CHAPTER 14- The charge (Section 80-104)

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Section 81- Joinder of Charges

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Joinder of charges

Any number of charges against an accused may be joined, provided this is done
before evidence is led on any one of those charges Where a charge was added after
evidence had been led, such a charge will be declared null and void on review and
the matter remitted to the magistrate to continue with the trial on the original charge.

Basically there is no limit on the number or variety of offences that can appear in one
charge sheet. Usually considerations of convenience, either of the state or the
accused, will determine whether separate trials will be held on different charges.
When, for instance, a single murder assault was committed against several persons
and succeeded against one but failed against another, it would be in order to charge
the accused with murder and attempted murder in one charge sheet.

There are, however, two exceptions:

Later joinder
 Subsection 1 contains a prohibition on joinder which operates when evidence
has, in fact, been led. No further charges may be added after evidence has
been adduced.

Interests of justice
 In terms of subsection (2) the court may "in the interests of justice" before or
during the trial direct that the joined charges be considered in separate trials.
Before the accused pleads, the prosecutor, as dominus litis, may in his or her
discretion withdraw charges; but after the accused has pleaded the
prosecutor no longer has this power (see section 6).

 This power of separation was probably given to the court to make provision
for exceptional circumstances which may arise, for instance where one of
several similar charges ought to be heard as a test case. In this way, the
costs and inconvenience of lengthy and duplicated evidence can be avoided.

 It may also appear in the course of a trial that essential evidence regarding a
particular charge is unavailable while the other charges can conveniently be
disposed of. It can also happen that the preparatory work of either the state or
the accused on one or more of the charges is not complete.
At what stage
Application to have two or more charges tried separately should preferably be done
before the accused has pleaded, but in terms of subsection (2)(b) can also take
place during the trial. The charge, which is then postponed, is adjudicated de novo.
Evidence which has already been led on that charge will have to be repeated in the
new trial. What was said in the previous trial can be used as material for cross-
examination. A trial court's refusal to allow a charge to be adjudicated separately is
interlocutory and not subject to appeal. If the defence wants to allege that the refusal
led to an injustice, the allegation must be raised when the whole case goes on
appeal.

82 Several charges to be disposed of by same court

Before the same court

When serious and minor charges appear together on the same charge sheet, all
must be disposed of by the court that has jurisdiction over the serious charges. A full
picture of criminal conduct which occurred in a short space of time should be placed
before the trial court. Previous Criminal Procedure Acts did not contain a similar
provision, but the practice determined by this provision has been followed for many
years.

The power of the court to dispose of separate charges is subject to the power to
order separate trials in terms of section 81(2). In such a case different courts can
adjudicate the charges.

This new section endorses a sound procedural tenet and an essential prerequisite
for appropriate sentencing. The requirement that all the charges against an accused
be heard by the same court enables that court to form a total picture of the
individual’s criminal activity in order to take adequate cognizance of the classic triad
of offender, offence and community which constitutes the cornerstone of responsible
sentencing in South African law. In cases where the simultaneous disposal of
multiple counts will, in fact, prejudice the administration of justice, s 80 permits a
court to order a separate trial, to be presided over by another court.
 83 Charge where it is doubtful what offence committed

In most cases, the person who is responsible for drafting charge sheets or
indictments will not, prior to trial, be exactly sure which facts the court will find to be
found proven. To avoid this dilemma, s 83 authorises the drafter of a charge sheet or
an indictment to charge an accused with all the offences that might possibly be
proved by means of the available facts.

Section 83 authorises the inclusion in the charge sheet of all the charges that could
possibly be supported by the facts, even if they overlap to such an extent that
convictions on all or on some of the counts would amount to a duplication of
convictions An accused may thus not object, at the beginning of the trial, to the
charge sheet or indictment on the basis that it contains a duplication of charges.

Such a duplication will occur where more than one charge is supported by the same
culpable fact. It is, however, the task of the court to be careful not to convict an
accused of more than one offence if the offences with which the accused is charged
in the relevant charges rest on the same culpable fact. In short, it is the court’s duty
to guard against a duplication of convictions and not the prosecutor’s duty to refrain
from the duplication of charges.

Uncertainty about what can be proved

This section applies to the formulation of charges and authorises the prosecutor to
bring in as many charges as can be justified by the facts to be proved. Against such
a charge sheet no objection can be made. At the end of the trial the court must
decide whether allowing certain facts to play a role in more than one conviction will
lead to duplication or splitting. Uncertainty is not a prerequisite. When the prosecutor
knows that more than one offence has been committed, he or she ought to charge
the accused with more than one offence. If the prosecutor is uncertain about what
exactly can be proved, the charges are formulated in the alternative.
The rule against splitting
The right of a prosecutor to bring in several charges from one set of facts can
seriously prejudice an accused. For example, a man who rapes his fifteen year old
daughter can be charged with rape, incest and intercourse with an underage girl. A
single criminal act could then result in three convictions and sentences. Furthermore,
a lower court would then, by duplication of convictions, be able to impose sentences
which together would far exceed the punitive jurisdiction the court would have had
had there been only one charge. This situation compelled the courts to develop a
common law rule against the "splitting of charges". Although the rule is aimed not so
much at the splitting of charges as the duplication of convictions.

84 Essentials of a charge

The main purpose of a charge

The heart and soul of a charge is that it has to inform the accused of the case the
state wants to advance against him or her. This is after all what fairness requires and
what is now expressly required by C 35(3)(a).

For this reason subsection (1) requires sufficient information of the offence with
which the accused is charged.

The name of the offence

Common law
When the charge is one of a common law offence, the name of the offence is
indicated. The most sensible thing to do is to choose the name used in the Criminal
Procedure Act. In Schedule 1 virtually all offences known to our common law are
listed. However, when the particulars of the act are unmistakable, defects in the
name will not necessarily be fatal.

But that is not a licence for careless formulation. There are relatively complicated
charges, for instance those involving fraudulent misrepresentation or nondisclosure,
where precise formulation is necessary in order to inform the accused reasonably
about what is alleged (S v Rosenthal 1980 (1) SA 65 (A)). Apart from considerations
of fairness towards the accused and compliance with legal provisions, precise
formulation of the charges serves as a useful exercise for the prosecutor who from
the outset has to consider the evidence at the state's disposal and the core elements
of the charge(s) he or she wants to prove. In this manner fatal deficiency in the
state's case can be seen and, where possible, supplemented at an early stage.
(b) Statutory
A statutory offence is a contravention not of the common law but of a statutory
provision. Subsection (3) provides that the offence can be described in the words of
the statutory provision or in similar wording. The number of the section of the Act or
regulation contravened ought to be given and it is customary to indicate related
sections, such as provisions for punishment, or a provision which creates
presumptions, or, in appropriate cases, relevant statutory definitions.

The time when

This provision is qualified by section 92(1)(c) which provides that a charge is not regarded as defective if
the time of the offence is omitted from the charge sheet in a case where time is not of the essence of
the offence. Time would be essential where for instance it is an offence to perform certain actions after
dark, such as hunting, or driving without lights. The date is included in the reference to the time of the
offence; extensive qualifications appear in section 92.

The place where

It is necessary to indicate the place in order to enable the accused to conduct a proper defence and to
determine whether the offence took place within the court's area of jurisdiction. Although section 111 of
the Magistrates' Courts Act 32 of 1944 apparently only applies to private law proceedings, it is submitted
that subsection (3) thereof also applies to criminal proceedings. That subsection provides that no
misnomer shall vitiate any proceedings if the person or place is described as it is commonly known.
There is apparently no prejudice if a charge is clear enough to enable the accused to look on a map for
the place at which the alleged offence was committed.

Indication of a place is in general intended to inform the accused, but when an act would only be an
offence at that place, such as on a public road, the place is an indispensable element of the offence (R v
Mapikitla 1950 (1) SA 337 (G); R v Vuso and Others 1952 (4) SA 744 (EDL)). In such case it is wrong to say
"at or near".

The person against whom

In cases of theft the name of the owner of the property or of the person under whose lawful control it
was (if the prosecutor is aware of it) is always stated on the charge sheet. If the owner is unknown to
the prosecutor, that fact should be stated. This is done to inform the accused and because dispossession
of property which belongs to no one is not a crime. Other provisions relating to property appear in
section 97(7), (8) and (9). It is sufficient to use the official designation or other descriptive title of the
person against whom the offence is committed (section 92(1)(b)).

Where an act is only an offence when it is committed against a member of a class, it is necessary to
mention that the victim belongs to that class, for instance that the victim is a woman or child. Where it
is alleged that the accused acted through a representative and is thus vicariously responsible, the name
of the representative must be mentioned or the representative must be described in recognizable detail.
When an offence of violence against someone affected more than one person, a separate charge sheet is
drawn up in respect of each victim, even if there was only one act, such as the throwing of a bomb into
a crowd; this is also done when a person is assaulted more than once. This is because a separate intent
is ascribed to the accused with regard to each victim and because human beings are not grouped
together as chattels or animals.

The property in connection with

The property must be reasonably identifiable from the description in the charge sheet. To describe stolen
property as "a quantity of clothing" or "toiletries" is inadequate (S v Radebe 1965 (4) SA 118 ( O ) a n d S v
Smith en 'n Ander 1991 (2) SACR 217 (C)). In S v Maphinda 1979 (2) SA 343 (N) the charge mentioned a
particular parcel of dagga. The accused pleaded not guilty and was in fact not guilty in respect of that
particular parcel of dagga. However, he candidly admitted that he was indeed in possession of another
parcel of dagga, which was not mentioned in the charge. His conviction in respect of the other parcel of
dagga was correctly set aside because it applied to property in connection with which he had not been
charged. To charge someone with theft of a goat and then prove theft of a sheep is insufficient. The
charge will have to be amended.

Presumptions
Some courts encourage the practice of alerting the defence in the charge to presumptions which can
come into operation against the accused (S v Kanda 1980 (4) SA 687 (SWA); S v Kekwana
1978 (2) SA 172 (NC); S v Thoele 1980 1 PH H94 (O)).

Other courts, however, take the view that the court is obliged to explain presumptions (S v D r e y e r 1978
(2) SA 182 ( N C ) ; S v B r o w n 1984 (3) SA 399 (C)).
Particulars unknown to the prosecutor
Subsection (2) assists the prosecutor when not all the particulars are available to him or her. The
prosecutor may state in the charge "which is unknown to the prosecutor" in respect of the time, place,
person and property, but not if one of these aspects is an element of the offence.

Section 85 Objection to charge

Section 85 puts into the hands of the accused a useful instrument for bringing about the quashing of a
charge even before he has pleaded to it. The section also enables the accused to obtain, by means of a
court order, more particulars about aspects of the charge where the State is opposed to furnishing such
information. Where a court sustains an objection to the charge sheet, the State must be given an
opportunity of remedying such charge sheet. However, if the charge sheet is not capable of
amendment or if the particulars will not cure the defect, the charge will be quashed.

Objection
The procedure of objection contains everything which could formerly be done by means of exception or
application for quashing. The components of subsection (1) overlap. Paragraphs (a) to (d) all cover
situations in which an element of the offence or a factual allegation is absent. If it is a component of the
offence which is lacking, the accused can have the charge quashed, but it is possible that the only
reward for the accused's effort is a new and improved charge. If the accused remains silent and is
convicted, the appeal court may possibly acquit because of deficiencies in the charge. This statement
should be read subject to what is said under section 88.

As far as a factual omission is concerned, the objection will in the end lead to the rendering of further
particulars, which the accused might as well have requested under section 87. If the charge is capable of
two meanings one of which discloses an offence and the other not, the meaning which keeps the charge
valid will be given to it (R v Moletsane 1941 OPD 88 at 96).

As far as a wrong name is concerned, as contemplated in paragraph (a), if the accused really insists that
his name be corrected, no court will be unwilling to correct it at any time before judgment.

The accused ought to give reasonable notice of the objection, but the DPP or prosecutor can waive the
requirement of notice. The court can also exempt the accused from the requirement to give notice or it
can allow an adjournment for purposes of notice. An accused who does not request further particulars to
the charge sheet cannot ask that the charge sheet be quashed because it does not disclose sufficient
particulars.

When objection should be made

The accused must raise the objection before pleading (Machepa en Andere v Davel NO en 'n Ander 1990 (1)
SACR 543 (W)). The pleas which the accused can raise are contained in section 106. After the accused
has pleaded it is no longer possible to raise an objection; the trial must proceed.

The defect, if there is one, can nevertheless be remedied in the course of the trial in terms of section 86.

If that does not happen, the point remains and can be raised at the end of the trial as a reason for
discharge (David v Van Niekerk NO 1958 (3) SA 82 (T)). If the prosecutor believes that the objection is well
founded, it is recommended that he or she immediately request an amendment in terms of section 86
rather than first argue the matter.

It is only when an actual legal point is raised by the defence, in respect of which point a genuine
difference of opinion exists and which point affects the issue of conviction so seriously that the entire
case will fall away if the accused is shown to have been correct, that it will be worth using this section. S
v Nathaniel 1987 (2) SA 225 (SWA) is an example of such a case. The court upheld the objection to the
charge sheet, found that the charge sheet could not be corrected by an amendment and quashed it in
spite of the provisions of subsection (2)(a). In a minority judgment the attitude was adopted that the
subsection in question is mandatory and that there ought to be an order for amendment. The majority
view is supported because a finding that a charge cannot be saved makes it impossible for the court to
order a sensible amendment.
 Section 86 Court may order that charge be amended

Nature of intended amendment

The section expressly authorises the following types of amendment:
Insertion of a necessary allegation, also where the charge was defective and did not disclose a defence
(R v Crause supra).

Adaptation of an allegation to the evidence where there appears to be a difference between the
allegation and the evidence which was presented to prove it, as long as it is not a substitution in the
guise of an amendment. In S v Kruger en Andere 1989 (1) SA 785 (A) at 796IJ
Van Heerden JA remarked that the borderline between an amendment and a substitution will not always
be easy to draw in practice. In each case there has to be an investigation into whether the proposed
"amended" charge differs from the original charge to such an extent that it amounts to a substantially
different charge. Say, for instance, the charge alleges that the theft of A's horse took place on day A at
place A, but from the evidence it appears that it was B's horse that was stolen an amendment to bring
the charge in line will, subject to the question of prejudice, be allowed. However, if it was not A's [Page
1417] horse but B's cow that was stolen on day C at place D, adaptation of the charge will not be an
amendment but a substantially new case which is brought against the accused. Similarly, amending the
charge against the accused from theft of A's horse to one of malicious injury to the same horse amounts
to a substantially new case.

Insertion of words or particulars which are necessary but have been omitted. Previously the situation
was different. In R v Radebe 1954 (3) SA 785 (O), for instance, a conviction for theft was set aside
because the word "stole" was omitted from the charge sheet. It was nevertheless clear that the charge
was one of theft of particular goods and the shortcoming could have been remedied. Such an bomission
will today no longer be fatal to the state's case.

Striking out of words which should not have appeared there. This will be done especially where such
words make the charge confusing, obfuscate its meaning, or which could prejudice the accused; for
instance, a description of the accused as a "loafer".

When the charge contains "any other error". The type of error possibly covered here is one such as that
which arose in R v Myende 1959 (4) SA 135 (N). There the accused were charged with escaping in terms
of section 48(1) of the Correctional Services Act 8 of 1959. In view of the fact that the Correctional
Services Act 111 of 1998 was not yet in operation the charge was amended on review by the
substitution of the relevant section of the old Prisons Act for section 48(1) of Act 8 of 1959.

Stage at which amendment can be made

The amendment can be effected "at any time before judgment". The probability that an accused will be
prejudiced is, of course, greater as the trial proceeds to its end because the defence would not have
borne the amendment in mind. It is submitted that the word "judgment" contemplates the
announcement of the finding, with reasons, at the end of the trial. This means that a judicial officer who
gives judgment orally at the end of the trial is entitled to interrupt the speech and effect an amendment
of the charge if it was overlooked earlier. The prosecutor and accused must be asked for their views. At
such a late stage the court must seriously consider possible prejudice to the accused.

Limits upon the power to amend

In the section only one limitation is placed on the court's power to amend: the accused may not be
prejudiced in his defence. The test for prejudice is whether the accused will, as far as the presentation of
his or her case is concerned, be in a weaker position than that in which he or she would have been had
the charge been in the amended form when the plea was submitted (R v Baxter 1928 AD 430). This does
not mean that the accused will not be deprived of a handy technical point, such as an error on the
charge sheet. The prejudice must be on the merits. There will be prejudice if the accused could
reasonably have presented or sought other evidence or would have cross-examined differently had the
charge sheet read differently, and an adjournment or other indulgence cannot remove the prejudice.

Manner of amendment
There must be an indication on the charge sheet that the charge has been amended. A
small amendment can be written in, but if there is not enough space an amended charge sheet must be
attached (Grey supra at 539).

Amendment of particulars
To make the particulars more aggravating does not appear to be impermissible. In R v Mpasini 1947 (2)
SA 331 (N) the court appears to have disapproved of an amendment of "two sheep" to "three sheep”;
But if the same act is intended a larger corpus delicti cannot prejudice the accused in his defence and it is
submitted that such an amendment would be in order.

The trial shall proceed (subsection (3))

The provision that when a charge is amended the trial shall proceed in the same manner, with the same
consequences, as that in which it would have proceeded had the initial charge been in its amended form
rests on the supposition that there was a plea of not guilty. However, when the accused pleads not
guilty on a main charge but guilty on the alternative charge, and the alternative charge is amended,
does the plea of guilty remain in place as if it had been offered regarding the amended charge? The
answer is yes. That is the express consequence of subsection (3). In order to avoid this consequence,
the accused must withdraw the plea of guilty to the amended charge (S v Christodoulou 1967 (3) SA 269
(N) at 277D and 288A). The accused's plea of guilty will then serve as evidential material regarding the
factual allegations in the charge as they were before amendment.

Validity of proceedings (subsection (4))

This subsection assists the state even more. Its result is that if a charge which ought to, strictly
speaking, be amended is left unamended, the proceedings remain valid unless there was a request for
amendment and the court wrongly refused to effect the amendment. In such a case the conviction will
be set aside if the evidence does not support the charge. The ambit of subsection (4) was discussed in R
v Alberts 1959 (3) SA 404 (A). The court said at 407F that variance between the charge and the evidence
does not impair the state's case if the amendment that could have corrected it is of such a nature that it
would have been allowed because it would not have prejudiced the accused. In R v Alberts, which
concerned a charge of fraud, the incorrect person was named as the aggrieved person, but the error was
left unchanged and the conviction was confirmed.

Section 87 Court may order delivery of particulars