Johan Smit

28407970

IURI 271

Assignment 1

31/03/2021

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1.1 The investigation and prosecution of crime in South Africa is regulated by,
among other, the Criminal Procedure Act 51 of 1977, however these rules and
regulations may not operate in isolation, and due regard should be given to the
common-law and Constitutional principles.

1.2 Criminal matter – since assault is regarded as a criminal offence. In regard to

her not wearing a mask which, according to the Disaster Management Act
regulation 47 (10), is also considered to be a criminal offence.

However, if constable Walker had suffered punitive harm as a result of the

assault, this may give way to civil liability on the defendant's part and Constable
Walker may institute a civil action against Maxi to claim damages.

1.3 No, since the state prosecution will act on his behalf by instituting and
conducting the proceedings as a formal party against the defendant (Maxi).

1.4 In deciding whether or not to institute criminal proceedings against an accused,

the Prosecutor considers evidence in the docket from the Investigating Officer
and then assesses whether there is sufficient and admissible evidence to
provide a reasonable prospect of a successful prosecution. This "test" is often
referred to as the test of reasonable prospect.

1.5 Yes, but if the accused challenges the jurisdiction (objects thereto timeously),
he will be heard in the regional court of Matlosana as they have the territorial
jurisdiction – as per s 110(1) of the CPA.

1.6 Offence 1 (failure in regard to mask mandate): Fine limited to R1500 &
imprisonment not exceeding 6 months.

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 Offence 2 (assault of the officer): Fine limited to R100 000 & imprisonment not
exceeding 3 years.

1.7 WITHDRAWAL [Sec. 6(a) CPA]

- The prosecuting authority may withdraw the charge before the accused has
pleaded to said charge, however, this does not directly result in an acquittal
and the accused may still be tried anew on the same / similar charges if for
example new evidence is discovered.

- The prosecutor may withdraw the charge without the consent of the DPP
(since the DPP may pursue new charges if dissatisfied with the prosecutor's
original withdrawal).

- Accused not entitled to acquittal - can be charged of the same offence

again. (Thus, cannot use defence of previous acquittal).

STOPPING [Sec. 6(b) CPA]

- The DPP may at any time after the accused's plea, but before the accused's
conviction, stop the prosecution in terms of the charge/s. If this avenue is
followed, the accused is automatically entitled to an acquittal.

- For the public prosecutor to stop a prosecution, the consent of the DPP is
required (or any other person authorised to do so by the DPP).

- In terms of any subsequent prosecution in respect of the same facts, the

accused is entitled to acquittal and can plea autrefois acquit (defence of
previous acquittal).

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QUESTION 2

This separation between officials who investigate crime and those who decide to
prosecute and actually do prosecute crime is an important one. It promotes
objectivity and provides the criminal justice system with a process in terms of which
the results of a police investigation can (to some extent) be evaluated independently
before the grave step of instituting a prosecution is taken.

Even though a prima facie case exists, which in casu, would be the case since the
allegations made against Maxi, as supported by statements in the docket are of such
a nature that if proved in a court of law by the prosecution on the basis of admissible
evidence, the court would invariably convict Maxi.

According to Snyman, occasionally there might be good grounds for refusing to

prosecute even though such a prima facie case exists – grounds which include the
triviality of the offence – which in casu, is the prosecutor's argument for instituting a
nolle prosequi.

It thus becomes necessary for a complainant to consider alternative methods in

pursuit of justice.

The possibility of Walker instituting a private prosecution in respect of

both charges.

In any case in which a prosecutor has declined to prosecute for an alleged offence,
any private person who proves that he has substantial interest in the issue of the
trial arising out of some form of injury which he personally and individually suffered
as a consequence of the commission of the offence, as per s 7(1)(a) of the CPA, may
institute a private prosecution.

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He will not be able to institute a private prosecution against Maxi for her failing to
wear the mask, since although the failure to wear a mask constitutes a violation of
the Disaster management Act: Regulations relating to COVID-19 and amounts to a
criminal offence, it in no way directly resulted in constable Walker suffering personal
harm. Further, as was held in Mullins and Meyer v Pearlman, "the mere apprehension
of injury which may possibly cause damage in the future is insufficient."

As was stated in Mullins and Meyer v Pearlman, constable Walker will first have to
prove that he suffered actual damage as a result of the alleged assault. Secondly, he
will have to acquire a certificate nolle prosequi signed by the DPP and in which he
confirms that he has examined the affidavits by constable Bloodhound and refuses to
prosecute at the instance of the state. Constable Walker will also have to provide
security to the amount of R2500 – deposited with the Magistrate's court who has
jurisdiction in the matter.

Decisions to prosecute or not to prosecute may be reviewed, either by the NDPP

under the NPA Act or by the courts under the rule of law.

The chances of AfriForum's private prosecution unit to institute a

prosecution.

The question thus arises whether an entity such as AfriForum – a civil rights
organization would be able to institute private prosecutions at the instance of the
State.

Since the 1990's our courts have held that juristic persons such as companies, close
corporations and voluntary associations do not have the right to institute a private
prosecution on behalf of someone else under section 7 of the CPA. In Prinsloo v Van
der Linde, the appeal against the constitutional validity of section 7(1)(a) was upheld

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after it was argued that there exists an acceptable reason for limiting a juristic
person from instituting private prosecutions.

AfriForum would therefore only be able to institute such private prosecutions in cases
where they can prove that constable Bloodhound has substantial interest in the trial
and has personally and individually suffered harm as the direct result of the
accused's conduct, as per s 7 (1) – (4), however, this prosecution would need to be
instituted in the name of / on behalf of constable Bloodhound, as per section 10(1)
of the Act.

Alternatively, AfriForum would have to challenge the Constitutionality of section 7 of

the CPA – although courts in the past have been reluctant to consider this issue and
it is unlikely that such challenge would succeed.

Having the mater reviewed internally by the NPA.

Any aggrieved person who is unhappy with the decision of a prosecutor may
approach the court to challenge such decision by judicial review. If constable
Bloodhound can prove that a decision to nolle the docket was unlawful, unreasonable
or procedurally unfair, the court may institute a number of possible orders to rectify
the misjustice. These include: Declaring the prosecutors' decision as invalid, ordering
the prosecutor to reconsider the decision, replacing the prosecutors' decision with its
own, ordering the government to pay his damages.

This avenue of judicial review would, however, only be permitted after constable
Bloodhound has exhausted all internal remedies available to him.

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Setting aside the application by having the High Court review the matter.

It is likely, considering the nature of the crime of assault against a police officer, that
constable Bloodhound may not appeal to the high court but can apply to have the
prosecutor's decision reviewed, since such decision to nolle the docket would likely
amount to a misadministration of justice and a gross procedural irregularity on the
prosecutor's part, as per section 22(1)(c) of the Superior Courts Act.

If the prosecutor's decision does not amount to a gross irregularity, he may argue
that the prosecutor unfoundedly rejected admissible or competent evidence, which
would be the testimonies of both police officers.