MCQ QUESTIONS

SECURING THE ATTENDANCE OF THE ACCUSED

1. Summons must be issued by the clerk of the court and served by a police officer. It
does not need to offer an admission of guilt fine.
2. Written notice to appear in the lower courts in terms of section 56 must offer an
admission of guilt fine (s 57).
3. The written notice is issued by the peace officer, without the intervention of a clerk of
the court, and served personally by handing the notice over to an accused.
4. A summons is prepared by a prosecutor, issued by the clerk of the court and served
on an accused by a messenger/sheriff of the court or a police official – usually the
investigating officer. It does not need to provide an admission of guilt fine, but it may.
5. A written notice to appear in court is prepared, issued and handed directly to an
accused by a peace officer. It must offer an accused the option of paying an
admission of guilt fine in order to avoid a court appearance.

John Baloyi is summoned to court on a charge of shop lifting (theft) of a block of cheese
valued at R65-00.  The summons was issued by the investigating officer, a constable in the
SAPS who signed and stamped the summons with the police station stamp. He gave the
summons to the clerk of the magistrate’s court to serve the summons on John, because the
clerk lived in the same area as John, and could serve the summons on his way home from
work. The summons did not offer John an opportunity to pay an admission of guilt fine. The
summons called upon John to attend court in 7 days.
6. The summons was unlawful because it should have been issued by the clerk of the
court, and served by a police officer. It did not need to offer an admission of guilt fine.

John Baloyi is served a written Notice to Appear in court on a charge of shop lifting (theft) of
a block of cheese valued at R65-00. The Written Notice was issued by the investigating
officer, a constable in the SAPS who signed and stamped the Written Notice with the police
station stamp. He gave the Written Notice to a police officer to serve the Notice on John,
because the officer lived in the same area as John, and could serve the Notice on his way
home from work. The Notice offered John an opportunity to pay an admission of guilt fine.
The Notice called upon John to attend court in 7 days.
7. The written notice was served lawfully because it was served by a police officer.
 8. A written notice to appear in court would be lawful if the sentence for the offence
which it was issued falls under the provisions of section 56 of the CPA.
9. The written notice to appear in court was lawful because it must offer John an
opportunity to pay an admission of guilt fine.
10. The written notice was issued lawfully because it was issued by a police officer.

John is served with a summons to appear in the Randburg district Magistrate’s Court in 20
days time. John has a doctor’s appointment on the day he is meant to appear in court. He
decides that he will not go to court at 9:00 am as it is stipulated in the summons, but will go
to court after his doctor’s appointment. He arrives at court at 12 noon to find that his matter
has already been called in court. What could John expect to find has happened to his case?
11. A warrant for John’s arrest was granted by the magistrate at the prosecutor’s request
and there will be an enquiry to determine why he was not in court.

John is stopped on the highway at a Police Road block while driving his car to an important
meeting. The police officer scans John’s  driver’s license to find on his police computer that
there is an old outstanding warrant for John’s arrest for failing to appear in court in Cape
Town on a speeding ticket he received a year ago in Cape Town. The police officer arrests
John and detains him in a white police van along with other people. They tell him he will be
taken to Johannesburg Central Police station.
12. The police officer arresting John must hand to John a copy of the arrest warrant or a
telegraphic copy on demand for the arrest to be lawful.

13. Requirements which must be complied with regarding the use of force to effect
arrest: the suspect must be aware that an attempt is being made to arrest him and
must in some way be informed of the intention to continue to try to flee or resist the
attempted arrest despite being aware thereof and the arrester must have the
intention of brining the offender to justice to face criminal charges, there must be no
other reasonable means available to affect the arrest of the suspect and the arrester
must be lawfully entitled to arrest the suspect, the arrester must attempt to arrest the
suspect, the suspect must attempt to escape by fleeing, there must be no other
reasonable means available to affect the arrest of the suspect.

SEARCH AND SEZIURE

 1. The police may use force to overcome resistance to search or their entry to
premises, they must first audibly demand entry, and give a reason why the want to
enter and search.
2. In terms of the CPA, when executing a search warrant a search warrant remains in
force until it is used or cancelled.
3. In terms of the CPA, when executing a search warrant, a police official may search
the premises named in a warrant, and may also search any people found on the
named premises, even though they are not named in the warrant.
4. In the context of an illegal search and seizure in violation of the accused’s’
constitutional rights the evidence seized must be excluded if either the admission of
that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice.
5. If no female police officer is available, the search must be conducted by any woman
designated for the purpose by a police official.

Sipho is a police constable who is on patrol duty in Yeoville, a suburb of Johannesburg. He

sees Drag Ealer standing against a lamppost apparently doing nothing. A Mercedes sports
car pulls up and Drag Ealer leans into the window of the car, and performs a transaction with
the driver. A clear plastic bag of white powder is handed by Drag Ealer to the driver of the
car, which pulls off. Sipho, walks up to Drag Dealer and immediately starts to search him,
finding several small clear packets with white powder in his pockets and quite a large sum of
cash in Drag’s pockets. Dealing in drugs is a Schedule 1 offence.

6. The magistrate can issue an arrest warrant if there is reasonable suspicion that an
offence was committed in the area of the Magistrates’ jurisdiction or if the suspect
who committed the offence can be found in the area of the Magistrates’ jurisdiction.
7. An application for a warrant of arrest of Drag should be in writing under oath, and set
out that Drag is suspected of having committed an offence and is in the jurisdiction or
suspected of being in the jurisdiction of the magistrate granting the warrant.
8. Sipho can arrest Drag without a warrant because Drag committed any offence in
Sipho’s presence.
9. Sipho may search Drag because the packets of white power may afford evidence of
the commission of any offence and a magistrate would have granted him a search
warrant had he applied for one.
 10. Sipho may search Drag because the money seized was concerned in the
commission of an offence and the magistrate would have granted him a search
warrant had he applied for one.

Sipho is a police constable who is on patrol duty in Yeoville, a suburb of Johannesburg. He

sees Drag Dealer standing against a lamppost apparently doing nothing. A Mercedes sports
car pulls up and Drag Dealer leans into the window of the car, and performs a transaction
with the driver. A clear plastic bag of white powder is handed by Drag Dealer to the driver of
the car, which pulls off. Sipho, walks up to Drag and immediately starts to search him, finding
several small clear packets with white powder in his pockets and quite a large sum of cash in
Drag’s pockets.
11. Sipho may search Drag if he arrests Drag first.
12. Sipho can search Drag without a search warrant if Sipho reasonably believes that
Drag is in possession of a section 20 article and a magistrate would have granted
him a search warrant had he applied for a warrant.

Patrick is the owner of a Night club where young people go out at night to party. Drug
dealers go to the club where the dealers find many eager customers to buy their illegal and
dangerous drugs. Patrick is made aware of this situation and decides to put a stop to the
drug dealing on his premises by catching Drag Dealer the biggest drug dealer of them all in
possession of drugs in Patrick’s nightclub. Patrick calls the police to assist him, but they
refuse to come. They say they are busy. Anyway the police station is far away and the police
are not readily available.
13. Patrick may enter the premises and search Drag for drugs if the police are not readily
available.

A police informer advises a police officer that drug dealers are making illegal drugs in a
house in Benoni. The evidence of the informer is reliable. The offence for which the drug
dealers are liable are possession of and dealing in drugs.
14. An eye witness affidavit from the police informer stating that there are reasonable
grounds for believing that a section 20 article is in the possession of a person within
the Benoni magistrate’s jurisdiction should be sufficient to obtain a search warrant
from a Benoni magistrate.
The owner of a small independently owned Woolworth store catches Sibusiso shoplifting a
pair of Levi’s jeans from the store, as Sibusiso was leaving the store without paying for the
jeans. The jeans have been hidden away in Sibusiso’s leather bag. 
15. The owner of the premises is permitted to search Sibusiso if he contents to be
searched.
16. The owner of the store may not search Sibusiso, but may only seize the stolen
property that is in plain sight after having arrested him.

BAIL

1. The Constitution guarantees every accused the right to apply to be released on bail.
2. There is no onus on either the accused or prosecution (on either party) in an ordinary
application for bail. A bail application is a sui generis enquiry, with no onus on either
party.
3. Bail is a form of monetary release from custody.
4. The accused person’s previous convictions or pending charges are relevant for the
purposes of bail.
5. During a bail application, the court may consider, as a factor, the prevalence of the
type of crime with which the accused has been charged.
6. The strict rules of evidence are relaxed during bail applications.
7. An accused can, in certain circumstances, be released on bail after hours via police
bail (s 59) or prosecutor bail (S 59A).
8. The accused can only be released on police bail by a policeman of or above the
rank of a non-commissioned officer.
9. For police bail, the police officer may not set any bail conditions.
10. Prosecutor bail in terms of section 59A of the CPA can only be granted to an accused
who is charged with a schedule 7 offence.
11. Prosecutor bail can only be granted after hours by a duly authorized prosecutor for
schedule 7 offences only. The prosecutor is obliged to consult the duty detective, and
prosecutor bail only lasts until the accused’s first appearance in court after his
release.
12. There is no onus on either party, due to the judgment in Ellish, which held that a bail
application is a sui generis enquiry, with no onus on either party. However the duty to
begin is on the prosecution because someone has to begin.
13. When an accused is charged with a schedule 5 or 6 offence, the duty to begin in a
bail application is on the accused because there is reverse onus on the accused to
show that it is in the interests of justice that he be released.
14. Section 60(11)(a) and (b) places the onus on the accused to show that it is the
interests of justice he be released on bail, and therefore the duty to begin is on the
accused.
15. Release on police bail can only take place before an accused’s first appearance in a
lower court.
16. Sureties cannot be accepted as payment for bail.
17. No other modes of payment besides cash can be received in payment of police bail.
18. Only cash payments can be accepted as payment for bail.
19. Discretionary conditions may not be attached to release on police bail.
20. Release on bail may not be used as a substitute for an accused’s right to be brought
to trial within a reasonable period.
21. Release or refusal of bail may not be used as an inducement to obtain a statement
from an accused.
22. The decision to grant, or deny bail, to impose conditions, or to determine a bail
amount, should not be made with a punitive, or deterrent purpose in mind.
23. When deciding on issues of bail the prosecutor must make an independent
assessment of the case and ought not blindly to follow the police’s recommendation
that bail should be refused.
24. The amount determined for bail and the refusal of bail may not be influenced by
punitive notions.
25. An action for damages may be brought against a police official who refuses, on
malicious grounds, to exercise his discretion to release a suspect on bail.
26. Police bail and prosecutorial bail may not be granted in respect of so-called essential
infrastructure-related offences.
27. Police bail is not possible in respect of offences such as treason, sedition, murder,
rape, arson, kidnapping, robbery, and assault.
28. Hearsay evidence is admissible in bail applications.
29. A court hearing a bail application should not act as a ‘passive umpire’.
30. The personal opinion of a director of public prosecutions (as opposed to that of any
of his prosecutors) is a relevant consideration because of a DPP’s experience and
the responsibilities of his office.
31. The record of the bail proceedings—excluding the information relating to previous
convictions, pending charges and release on bail in respect of pending charges—
forms part of the record of the trial of the accused following upon such bail
proceedings—s 60(11B)(c) as read with s 60(11B)(a).
32. The record of bail proceedings, excluding, inter alia, information relating to previous
convictions, forms part of the record of the trial of the accused following upon such
bail proceedings.
33. The previous convictions of an accused are admissible as evidence in a bail
application.
34. A bail applicant is entitled to a copy of his own statement made to the police.
35. The accused and his legal representative is compelled to inform the court whether he
has previous convictions or pending charges.
36. The interests of justice do not permit the accused’s release on bail where there is a
likelihood that the accused, if released will: attempt to influence or intimidate
witnesses or to conceal or destroy evidence; endanger the safety of the public or any
particular person or will commit a Schedule 1 offence; undermine or jeopardise the
objectives or the proper functioning of the criminal justice system, including the bail
system; attempt to evade his trial.
37. According to section 60(4)(a)–(e), the interests of justice do not allow for the release
of a detained accused when any one or more of the following factors is established (it
will not be in the interests of justice to release an accused if):
a) Where there is the likelihood that the accused, if he were released on bail, will
endanger the safety of the public or any particular person or will commit a Schedule 1
offence
b) Where there is the likelihood that the accused, if he were released on bail, will
attempt to evade his trial
c)  Where there is the likelihood that the accused, if he were released on bail, will
attempt to influence or intimidate witnesses or to conceal or destroy evidence
d) Where there is the likelihood that the accused, if he were released on bail, will
undermine or jeopardise the objectives, or the proper functioning of the criminal
justice system, including the bail system
e) Where in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security.
38. Prosecutorial bail may only be granted in respect of Schedule 7 offences.
39. Schedule 7 offences: Medium serious offences:
• Public violence
• Culpable homicide
 • Bestiality; assault dangerous wound
• Arson; housebreaking
• MITP
• Robbery; Theft not exceeding R20 000
• Drugs - possession dependence producing
• Fraud not exceeding R 20 000
40. The personal opinion of a director of public prosecutions is a relevant consideration
because of a DPP’s experience and the responsibilities of a DPP’s office.
41. The court may, depending upon the circumstances of the case, rely on the opinion of
the investigating police official.
42. A court hearing a bail application must assume an inquisitive posture during the
proceedings.

CHARGE SHEETS AND INDICTMENTS

1. A summary trial in a lower court is commenced by lodging a charge sheet with the
clerk of the court.
2. Section 88 of the CPA requires a defect in the charge to be cured by evidence.
3. The court may direct that the charges against an accused be tried separately, if in its
opinion this will be in the interests of justice.
4. No additional charges can be joined after questioning of the accused has
commenced.
5. A joinder of accused may not take place after the trial has commenced.
6. In practice, the prosecutor usually charges the accused with the most serious crime
as the main charge, and the lesser offences as alternative charges.
7. The rule against the splitting of charges was in fact always directed at the duplication
of convictions and designed to apply in the field of punishment
8. The indictment (together with the notice of the trial date) must be served on an
accused at least 10 days before the date of the trial, unless an accused agrees to a
shorter time period.
9. A charge sheet or indictment does not necessarily have to disclose an offence in
order to be valid.
10. In principle, an accused is entitled to access exculpatory documents in the docket.
11. Where an accused is charged with a common law offence, the only requirement is
that the offence should be named in order for the charge sheet to be valid.
12. Section 86 provides for the amendment of the charge but not the replacement or
substitution of the original offence by an altogether new offence. The test is: does the
proposed amendment differ to such an extent from the original charge that it amounts
to another charge. Should a new charge be formulated in the course of a trial, the
possibility of prejudice to the accused is high because the accused comes to court
prepared to meet a known particular charge but is faced with an altogether different
charge.
13. When a charge is defective because of the lack of an express averment which an
essential ingredient for the relevant offence, the defect can be cured by evidence at
the trial proving the matter which should have been averred.
14. If the totality of the accused’s criminal conduct can be accommodated in one single
charge, the accused may not be convicted on multiple charges.
15. The court must enter a plea of not guilty if the accused refuses to plead or answer
directly to the charge.
16. The rule against the splitting of charges was in fact always directed at the duplication
of convictions, and was designed to apply in the field of punishment.
17. Where an accused is charged with both rape and incest arising from the same act of
intercourse, he will not be convicted of both offences.
18. Section 86 makes provision for the amendment of the charge and not for the
replacement thereof by an altogether new charge.
19. Even if no objection to a defective charge is made by the accused, there are multiple
opportunities for remedying the defective charge.
20. S 85 CPA (objections to a charge) must be read together with ss 86 and 88.
21. Where the accused fails to object to a defective charge in terms of s 85 before
pleading, and a trial commences on the basis of the defective charge, it is still
possible for the defect to be amended:
during the trial by the prosecutor in terms of s 86, or
during the trial by adducing evidence that cures the defect in terms of s 88
22. An accused may gain a tactical advantage by not objecting to a defective charge (s
85) and instead bring the defect to the court’s notice at trial in terms of s 86 – and if
the court does not allow the prosecution to cure the defect, this may provide a
reasonable ground for a discharge or acquittal of the accused.
23. Minor defects in the form of errors, mistakes, omissions, or the inclusion of minor
unnecessary insertions, or superfluous facts, in an offence (that is, the charge) listed
in a charge sheet need not be corrected if they are not prejudicial to an accused’s
defence.
24. S 92(1) states that a charge will not be defective where (a) an inessential averment
has been omitted which need not be proved at trial, (b) a person is referred to by
description (i.e. spouse) rather than by name, (c) the time of the offence is omitted
and time is not a material aspect of a charge, (d) there is non-joinder or imperfect
joinder of an accused, and (e) the value of the stolen thing or damages caused by
the criminal act is omitted. Note that as a result of ss 86 & 88 automatic amendments
at trial in terms of s 92 has become superfluous.
25. After 1959, section 86 and 88 provide that where a charge sheet is defective
because a material element of the offence is missing, the defect can be amended
on application or cured by evidence introduced at trial.
26. Any number of participants in the same offence may be tried jointly.
27. Any number of accessories after the same fact may be tried jointly.
28. Section 336 of the CPA provides that, where an act constitutes an offence under a
statutory and a common law provision, the accused can be convicted and sentenced
under either the statutory or common law provision.