 50(1) of the CPA provides that the arrestee must be taken to a police station or is his arrest was made in terms of a warrant, he must be taken to the place mentioned.

Arrest with a warrant

A warrant for the arrest of a person is a written order directing that the person described in the warrant be arrested by a peace officer in respect of the offence set out therein and be brought before a lower court.

· The issue of a warrant of arrest

Upon the written application of a DPP, prosecutor or police officer, a Magistrate or justice of the peace for issue of warrant of arrest. The application must -

 set out alleged offence;

 allege that such offence was committed in area of jurisdiction of such Magistrate,

 or in the case of a justice of peace, within the area of jurisdiction of the Magistrate within whose district or area application is made to the justice for such warrant, or where the offence was not committed within his area of jurisdiction, that the person in respect of whom the application is made, is known or is on reasonable grounds suspect to be within such area of jurisdiction.

 state that from information taken on oath, there is a reasonable suspicion that the person committed the alleged offence.

A warrant may be issued on any day and remains in force until cancelled or executed and, if issued in one district, is valid in all districts in throughout the Republic.

The execution of a warrant of arrest

A warrant of arrest is executed by a peace officer, who includes a Magistrate, justice of peace, police official, member of correctional services and certain persons declared by the Minister of Justice to be peace officers for specified purposes. Kalase

A charge of resisting an arrest made in terms of a warrant will not fail merely because the police officials were not in uniform, provided it appears that the warrant was shown and explained to the arrestee and that he knew or was informed that it was being executed by the police. Upon demand by the arrestee, a copy of the warrant must be handed to him and if no such copy can be provided the arrest is unlawful.

The effect of an arrest

The effect of a lawful arrest is that the arrestee will be in lawful custody and may be detained until he is lawfully discharged or released. The fat that an arrest is unlawful, will not affect the liability of an accused insofar as the offence is concerned in connection with which he is detained. If the arrestee is being unlawfully detained, he may apply to the court for an order for his release. The application is brought by an interested party and the question in the application is whether he is being detained unlawfully.

The duty to arrest

General Rule: There is no obligation on private individuals to arrest someone

Section 47 of CPA - Private persons to assist in arrest when called upon.

Resisting arrest and attempts to flee (very NB!!)

· Use of force in effecting an arrest

General Rule: Force may not be used to effect an arrest.

Exception!! If the person to be arrested submits to the arrest, force may not be used. Force can only be used to overcome resistance to the arrest or to prevent the subject from fleeing. The use of force to punish the person who is being arrested will always be unlawful.

The requirements for the use of force

The following requirements must be met before an arrester may use force in order to effect the arrest:






(6) The suspect must be aware that an attempt is being made to arrest him or in some way be informed of the intention and continue to flee or resist arrest.

The arrester can’t take it for granted that arrestee knows somebody is attempting to arrest him -


(7) There must be no other reasonable means to effect the arrest.


(9) The degree of force that may be used to effect the arrest must be reasonably necessary and proportional in all the circumstances.

Escape from lawful custody

Escaping from lawful custody or attempting to is a serious offence. This includes a person in custody, but not yet lodged in any prison or police cell. Anyone assisting him to escape or harbouring or concealing him also commits an offence.

If X and Y in above are unlawfully arrested by the police officer, what are the consequences thereof? (3)

The effect of a lawful arrest is that the arrestee will be in lawful custody and may be detained until he is lawfully discharged or released. The fat that an arrest is unlawful, will not affect the liability of an accused insofar as the offence is concerned in connection with which he is detained.

If the arrestee is being unlawfully detained, he may apply to the court for an order for his release. The application is brought by an interested party and the question in the application is

whether he is being detained unlawfully. Uncertainty prevailed whether to apply the principles of the English law remedy habeas corpus or the Roman-Dutch remedy interdictum de libero homine exhibendo.

Kabinet van die Tussentydse Regering van Suidwes-Afrika v Katofa 1987 (1) SA 695 (A)

The court held that the principles of habeas corpus are not part of South African law and that the principles of the interdictum de libero homine exhibendo must apply and that parties against whom such order have been made, ma appeal against them.

Z sees a red motor vehicle moving at a high speed, suddenly swerving from side to side and colliding with a white motor vehicle. Both vehicles overturn and burst into flame. Z notices a person running away from the red motor vehicle. Z shouts at the person (P) to stop as he hears screams coming from the other vehicle. P keeps on running. Z draws his fire-arm and shoots at P, killing him. It later appears that P was the driver of the first car and that persons in both vehicles were killed in the collision. Discuss the legality or otherwise of Z's action in killing P when Z is indicted for the murder of P. (8)

Z used deadly force in this scenario. Z could either be a police official or a private individual, therefore we have to establish whether Z is “an arrestor” according to section 49(a) and complies with the provisions of section

40 or section 42. s 49(1) For the purposes of this section -

(a) 'arrestor' means any person authorised under this Act to arrest or to assist in arresting a suspect; and

In terms of s 40 every peace officer may, without a warrant, arrest:

(1) Any person who commits or attempts to commit any offence in his presence.

(2) Any person whom he reasonably suspects of having committed an offence referred to in the First

Schedule, other than the offence of escaping from lawful custody.

In terms of s 42 a private person may, without a warrant, arrest the following persons:

(1) Any person who commits or attempts to commit in his presence or whom he reasonably suspects of

having committed a First Schedule offence

(2) Any person whom he reasonably believes to have committed any offence and to be escaping from

and to be hotly pursued by a person whom such private person reasonably believes to have authority

to arrest that person for the offence;

(3) Any person whom he is by any law authorised to arrest without warrant in respect of any offence

specified in that law.

In terms of this section X may have authority to arrest P for reasonably suspecting an offence of culpable homicide.

Is P a suspect? According to section 49(b) a ‘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.

In the case under discussion P was “running away” from the red vehicle,

3) The previous s 49 (2) of the Act justified, in certain limited circumstances, the killing of a suspect who resists an arrest or who flees. The requirements for justifiable homicide were the following:

• The arrester or person assisting in the arrest must have been authorised to arrest the suspect;

• The arrester or person assisting must have had reasonable suspicion that the suspect had committed

a Schedule 1 offence;

• The arrester or person assisting must have attempted to arrest the suspect;

• The suspect must have been aware of the fact that the arrester or assistant tried to arrest him/her;

•

•

The suspect must have resisted the arrest or have taken flight;

There must have been no other way in which the suspect's resistance or flight could have been

overcome or prevented;

• The amount of force used must have been proportional to the seriousness of the offence.

In Ex parte Minister of Safety and Security and Others: 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 (i.e. right to life) and the desired outcome (the purpose of arrest is to bring the accused before court), since it authorised the use of deadly force for any schedule 1 offence committed.

4) The fundamental principles decided on by the Constitutional Court and the Supreme Court of Appeal in

Walters and Govender 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:

• The purpose of arrest is to bring before court for trial persons suspected of having committed

offences.

• Arrest is not the only means of achieving this purpose, nor always the best.

•

•

Arrest may never be used to punish a suspect.

Where arrest is called for, force may be used only where it is necessary in order to carry out the

arrest.

• Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest

may be used.

• In deciding what degree of force is both reasonable and necessary, all the circumstances of the

offence the suspect is suspected of having committed must be considered; the force must be

proportional in all these circumstances must be taken into account, including the threat of violence

the suspect poses to the arrester or others, and the nature and circumstances.

•

•

Shooting a suspect solely in order to carry out an arrest is permitted in very limited only.

Such shooting is not usually 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.

• 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.

5) The revised section 49 (2) of the Act stipulates that:

'If any arrester 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 arrester 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 arrester 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 that

• The force is 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;

• There is a substantial risk that the suspect will cause imminent or future death or grievous bodily

harm if the arrest is delayed; or

• 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.’

6) The revised section 49 (2) no longer distinguishes between Schedule 1 and other offences.

Requirements for the use of force:

The following requirements must be met before an arrester may use force in order to affect the arrest:






(6) The suspect must be aware that an attempt is being made to arrest him or in some way be informed of the

intention and continue to flee or resist arrest.

• The arrester can’t take it for granted that arrestee knows somebody is attempting to arrest him -


(7) There must be no other reasonable means to affect the arrest.


• If there are several people in a car, you can’t shoot indiscriminately.

(9) The degree of force that may be used to affect the arrest must be reasonably necessary and proportional in

all the circumstances.

In this case: in order for X to have acted lawfully and to claim the protection afforded by section 49 (2), X must meet the conditions of section 49 (2):

•

•

•

•

•

X must attempt to arrest suspect P;

P must resist, flee or both;

P must realise that an attempt to arrest him is made by X;

It must be impossible to arrest P without using force;

X may use force only if it is reasonable and proportional in the particular set of circumstances.

Conclusion:

Based on the above provisions of the CPA P was fleeing and resisting arrest for allegedly committing a crime. X will not be afforded the protection of the amended section 49 because the force used was not reasonable and necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing.

Write notes on the summons and the indictment as methods of securing the attendance of an accused person at his or her trial. (7)

The main differences between a summons and an indictment are as follows:

(i) The summons may contain an admission of guilt fine, which is not the case with an indictment.

(ii) The summons contains only personal particulars and the charge, but apart from the personal particulars and the offence, the indictment must also contain a summary of the substantial facts of the case and a list of the names and addresses of state witnesses.

(iii) Service of a summons must take place at least 14 days (Sundays and public holidays excluded) before the date fixed for the trial, whereas an indictment must be served on the accused at least 10 days before the trial.

(iv) A summons is served by the police or other authorised persons, whereas an indictment may also be handed to the accused by the magistrate who commits him/her for trial in the High Court.

Write notes on the duty of a private individual to arrest someone.(5)

General Rule: There is no obligation on private individuals to arrest someone

The exception:

Section 47 of CPA - Private persons to assist in arrest when called upon

(1) Every male inhabitant of the Republic of an age not below sixteen and not exceeding sixty years shall, when called upon by any police official to do so, assist such police official -

(a) in arresting any person;

(b) in detaining any person so arrested.

(2) Any person who, without sufficient cause, fails to assist a police official as provided in subsection (1), shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.

Unit 8 - interrogation, interception and establishing the bodily features of a person

Write notes on the powers of the police to enter premises in order to interrogate persons.

Entry to premises to interrogate persons

It occasionally happens that the person the police wish to question is on private premises and the person in charge of the premises refuses to allow them to enter.

Section 26 of CPA - Entering of premises for purposes of obtaining evidence

Where a police official in the investigation of an offence or alleged offence reasonably suspects that a person who may furnish information with reference to any such offence is on any premises, such police official may without warrant enter such premises for the purpose of interrogating such person and obtaining a statement from him: Provided that such police official shall not enter any private dwelling without the consent of the occupier thereof.

The reason for the proviso that police may not enter without consent is to prevent police from entering without having requested permission amounting to a serious infringement of the dwellers’ privacy. However, this once again presents the possibility that the occupier may refuse the police entry, which may hamper investigations.

Section 27(1) of CPA - Resistance against entry or search

A police official who may lawfully search any person or any premises or who may enter any premises under Section 26, may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises: Provided that such police official shall first audibly demand admission to the premises and notify the purpose for which he seeks to enter such premises.

(8)

(1) X, a police officer, is on duty. He receives a telephone call from a woman at a private dwelling who complains that a friend who is sharing her home is damaging her property. X drives to the address given by the woman. When he knocks on the front door of the house he hears somebody crying inside. A man's voice asks who is at the door. X explains who he is, that he has received the complaint in question and that he wishes to enter the dwelling to speak to the woman. He also requests permission to enter for the stated purpose.

Without offering any explanation for his behaviour the man in the house refuses entry to X and orders him to leave the premises at once. What can X do? Discuss. (6 marks) s26 - Entering of premises for purposes of obtaining evidence


27 Resistance against entry or search

(1) A police official who may lawfully search any person or any premises or who may enter any premises under section 26, may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises:

Provided that such police official shall first audibly demand admission to the premises and notify the purpose for which he seeks to enter such premises.

(2) The proviso to subsection (1) shall not apply where the police official concerned is on reasonable grounds of the opinion that any article which is the subject of the search may be destroyed or disposed of if the provisions of the said proviso are first complied with.

In terms of s26 X may enter the private dwelling without a warrant and as per s27 he did audibly demand permission and stated his purpose, and even though permission has not been granted X may enter with reasonable force as may be necessary in terms of s27 as he had reasonable grounds to believe that there is a woman on the premises and that she is in possession of information about the alleged damage to property.

X, a police officer, is on duty. He drives to a certain address in response to a radio message. On his arrival he notices a body lying on the sidewalk. By this time a number of people have begun to gather at the scene. As X examines the corpse, he overhears a bystander (Y) telling another person that, shortly after hearing a scream coming from the direction of the scene, he (Y) had seen someone running from the scene. X asks Y if he is prepared to give a statement relating the facts as communicated to the other bystander. Y refuses, saying that he has no time to ``waste'' in court. What can X do? Discuss fully. (8 marks) s41 - Name and address of certain persons and power of arrest by peace officer without warrant

(1) A peace officer may call upon any person-


(b) who is reasonably suspected of having committed or of having attempted to commit an offence;

(c) who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of any offence, to furnish such peace officer with his full name and address, and if such person fails to furnish his full name and address, the peace officer may forthwith and without warrant arrest him, or, if such person furnishes to the peace officer with a name or address which the peace officer reasonably suspects to be false, the peace officer may arrest him without warrant and detain him for a period not exceeding twelve hours until such name or address has been verified.

A summons can be used in terms of section 205 to bring a person before a court. The person can obviously decide to cooperate with the state voluntarily, and if she answers questions to the satisfaction of the prosecutor or the DPP, she no longer has to appear before the court. it can be said that X has reason to believe that Y would be able to give material evidence concerning the commission of a crime. As he overhears a Y telling another person that he witnessed events that may be related to the crime. Accordingly X may lawfully summon Y to that end despite Y’s refusal to do so.

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 when 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.

(i) Discuss the powers of Captain B under sections 26 and 27 of the Criminal Procedure Act when he arrives at

Y's home. (6)

(ii) 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 any statement. Captain B is convinced that Y has information that could assist him in solving the case. What steps may Captain B take to obtain information from Y? Discuss in detail. (7)

(i) s26 - Entering of premises for purposes of obtaining evidence


27 Resistance against entry or search

(1) A police official who may lawfully search any person or any premises or who may enter any premises under section 26, may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises:


(2) The proviso to subsection (1) shall not apply where the police official concerned is on reasonable grounds of the opinion that any article which is the subject of the search may be destroyed or disposed of if the provisions of the said proviso are first complied with.

(ii) s41 - Name and address of certain persons and power of arrest by peace officer without warrant

(1) A peace officer may call upon any person-


(b) who is reasonably suspected of having committed or of having attempted to commit an offence;

(c) who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of any offence, to furnish such peace officer with his full name and address, and if such person fails to furnish his full name and address, the peace officer may forthwith and without warrant arrest him, or, if such person furnishes to the peace officer with a name or address which the peace officer reasonably suspects to be false, the peace officer may arrest him without warrant and detain him for a period not exceeding twelve hours until such name or address has been verified.

A summons can be used in terms of section 205 to bring a person before a court. The person can obviously decide to cooperate with the state voluntarily, and if he answers questions to the satisfaction of the prosecutor or the DPP, he no longer has to appear before the court.

As B is convinced that Y has information that could assist him in solving the case. B may arrest Y without warrant for refusal to cooperate. Further B may issue a summons in terms of section 205 to for Y to appear in court and divulge information relating to the case.

Discuss the general powers of the police with regard to the interrogation of any person, irrespective of whether such a person is a potential witness or a person suspected of having committed a crime. (7) person as an accused/suspect

An accused has the right to silence, but not a right not to be questioned. The police may interrogate a person within reasonable limits once they have lawfully obtained access to premises. An accused is, however, not obliged to answer questions. No adverse inference may be drawn from his/her silence.

A person as a witness

In terms of section 26, a police official may enter premises without a warrant for purposes of interrogating a person and obtaining a statement from him/her. There is, however, a proviso that a police official may not enter any private dwelling without the consent of the occupier thereof. In terms of section 27(1), the police official may use force as may be reasonably necessary to overcome any resistance.

A peace officer may demand the name and address of a person

A peace officer is given the power to call upon any person whom he/she has the power to arrest or reasonably suspects of having committed any offence or having attempted to commit any offence or be able to give evidence in regard to the commission or suspected commission of any offence, to furnish his/her full name and address. If such person refuses to furnish his/her full name and address, the peace officer may forthwith arrest him/her or if he/she reasonably suspects that a false name or address has been given to him/her and detain him/her for a period not exceeding 12 hours until the name and address so furnished have been verified.

The refusal by a person to furnish his/her name and address and the furnishing of an incorrect or false address, constitute offences and are punishable by a fine or imprisonment without the option of a fine for a period of three months.

Unit 9 - SEARCH AND SEIZURE

X, a police officer, is on duty. He notices two persons standing on a street corner and glancing nervously about them all the time. X notices one of the persons passing an amount of money to the other. The other person counts the money, takes out a small package from his pocket and hands it to the first person. The latter opens the package, places the contents on a piece of glass, sniffs them and nods to the other person. X walks over to them. On seeing him they start running away with X in pursuit. They run into a block of flats, enter a specific flat, close the door and lock it. What can X do? Discuss in detail. (10 marks)

Section 20 of CPA - State may seize certain articles

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.

The only exception relates to documents which are privileged and of which the holder of the privilege has not yet relinquished his privilege. Prinsloo v Newman

The general rule is that a search should only be conducted on the strength of a search warrant. In addition, although justices of the peace (including police officers from the rank of captain upwards, but not constables, sergeants or inspectors) are competent to authorise search warrants, it is preferable that such officers only grant authorisation in the absence of a presiding officer, and under circumstances where the search and seizure have to be done quickly. Search warrants must clearly describe the objects to be seized.

In Thint and Another v The National Director of Public Prosecutions 2008 (2) SACR 421 (CC), the court reiterated the long-established principle that the person applying for the warrant must disclose all the material facts to the judicial officer to whom the application is made.

In Mkhize 1999 (In this appeal case the matter at issue was whether a pistol found in the locker of the accused after the police had forcibly opened the locker without a warrant should be excluded as evidence that was obtained unlawfully.) The court held that that the provisions of the

Act relating to the obtaining of search warrants are there not for the purposes of ensuring the fairness of a trial of an accused person but to protect the ordinary law-abiding citizens of our land from an abuse of the formidable powers which the police necessarily have.

Searching without a warrant may only take place in narrowly circumscribed circumstances with the person's consent or where the police officer reasonably concludes that a search warrant will be issued on request, and that the purpose of the search would be defeated if a warrant had to be issued beforehand.

Section 22 of CPA - Circumstances in which article may be seized without search warrant

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 -

(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; or

(b) 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 cases where action is taken without a warrant, the actions of the person conducting the search may be reviewed by a court of law on the merits – LSD Ltd v Vachell

Section 25 of CPA - Power of police to enter premises in connection with State security or any offence

(3) A police official may without warrant act under subparagraphs (i), (ii) and (iii) of subsection (1) if he on reasonable grounds believes -

(a) that a warrant will be issued to him under paragraph (a) or (b) of subsection (1) if he applies for such warrant; and

(b) that the delay in obtaining such warrant would defeat the object thereof.

Belief must be objectively justified. Mayekiso en Andere

Section 23(1)(a) of CPA -

(1) On the arrest of any person, the person making the arrest may -

(a) if he is a peace officer, search the person arrested and seize any article referred to in section 20 which is found in the possession of or in the custody or under the control of the person arrested.

Section 27of CPA - Resistance against entry or search

(1) A police official who may lawfully search any person or any premises or who may enter any premises under

Section 26, may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises:


(2) The proviso to subsection (1) shall not apply where the police official concerned is on reasonable grounds of the opinion that any article which is the subject of the search may be destroyed or disposed of if the provisions of the said proviso are first complied with.(no-knock clause)

Section 29 of CPA - 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.

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 bearing in mind s29- the requirements of propriety. In terms of s25(3) X did not first have to apply for the warrant in this case as a delay in applying for the warrant may defeat the object thereof.

Write notes on the articles that may be subject to seizure by the police. (4) *

Section 20 of CPA - State may seize certain articles

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.

The only exception relates to documents which are privileged and of which the holder of the privilege has not yet relinquished his privilege. Prinsloo v Newman

What are the principles relating to the use of force by the police when entering the premises? (5) *

This can be affected with or without a search warrant.

Section 22 provides that a police official may without a search warrant search premises for the purpose of seizing any article referred to in section 20 if the person concerned consents to such search for and the seizure

of the article in question; or if the police official believes on reasonable grounds that a search warrant will be issued if he/she applies for such warrant and that the delay in obtaining such warrant would defeat the object of the search.

He/she may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises (s 27). The proviso is that such police official must first audibly demand admission to the premises and notify the purpose for which he/she seeks to enter such premises, except where the police official is, on reasonable grounds, of the opinion that any article which is the subject of the search may be destroyed or disposed of if the provisions of the proviso are first complied with.

In terms of section 48, a peace officer who is authorised by law to arrest another in respect of any offence and who knows or reasonably suspects such other person to be on any premises, may, if he/she first audibly demands entry into such premises and states the purpose for which he/she seeks entry and fails to gain entry, break open and enter and search such premises for the purpose of effecting the arrest.

Study unit 10 - BAIL AND OTHER FORMS OF RELEASE

2.a. X is arrested on a charge of murder and is held in custody in the police cells for questioning. X directs a request to the police, the DPP, and the court to be released on bail. Discuss the powers of these three parties to grant bail in this matter.(10)

Police Bail

- Refusal /granting of bail essentially judicial decision: Remgobin.

- Limited circumstances may be granted by the police s 59.

- ‘Police bail’: purpose not to oust judicial decision but to ensure pre-trial release i.r.o trivial offences secured as soon as possible. (Before the first appearance in a lower court).

- If cant be granted / refused: accused has every right to apply to lower court for bail at first compulsory appearance.

Limitations:

- Only cash – no sureties.

- Only before first court appearance in lower court. (s 59 (1)(a).

- Above imitation is essential to ensure courts remain in direct control over release on bail once case if on the roll.

- Special conditions as provided in s 62 cannot be added by the police bail. (appearance in court on specific date & time).

- On prosecutors application - court may add special conditions to police bail.

- Shall remain in force (if in force at time of 1st appearance) after such appearance in same manner as bail granted by court.

- Police bail NOT for: Parts II & III of Schedule 2. (Serious crimes).

The discretion:

- Police bail should not be refused in the absence of substantial cause for refusal: MacDonald v Kumalo.

- Action for damages for refusal on malicious grounds / where the authorised official had refused to exercise discretion: Shaw v Collins

.

Bail granted by prosecution

s 59 A (1): DPP / P authorised thereto in writing by DPP – may i.r.o Schedule 7 offences & in consultation with investigating officer – authorise release on bail. s 59 A (3): Effect: Person released from custody a) Upon payment | guarantee of determined amount at place of detention. b) Subject to reasonable conditions imposed by DPP or P, or c) the payment | guarantee to pay & the imposition of such conditions.

- ‘Prosecution bail’ – accused must appear on first court day at determined time. This bail only lasts until first court day → judicial intervention / approval then required. → s 59 A (5): Court may extend bail on same conditions or amend & add further conditions. | If court does not deem exercised of powers appropriate – consider bail application & will have jurisdiction to powers, functions & duties i.r.o bail proceedings of s 60.

- Regarded as bail granted by a court i.t.o. s 60.

- Bail proceedings must be recorded incl. conditions imposed.

- DPP may after consultation with Minister of Justice → issue directives

.

Bail applications in court

- Accused entitled to apply for release on bail at first court appearance → not entitled to bring application outside of court hours.

- Bail application where Schedule 6 offence must be considered by MC, however provision – DPP | P authorised by DPP may where deemed necessary for the administration of justice direct in writing the application must be considered by regional court.

- Any lower court may postpone bail proceedings / application to any date | court not exceeding 7 days if; a) insufficient info or evidence to each decision on bail; b) prosecutor informs matter is being referred to DPP for issuing written confirmation referred to in s 60

11(a). c) it appears necessary to provide State with reasonable opportunity to;

- procure material evidence that may be lost if bail granted;

- perform functions of section 37 d) it appears in the interest of justice to do so.

Discuss the cancellation of bail where an accused is about to abscond. (6)

- Any court (where charge is pending & accused is released on bail) upon information on oath that accused is about to evade justice / abscond in order to do so / or accused interferes, threatens, or attempts to – or defeats the ends of justice or poses a threat to the safety of the public, or a person or that it is in the public interest to do so → issue warrant for the arrest of the accused & make an order that the bail be cancelled and the accused committed to prison.

Bail may also be cancelled if the accused, after bail was granted indulged in further criminal conduct. Kyriacou

- Similar procedure if accused had not correctly disclosed previous convictions in the bail proceedings or where further evidence influences factors of bail (false info in bail proceedings).

Such a warrant may be issued by any magistrate on application of a peace officer where not practical to approach relevant court. Committal to prison will remain in force until conclusion of trial, unless court reinstates the bail. Decision subject to appeal. Casker

- Accused has an automatic right of appeal against withdrawal of his bail: Nqumashe.

X is arrested on a charge of high treason and is held in custody in the police cells for questioning. X addresses a request to be released on bail to the sergeant who is in charge of the cells. Discuss the legal principles involved.

Section 59 of CPA - Bail before first appearance of accused in lower court

(1) (a) 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.

Police bail is not possible in respect of offences referred to in Part II and III of Schedule 2 (ie treason, sedition, murder, rape, arson, kidnapping, robbery, theft, fraud and assault etc).

''Prosecution bail'' may be granted only in the case of Schedule 7 offences, which exclude grave offences such as murder and rape, but include serious offences such as public violence, robbery housebreaking, culpable

homicide, assault with the intention to commit serious bodily injury, and fraud or forgery where the amount involved is under R20 000

The crime of high treason, a schedule 2 offence is serious and is explicitly excluded by section 59,

Section 35(1)(f) of Constitution stipulates that everyone arrested for allegedly committing an offence, has the right to be released from detention, if the interests of justice permit, subject to reasonable conditions.

The discretion: An application for police bail should not be frustrated by an excessive amount and should not be refused unless there is substantial cause for such refusal. An action for damages will lie should police bail be refused on malicious grounds or where the police official simply refused to exercise his discretion - Shaw v Collins (1883) 2 SC 389.

Section 60(1)(a) provides that, subject to the provisions of section 50(6) and (7), an accused in detention is entitled to be released on bail at any stage before she is convicted for the offence in question, unless the court finds that it is in the interests of justice that she be kept in detention. The DPP can only lodge an appeal to a higher court (section 65A(1)(a)) against the decision of a lower court to release an accused on bail or against the imposition of a bail condition. An appeal against a higher court's decision to grant bail can also be lodged with the Supreme Court of Appeal-s65A(2)(a).

X and Y steal a packet of sweets from a supermarket. They are arrested at 18:00 on a

Wednesday afternoon. Both apply for bail in terms of section 59 of the Criminal

Procedure Act, but bail is refused. On the following Monday morning they appear in court for the first time. At their first appearance they apply to be released on bail. The court refuses to grant bail to X as his parents are not present in court and refuses bail to Y because (according to the prosecutor) Y does not have a fixed address.

Discuss the regularity or otherwise of the detention of X and Y, and the denial of bail to them. (8)

(1) Regarding the regularity or otherwise of the detention of X and Y, it needs to be mentioned that an arrestee has to be brought to a police station as soon as possible after his/her arrest and that he/she be detained by the police for a period not exceeding 48 hours.

(2) The custody envisaged by section 50 consists of two periods: the first is that period following the arrest but before the arrival at the police station, while the second is that period after he/she has been brought to the police station. It is the first period that is governed by the words as soon as possible.

(3) If an arrestee is not released because no charges are to be brought against him/her (eg where the police discover that he/she is indeed innocent), he/she may not be detained for longer than 48 hours unless he/she is brought before a lower court, which is called the first appearance.

(4)The 48 hour rule is considerably extended by Section 50(1)(d)(i) – (iii) the CPA, which provides that if the 48 hour period expires:

(a) on a day which is not a court day, or after 16h00 on a court day, then the 48 hour period is deemed to expire at 16h00 on the next court day (eg arrested Wednesday 18h00, expires Monday 16h00);

(b) on a court day before 16h00, then period expires at 16h00 on such court day;

(c) at a time when the arrestee is outside the court’s area of jurisdiction and is in transit to court, then period ends at 16h00 on next court day after he is brought into court’s area of jurisdiction;

(d) at a time when arrestee cannot be brought to court because of his physical illness or other physical condition, court can order that he be detained (eg at hospital) for as long as is necessary for him to recuperate so as to prevent abuse.

Court day is a day on which the court is sitting (ie Monday to Friday).

If the 48 hour period expires on a day when the periodical court is not in session, an arrested person should be brought before a district court which has jurisdiction over the area of the periodical court.

If the accused is held for more than 48 hours, his detention is unlawful and his escape will then not be unlawful. The police may release certain arrestees before the 48 hour period lapses.

Since the 48-hour period in our question only expires on Friday at 18:00, namely after 16:00, it is deemed to expire only on Monday 16:00. Their detention is therefore lawful.

(5) The discretion for an application for police bail should not be frustrated by an excessive amount and should not be refused unless there is substantial cause for such refusal. An action for damages will lie should police bail be refused on malicious grounds or where the police official simply refused to exercise his discretion

- Shaw v Collins (1883) 2 SC 389.

Section 59 (1) (a) 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.

In the question, the police will be entitled to grant bail since the offence is theft of a packet of sweets the value of which is surely less than R200-00. (see Schedule 2, parts II and III.)

If bail has been granted by the police (of or above the rank of non-commissioned officer), that bail shall remain in force at and after the first appearance of the accused in a lower court in the same manner as bail granted by a court.

(6) If bail was not granted by the police, the accused should at his/her first appearance in court be informed of his/her right to apply for bail. This would otherwise constitute an irregularity.

(7) In general, 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 section 35(1)(f) of the

Constitution.

(8) In the absence of a conviction by a court of law, an accused is also constitutionally presumed to be innocent section 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.

(9) 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 section 60(4) of the Act is established.

(10) The magistrate has discretion to grant bail, which discretion must be judicially exercised.

(11) The amount of bail must not be excessive and the bail conditions should not be unfair.

(12) The magistrate may refuse bail if he/she is of the opinion that the accused may pose a threat to the security of the state; will disrupt public order; will abscond; will interfere with witnesses; and disrupt the administration of justice.

(13) The fact that Y does not have a fixed address is not mentioned specifically in the Act, but in considering a bail application, the court may take into account any factor which in the opinion of the court should be taken into account.

Discuss the granting of bail by the police before the first court appearance of an accused.

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.

10.2.1. Procedure concerning police bail

Section 59 of CPA - Bail before first appearance of accused in lower court

(1) (a) 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.

(b) The police official referred to in paragraph (a) shall, at the time of releasing the accused on bail, complete and hand to the accused a recognizance on which a receipt shall be given for the sum of money deposited as bail and on which the offence in respect of which the bail is granted and the place, date and time of the

trial of the accused are entered.

(c) The said police official shall forthwith forward a duplicate original of such recognizance to the clerk of the court which has jurisdiction.

The police must give the accused a reasonable opportunity to communicate with his legal representative, family or friends to obtain the bail amount.

10.2.2. Police bail: the limitations

Only cash payments can be received and no sureties can be accepted. Release on police bail can only take place before the accused’s first appearance in a lower court.

Discretionary special conditions (conditions other than essential bail conditions), cannot be added by the police when releasing an accused on bail. However, a court may add special conditions to police bail.

Police bail is not possible in respect of offences referred to in Part II and III of Schedule 2 (ie treason, sedition, murder, rape, arson, kidnapping, robbery, theft, fraud and assault etc).

10.2.3. The discretion

An application for police bail should not be frustrated by an excessive amount and should not be refused unless there is substantial cause for such refusal. An action for damages will lie should police bail be refused on malicious grounds or where the police official simply refused to exercise his discretion - Shaw v Collins (1883) 2 SC 389.

Write notes on the kind of bail conditions that may be imposed on an accused person by a court.(10)

Section 60(12) of CPA - Bail application of accused in court

The court may make the release of an accused on bail subject to conditions which, in the court's opinion, are in the interests of justice.

These conditions may be referred to as discretionary special conditions.

Section 62 - Court may add further conditions of bail

Any court before which a charge is pending in respect of which bail has been granted, may at any stage, whether the bail was granted by that court or any other court, on application by the prosecutor, add any further condition of bail -

(a) with regard to the reporting in person by the accused at any specified time and place to any specified person or authority;

(b) with regard to any place to which the accused is forbidden to go;

(c) with regard to the prohibition of or control over communication by the accused with witnesses for the prosecution;

(d) with regard to the place at which any document may be served on him under this Act;

(e) which, in the opinion of the court, will ensure that the proper administration of justice is not placed in jeopardy by the release of the accused;

(f) which provides that the accused shall be placed under the supervision of a probation officer or a correctional official.

Practical example of such a condition is that the accused must report to a specified police station twice a day, hand over his passport to the police or that he may not leave the magisterial district without informing the police. Bail conditions must always be practically feasible and should be neither vague nor ambiguous nor ultra vires nor contra bonos mores. The prosecutor or accused can also apply for the increase or decrease of the amount of bail or amend any condition imposed .

Unit 11 – Pre-Trail Investigations

Discuss plea in the magistrate’s court on a charge justiciable in the regional court.(6)

When the accused appears in the Magistrates’ Court and the alleged offence may be tried by a Regional Court but not by a Magistrates’ 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 Magistrates’ Court, the

prosecutor may put the relevant charge and any other charge to the accused, who shall be required by the

Magistrate to plead to it – Section 112A of CPA.

If the accused pleads not guilty, the Magistrate may question him in terms of Section 115 and then commit him for a summary trial to the Regional Court. If the accused pleads guilty, he is questioned in terms of Section

112 and if the Magistrate is satisfied that the accused is guilty, will referred him to the Regional Court for sentencing. Should the Magistrate not be satisfied, he will enter a plea of not guilty and submit the accused for summary trial to a Regional Court, where he will be asked to plead afresh at the subsequent trial, irrespective of whether he pleaded in the Magistrates’ Court.

Discuss the plea in the magistrate’s court on a charge justiciable in the High Court. (10)

This procedure is sometimes referred to as the “curtailed preparatory examination” or the “mini preparatory examination”. The purpose of this procedure is to ease the workload of the High Court and of the DPP. It is a sifting process whereby a preparatory examination or superior court trial may be eliminated in certain cases where, at an early stage if the accused co-operates, the charge proves to be of a less serious than was originally thought.

When the accused appears in a Magistrates’ Court and the alleged offence may be tried by a superior court only or merits punishment is in excess of the jurisdiction of the Magistrates’ Court, the DPP may instruct the prosecutor to put the charges to the accused in the Magistrates’ Court.

The Magistrate does not determine the charge upon which the accused must stand trial and the proceedings only serve as an aid to the DPP in determining the charge.

The Magistrate directs the accused to plead to the charge and if he pleads guilty and the

Magistrate is satisfied that he is guilty after questioning him in terms of section 112, he stops the proceedings pending a decision by the DPP. The DPP may decide to arraign the accused for sentence before the superior court of any other court having jurisdiction. If the Magistrate is not satisfied with the plea of guilty, he must record in what respect he is not satisfied and enter a plea of not guilty. The magistrate must advise the accused of the decision of the DPP and if the DPP's decision is that the accused is arraigned for sentence –

- in the Magistrates’ Court concerned, the court must dispose of the case and the proceedings continue as though no interruption occurred;

- in a Regional Court of High Court, the Magistrate must adjourn the case for sentence by such court;

If the accused pleads not guilty, Section 122 provides that the Magistrate must ask the accused whether he wants to make a statement indicating the basis of his defence. If he does not make a statement or it is not clear what he admits or denies, the Magistrate may question him. The court may inquire whether any admissions may be recorded as such.

When Section 115 has been complied with, the Magistrate must stop the proceedings and adjourn the case pending the decision of the DPP. The latter may:

- arraign the accused on any charge at a summary trial before a superior court or any other court having jurisdiction;

- institute a preparatory examination against the accused.

The DPP advised the Magistrates’ Court of his decision and the court notifies the accused accordingly. The accused must be asked to plead afresh at the subsequent trial.

X is charged with assault in the magistrate's court. In the course of his cross- questioning, X admits 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 realises that he should have charged X with attempted murder. How can he correct the error procedurally? Explain the procedures.

(a) The charge cannot be amended to one of attempted murder because that would prejudice the interests of the accused

(b) The accused has the right to be found either guilty or not guilty on the charge of assault

(c) 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

(d) 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. In this regard 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.

(e) The prosecutor can approach the DPP and request that the trial be converted to a preparatory examination under section 123(b). This should be done before conviction and not before sentencing

In Tieties the SPA held that notwithstanding the wording of s123(b) it was the intention of the legislator to provide for a conversion of a trial into a preparatory examination only before conviction and that any other interpretation would be a departure of existing principles of law. Should an accused’s persons trial be converted into a preparatory examination in terms of s123(b) after conviction the accused will be entitled to plead autrefois convict if he is required to plead on the same charges at a trial subsequent to the preparatory examination .

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.

Give a definition of a preparatory examination and discuss the circumstances under which such an examination may be held. (10)

. What is a preparatory examination:

- Criminal proceeding – not a trial as final decision rests with DPP.

- Examination held before a magistrate to determine whether evidence presented justifies a trial.

- Accused not on trial – not requested to plead at commencement of proceedings but at conclusion after all evidence to the charge has been led.

- Magistrate asks accused to plead to charge – does not make finding of guilty / not.

- If trial instituted after p/e becomes separate proceeding as p/e terminated when committed for trial.

- Purpose to enable DPP to determine whether prosecution has case & if should be prosecuted by SC or another court.

- Is DPP’s discretion to arraign accused for sentence where he has pleaded guilty / for trial if pleaded not guilty.

- If magistrate discharges accused and end of p/e – does not have effect of acquittal. If magistrate informs accused that DPP decided not to prosecute → he may if charge with same crime again – plead acquitted

(autrefois acquit).

When a preparatory examination is held:

- Previously had to precede every superior court trial → under s 152 DPP given discretion to decide whether summary trial held w/o preceding preparatory examination only if of opinion that there was any danger of interference with or intimidation of witnesses or if in the interests of public safety.

- s 123 regulates current position: if DPP of opinion that more effective in admin of justice, he may decide to order p/e before accused is tried in SC or other court having jurisdiction. He may take this decision at the following stages;

1) Following s 119 procedure in which accused pleaded guilty if DPP in doubt regarding the accused’s guilt or facts do not appear from record;

2) Following s 119 procedure where accused pleaded not guilty, s 122 and 123 or;

3) At any stage before conviction during trial in MC / RC → trial will be converted into p/e.

- DPP will institute p/e if of the opinion –

1) crime too serious to be tried in lower court – may refer case to HC on even more serious charge.

2) that there is a fatal deficiency in State’s case after closure of State’s case & at end of trial and it might be remedied by converting into p/e.

- The records form part of p/e. The p/e proceeds on charge to which accused has pleaded, however evidence may be led which related to further crimes other than the one to which he pleaded.

- Accused pleads to charges after all State’s evidence led – he may object or plead mental illness.

Question 1

(a) Criminal procedural rules can sometimes operate separately from common law and constitutional law as a result of the fact that it is identifiable as “adjective law”.

(b) The term “criminal justice” only denotes the principles of criminal procedure and substantive criminal law.

(c) Due process of law demands that there have to be practical limitations on state power in the detection, investigation, prosecution and punishment of crime.

(d) Criminal procedure deals with the detection, investigation and prosecution of criminals.

(1) Only statement (b) is correct.

(2) Only statements (b) and (c) are correct.

(3) Only statement (c) is correct.

(4) All the statements are correct.

(5) All the statements are incorrect.

Question 2

(a) A mandamus is a negative order ordering a person to refrain from doing something.

(b) The term “Superior Court” includes the Supreme Court of Appeal.

(c) A district court may never try serious offences against the State.

(d) In terms of the four kilometres rule, a court is empowered to apply statutory law that is operative in its own area if the act or omission concerned took place in another province and a similar statutory provision is applicable in the other province.





(5) Only statement (a) is correct.

Question 3

(a) Where an accused pleads not guilty in a lower court and his defence is based on the alleged invalidity of a provincial ordinance or a proclamation issued by the President, the accused has to be committed for summary trial before a superior court that has jurisdiction.

(b) If a victim has successfully recovered his or her losses in terms of a civil action, a criminal court can in the event of a conviction also render a compensatory order to the victim.

(c) The prosecuting authority’s discretion to prosecute falls beyond the jurisdiction of a court of law and the latter can never intervene regardless of whether or not such discretion is improperly exercised.

(d) A prosecutor who is authorised thereto, orally or in writing, by the National Director of

Public Prosecutions (NDPP) may negotiate and enter into a plea and sentence agreement as provided for in S 105A of the Criminal Procedure Act 51 of 1977.




(4) Only statements (c) and (d) are correct.


Question 4

(a) The fact that an individual is under no general duty to report a crime entails that he or she may, in any given circumstance, lawfully refuse to co-operate once it is established that he or she could be a potential state witness.

(b) The defence has no right to determine the sequence of state witnesses who give evidence and the prosecution should accordingly not have a final right to determine the sequence of the accused who wish to testify as defence witnesses.

(c) In principle, South Africa follows a system of compulsory prosecution.

(d) The triviality of an offence does not constitute sufficient ground for the refusal to prosecute.


(2) All the statements are false.



(5) Only statements (a) and (d) are correct.

Question 5

(a) The prosecuting authority may withdraw a charge before the accused has pleaded to such a charge, resulting in the accused being acquitted.

(b) If a prosecutor indicates to the court that on the basis of the evidence presented in court he or she is unable to support a conviction, the prosecution will be stopped.

(c) The right to institute a prosecution for child stealing lapses after the expiration of

20 years.

(d) Prosecutors have to at all times act in accordance with the wishes of the community in order to secure a conviction.




(4) All of the statements are correct.

(5) All of the statements are incorrect.

Question 1

Only statements (a) and (d) are correct and the correct option is option (4).

Question 2

All of the statements are correct. The correct option is (1).

Question 3

Only statements (a) and (c) are correct. The correct option is (4).

Question 4

Only statement (b) is incorrect. The correct option is (1).

Question 5

Only statement (a) is incorrect. The correct option is (3).

Question 1

(a) It is irregular for a private practitioner who was given a watching brief by an interested party to assist the prosecution on an informal basis.

(b) Private prosecutions under statutory right remain under the control of the Director of

Public Prosecutions (DPP) and the National Director of Public Prosecutions (NDPP).

(c) Two or more persons may prosecute in the same charge if both have been injured by the same offence.

(d) An accused is not bound by what is done by his or her legal representative in the execution of his or her mandate during the course of a trial.


(2) Only statement (d) is correct.




Question 2

(a) A trial can never be conducted in the absence of an accused.

(b) The procedure in terms of S 57 of the Criminal Procedure Act can be used for statutory and for common law offences.

(c) In appropriate circumstances an unlawful search, seizure or arrest can constitute an offence.

(d) If a person who has been summoned fails to appear at the place on the date and at the time specified, he or she is guilty of an offence and is liable to the punishment of a fine or imprisonment for a period not exceeding six months.






Question 3

(a) A bad motive for an arrest will make an arrest unlawful.

(b) A telegraphic or similar written or printed communication from any magistrate, justice of the peace or peace officer which states that a warrant has been issued for the arrest of a person will not be sufficient grounds for a peace officer to arrest and detain the said person.

(c) If a person is unlawfully arrested, his or her detention after the arrest will also be unlawful.

(d) The act of shooting a suspect solely to carry out an arrest can sometimes be lawful.

(1) Only statements (a) and (b) are correct.





Question 4

(a) A State can never be obliged to extradite a criminal.

(b) It has been held that the decision to issue a search warrant may be set aside only on administrative grounds.

(c) Even though a person who is effecting an arrest is not a peace officer, he or she may still search the arrested person.

(d) The amount determined for bail may not have a punitive notion.


(2) Only statements (b) and (d) are correct.




Question 5

(a) Release on police bail can only take place before an accused’s first appearance in a lower court.

(b) The High Court has the power to grant bail as a result of its common-law power to control its decisions.

(c) A preparatory examination is a criminal proceeding and amounts to a trial.

(d) If an accused is discharged after a preparatory examination, the accused is effectively acquitted.






Question 1

Only statements (b) and (d) are correct. The correct option is (4).

Question 2

Only statement (c) is incorrect. The correct option is (4).

Question 3

Only statement (b) and (c) are correct. The correct option is (3).

Note that Question 3(d) was amended on myUnisa.

Question 4

Only statements (a), (b) and (d) are correct. The correct option is (3).

Question 5

Only statements (a) and (b) are correct. The correct option is (3).

Question 2.1

(a) A magistrate’s court is competent to pronounce on the validity of all provincial ordinances.

(b) A regional court is competent to impose a sentence of a fine not exceeding R30 000.

(c) When an accused is illegally abducted from a foreign state by the Scorpions (a division of the South African national prosecuting authority) and handed over to the South

African Police, the High Court before which such abducted person is arraigned will have jurisdiction to try him or her.

(d) District courts are not competent to impose a sentence of 13 months’ imprisonment.

(1) None of the statements is correct.





Question 2.2

(a) At the seat of each High Court of the Republic, the President may appoint a national director of public prosecutions.

(b) The prosecution is and can be described as dominus litis at all times during the duration of the trial of an accused person.

(c) Individuals are under no general legal duty to report crimes to the authorities.

(d) Although South Africa does not follow a system of compulsory prosecution, the prosecution is obliged to prosecute where a prima facie case exists.


(2) Only statements (b), (c) and (d) are correct.

(3) Only statements (a) and (c) are correct.



Question 2.3

(a) In terms of Section 49(2) of the Criminal Procedure Act, the term “deadly force” refers only to the killing of a person.

(b) At the conclusion of a criminal trial, the presiding judicial officer has to make an order that the goods or articles which were seized in terms of Section 20 of the Criminal

Procedure Act shall be returned to the person from whom they were seized.

(c) If evidence is obtained by the police in a manner that violates the constitutional right to privacy of the owner of a private dwelling and when the admission of that evidence is excluded during a criminal trial, it is a formal law consequence of that unlawful action by the police.

(d) When a person who is lawfully in charge of a premises lawfully suspects that in contravention to the Abuse of Dependence-producing Substances and Rehabilitation

Centre Act 41 of 1971 somebody is in the possession of dagga on such premises, he or she may at any time enter such premises in all given circumstances and search any person thereon or therein.


(2) Only statements (a), (c) and (d) are correct.

(3) Only statements (a) and (c) are correct.


(5) All the statements are correct

Question 2.4

(a) Suspects and accused persons have the right to remain silent and the right not to be questioned.

(b) A person’s handwriting cannot be described as a bodily feature.

(c) An admission of guilt by payment of a fine without appearance in court does not amount to a previous conviction for the purposes of all offences.

(d) The right to legal representation includes the right to confidentiality during consultation with the legal practitioner.

(1) All the statements are false.

(2) All the statements are true.

(3) Only statements (a), (b) and (d) are correct.

(4) Only statements (b), (c) and (d) are correct.

(5) Only statements (b) and (d) are correct

(8

Question 2.1

All of the statements are incorrect. The correct option is (1).

Question 2.2

(b) Statement (b) is incorrect. See page 62 of the Handbook. Please note that Courts still exercise a measure of control in respect of decisions taken by the prosecution.

(d) Statement (d) is incorrect. See page 62 of the Handbook. In some cases there will be compelling reasons for refusal to prosecute regardless of the existence of a prima facie case for example the triviality of an offence.

Only statement (c) is correct. The correct option is (4).

Question 2.3

(d) Statement (d) is incorrect. See page 134-135 of the Handbook. In terms of section 24 such person may enter the premises to conduct a search only if a police official is not readily available.

Only statement (c) is correct. The correct option is (4).

Question 2.4

Only statements (b) and (d) are correct. The correct option is (5).

criminal proc exam question and answer

.

Bail granted by prosecution

.

Bail applications in court

Related documents

Products

Support

criminal proc exam question and answer

.

Bail granted by prosecution

.

Bail applications in court

Related documents

Add this document to collection(s)

Add this document to saved

Suggest us how to improve StudyLib