CPR3701/102/2/2022

Tutorial Letter 102/2/2022

Criminal Procedure
CPR3701

Semester 2

Criminal and Procedural Law

This tutorial letter contains important information about your module.

BARCODE

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Dear Student

INTRODUCTION

Tutorial letter 103 is a supplementary to some of the material (CHAPTERS 2 – 6 of the study
guide) which is not contained in study guide. As you will no doubt see, the content is structured
in the same way as that found in the main study guide.

PLEASE NOTE: THE CONTENT OF TUTORIAL LETTER 103 FORMS PART OF THE STUDY
MATERIAL AND MUST BE STUDIED AS SUCH.

CHAPTER 2
CRIMINAL COURTS OF THE REPUBLIC
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LEARNING OUTCOMES

Once you have studied chapter 2 of the handbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:
▪ identify and discuss the hierarchical nature of the South African court structure
▪ identify and practically discuss the effect of the composition, jurisdiction and appeal
jurisdiction of the Constitutional Court
▪ identify and discuss the effect of the composition, jurisdiction, constitutional jurisdiction and
appeal jurisdiction of the Supreme Court of Appeal
▪ identify and practically discuss the effect of the composition and appeal jurisdiction of the
High Court of South Africa
▪ identify and practically discuss the effect of the composition of the lower courts of South
Africa
▪ explain the jurisdiction of the criminal courts and therein distinguish:
― offence jurisdiction
― extended jurisdiction in respect of offences committed on South African territory
― jurisdiction in respect of offences committed outside South Africa
― sentencing jurisdiction
― jurisdiction to pronounce upon the validity of laws of the conduct of the president

ACTIVITY 2.1

With regard to chapter 2:

Study paragraphs The whole chapter

ACTIVITY 2.2

QUESTION 1
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?
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QUESTION 2
Discuss the jurisdiction of the Supreme Court of Appeal to determine questions in terms of section
333 of the Criminal Procedure Act.

CHAPTER 3
THE PROSECUTION OF CRIME
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LEARNING OUTCOMES

Once you have studied chapter 3 of the handbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:
▪ identify and analyse the need for a system of prosecution in civilised societies
▪ distinguish between a system of private and public prosecutions
▪ describe the nature, scope and content of the South African system of prosecution with
specific reference to
― the constitutional mandate of the National Prosecuting Authority
― the legislative authority by which the National Prosecuting Authority operates in
South Africa
▪ discuss and critically evaluate the role of the prosecutor as dominis litis and its effect on
the discretion to prosecute
▪ fully distinguish between withdrawal of a charge and the stopping of prosecution and
identify their effect in a given practical scenario
▪ discuss the practical content and effect of the prescription of the right to prosecute
▪ critically evaluate the role of ethics in the prosecution of crime
▪ discuss in detail the nature, scope and content of the diversion of criminal trials in South
Africa
▪ discuss in detail the nature, scope and content of private prosecution by elaborating on the
following concepts:
― private prosecution under statutory right
― private prosecution by an individual on a certificate of nolle prosequi
― locus standi of a private prosecutor
― the nature, scope, content and effect of a certificate nolle prosequi
― security by a private prosecutor
― failure of a private prosecutor to appear
― costs of a successful private prosecution
― costs of accused in an unsuccessful private prosecution
― intervention by the state in a private prosecution

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ACTIVITY 3.1

With regard to chapter 3:

Read paragraphs 3; 4.2 - 4.4; 4.6 - 4.12; 4.16 – 4.17

Study paragraphs 1 – 2; 4.1 (4.1.1 - 4.1.4; 4.5; 4.13 - 4.15; 4.18 and 5)

ACTIVITY 3.2

QUESTION 1
Why is it necessary for the state to conduct private prosecutions, in light of the system of public
prosecution available in South Africa? In the light of this fact, is there a place for the procedural
figure of private prosecution?
QUESTION 2
Discuss the functions and powers of the DPP and compare them with those of the NDPP.
QUESTION 3
A and B are charged with the offence rape. At the time of the commission of the offence, A is 30
years old, whilst B was only 14 years. Determine the circumstances under which both the accused
may be tried in South African law.

CHAPTER 4
THE RIGHT TO LEGAL ASSISTANCE
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LEARNING OUTCOMES

Once you have studied chapter 4 of the handbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:
▪ sketch the historical development of the right to legal assistance in South Africa with
reference to the pre-constitutional and post constitutional position
▪ discuss case law reflecting the development of the right to legal assistance
▪ fully enumerate the right to legal assistance during the pre-trial phase of the criminal
process
▪ fully enumerate the right to legal assistance during trial with specific reference to
― the duty to inform the accused of the right to legal assistance
― the duty to afford the accused an opportunity to obtain legal representation
― the role of the legal representative and others in providing assistance to the accused
― the accessibility of legal representation

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ACTIVITY 4.1

With regard to chapter 4:

Read paragraphs 1 -2; 6 - 7; 9

Study paragraphs 3 – 5; 8; 10

ACTIVITY 4.2

QUESTION 1
Read the following set of facts and then answer the following question:
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.)
QUESTION 2
“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 or disagree.

CHAPTER 5
THE ACCUSED: HIS OR HER PRESENCE AS A PARTY
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LEARNING OUTCOMES

Once you have studied chapter 5 of the handbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:
▪ use constitutional imperatives and judicial interpretation to elucidate the accused’s right to
confront evidence and contextualise it against the right to be present as a party
▪ provide a detailed analysis of the situation(s) where the general rule regarding presence
at trial may be lawfully infringed
▪ contrast admission-of-guilt fines and compounding in terms of section 341 of the Criminal
Procedure Act

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ACTIVITY 5.1

With regard to chapter 5:

Read paragraphs Read the whole chapter

ACTIVITY 5.2

QUESTION 1
i. Briefly discuss the principle that an accused must be present at his trial.
ii. Briefly discuss each exception to the principle that an accused is entitled to be present at
the trial and to confront his accusers.
iii. Discuss the compounding of minor offences and explain the difference between
compounding offences and the admission-of-guilt fine.

CHAPTER 6
THE EXERCISE OF POWERS AND THE VINDICATION OF INDIVIDUAL RIGHTS
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LEARNING OUTCOMES

Once you have studied chapter 6 of the handbook, you should be able to solve problems related
to a practical set of facts on the following aspect and concepts:
▪ outline the fundamental meaning of “reasonable grounds” and “reasonably necessary” in
relation to the requirement of reasonableness in the exercise of power

ACTIVITY 6.1

With regard to chapter 6:

Read paragraphs 1-2

Study paragraphs 3

ACTIVITY 6.2

QUESTION 1
Discuss the terms “reasonable”, “justifiable” and “proportionality” with reference to the criminal
procedural powers of the police in the pre-trial phase.

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QUESTION 2
Discuss the conflict between the interests of society in upholding individual rights and its interest
in combating crime, and indicate how this conflict can be resolved.

M T MOKOENA: mokoemt@unisa.ac.za (012) 429-2265

KX KOZA : kozaxk@unisa.ac.za (012) 429-2614