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Criminal Court Practice (Q & A) Notes 2017
QUESTION 1 [10]
Your client has been indicted on a charge of murder. The accused says he acted in
private defence warding off a robber. He states that the deceased had attacked him
with a knife and he fired a shot to ward off the attack. Draft a Section 115 statement.
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL, DURBAN
CASE NO: XXX/XXXX
IN THE MATTER BETWEEN
THE STATE
Versus
XXXXXX ACCUSED
STATEMENT IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT

51 OF 1977
I, the undersigned
XXXXXXXXX
declare herewith as follows:
1
I am the accused in this matter and I understand the charge against me.
2
I admit that on ? (date) and at ? (place) I shot and killed ? (the deceased).
3
I deny that I acted unlawfully. In amplification of my denial, I draw the above
honourable court’s attention to the following:
Details of the attack by the deceased and how it led to the shooting of the deceased.
4
At all material times I acted in private defence.
Signed at ……………………
Signature
__________________________
NAME
Page | 1 Rhulani Patience Ubisi

QUESTION 2_ ________________________________________________[10]
Your client is charged with murder, it being alleged that on a certain Saturday and at
the local pub, he stabbed Tsepo with a knife thus causing his death.
Draw his statement in terms of Section 112 (2) of CPA including all relevant
admissions.
IN THE REGIONAL COURT FOR THE REGIONAL DIVISION OF XXXXX HELD

AT XXXXXXX
CASE NO: XXX/XXX
In the matter of,
THE STATE
versus
XXXXXX ACCUSED
STATEMENT IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE

ACT 51 OF 1977
I, the undersigned
XXXXXXXXX
1
2
I admit that the deceased is Mr A and that the incident occurred on xxxxx day of
xxxxx 2009
3
I admit that I unlawfully and intentionally stabbed the deceased.
4
The deceased produced a knife and tried to stab me while we at the Shebeen.
5
I became angry as I suspected that he was having an affair with my girlfriend and
took out my knife with which I stabbed the deceased twice thereby causing his
death.

6.
I admit to the charge freely and voluntarily, without any undue influence or duress
and while I am in my sound and sober senses.
7.
I have no defence to the charge and I have also been made aware of the application
of the minimum sentences pertaining to this charge.
8.
I have also been advised that I am entitled to an assessor to assist the court in these
proceedings in terms of section 93 ter of the Criminal Procedure Act but waive my
rights thereto.
NOTE TO MARKERS TO USE THEIR DISCRETION IN SO FAR AS THE

CANDIDATE IS REQUIRED TO ADMIT THE ELEMENTS OF THE CRIME
CHARGED WITH WITHOUT ALLUDING TO A POSSIBLE DEFENCE AND TO
AVOID PENALISING A CANDIDATE SHOULD THEY FAIL TO MENTION POINT 8.
QUESTION 3 [10]
You represent the accused on a charge of assault with the intent to do grievous
bodily harm. The accused says he acted in private defence after disarming the
complainant. Draft a Section 115 statement. (Include the headings in your answer).
IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF XXXXX HELD AT

XXXXXXX
CASE NO: XXX/XXX
IN THE STATE
versus
XXXXXX ACCUSED
STATEMENT IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT

51 OF 1977
I, the undersigned
XXXXXXXXX
1

2
I admit that the complainant is Mr A and that the incident occurred on xxxxx day
of xxxxx 2009
3
I deny that I unlawfully and unintentionally stabbed the complainant.
4
The complainant produced a knife and tried to stab me.
5
I disarmed the complainant of the knife and stabbed him once whilst he held me
by the collar of my shirt.
QUESTION 4 [4]
1.1
You are phoned by your client that he is in the custody of the South African
Police Service. He tells you that the South African Police Service is trying to
force him to make a statement. Tell your client about his rights and what he
should reply to the South African Police Service. (2)
That he has the right to remain silent and that he is not obliged to the questions
relating to merits of the case.
1.2 The investigating officer asks him to furnish his name and address. Is
he obliged to give this information? (2)
He is obliged to furnish his full names and address without delay.
QUESTION 5 [10]
Discuss the rights of the accused to have access to the contents of the police
docket vis-à-vis the rights of the state in this regard.
Access to the police docket is invaluable for preparation for trial. In practice the
attorney writes to the prosecutor requesting for copies of the statements of witness.
The prosecutor will obtain the docket from the investigating officer, make copies of
the statements and inform the attorney of the costs.
The state is entitled to resist access to the statement of witnesses if:

(a) Access is not justified for the purpose of a fair trial.
(b) That access would lead to the disclosure of the identity of an informer or state
secrets.

(c) That access may lead to the intimidation of witness or otherwise prejudice the
proper ends of justice.
If the state refuses access to the docket, or any particular statement in the docket,
the attorney may formally apply to court to enforce the decision in Shabalala case.
The state will then have to show on what grounds it refuses access to the docket or
any particular statements.
However, the defence must not misuse this concession to build defences around the
state evidence.
QUESTION 6 [8]
The Prosecutor wishes to submit as evidence a written statement made by

your client to a policeman to prove that your client confessed to the crime.
What would you look for in the statement to satisfy yourself that it can indeed
be submitted as evidence?
In terms of Section 217 and 219A the statement:
 Must be shown to have been made freely and voluntarily

 The accused must have been at the time in his sound and sober senses
 There must have been no undue influence exercised on him to induce him to
make such a statement
 The accused must have been informed of his constitutional right to remain
silent
 The accused must have been informed of his constitutional right to require
that his legal representative be present when the statement is taken
 If the policeman was a non-commissioned officer, then the accused must
have been taken before a commissioned officer or Magistrate
 And if it is made to a peace officer who is not also a justice of the peace,
must be reduced to writing and confirmed before a magistrate or justice
 Confession before a magistrate or justice is admissible on production of
document containing the confession.
Question 7 [3]
Your client has been convicted of assault with the intent to do grievous bodily
harm and you are now to attend on addressing the court with regards to
sentence and mitigation of sentence;
Name SIX factors to be taken into account by the court when passing down
sentence.

a) personal circumstances of the accused;
b) the interests of the community;
c) seriousness of the offence;
d) the possibility of rehabilitating the accused;
e) prevention and deterrence;
f) safe guarding the community.
Question 8 [16]
Your client pleads guilty and is convicted on the charge of driving whilst under
the influence of alcohol.
He was stopped at a roadblock and the blood alcohol analysis report indicates
that the level of alcohol in his blood was 0,08mg/100ml.
He is 50 years old, married, has 3 minor children and is employed as a driver.

He earns R7 000-00 per month.
His wife is disabled and unemployed.
3.1 List in full the factors you will present to the court in mitigation of the sentence.
(12)
A. Personal circumstances
- The accused is 50 years old
- The accused is a first offender
- The accused is married and has three minor children.
- The ages of the children are ?
- The wife of the accused is disabled and is unemployed
- The accused earns R7000.00 per month.
- The accused is employed as a driver and as he derives his income from

driving, requires to retain his driver’s licence. Sole breadwinner in the family.

B. Remorse
- The accused has pleaded guilty
- The accused cooperated with the police in the investigations
C. Facts of the matter
- The accused was stopped at a roadblock. No-one was injured.

- Blood alcohol level was just slightly over the legal limit. Legal limit is
0,05g/100ml. He was 0,06g/100ml.
3.2 What would you submit as a suitable sentence? Furnish reasons to

support your proposed sentence. Refer to the purpose of sentencing. (4)
Purposes of sentencing:
(i) Retribution (Punishment)

(ii) Rehabilitation
(iii) Deterrent
A fine together with a suspended sentence. Apply for driver’s license not to be
endorsed. Fine serves form of retribution. Suspended sentence will deter him from
repeating the offence i.e. deterrent.
Question 9 [5]
List 5 types of punishment that a District Court may impose.
1. Imprisonment.
2. Periodical imprisonment.
3. A fine.
4. Correctional supervision.
5. Imprisonment from which the person may placed under correctional supervision
Question 10 [4]
Name four (4) competent verdicts to a charge of murder.
 Robbery
 Assault GBH
 Assault common
 Culpable homicide

 Attempted murder
ETHICS
QUESTION 1 1 [3]
An attorney is approached by two accused in the same case who requests him to
represent them. During the consultation it emerges that the two accused are making
conflicting statements.
1.1 Can the attorney proceed to represent both accused? (1)
1.2 Based on the above facts, can the attorney elect to represent only one of
the accused? (2)
QUESTION 12_________________________________________________ [7]
Your client is charged with murder, it being alleged that on a certain Saturday and at
the local pub, he stabbed a fellow-patron, Tsepo with a knife thus causing his death.
Whilst your client confirms that he was at the pub on this particular night, he is
unable to remember the incident although he states that it is possible that he
stabbed the deceased. Having obtained copies of the statements of state witnesses
you come to the conclusion that the state is not in a position to prove a case against
your client.
2.1 Are you entitled to advise your client to plead not guilty? Give a reason. (1)
2.2 In the event of your client deciding to plead not guilty what ethical principles
are applicable? (1)
2.3 What procedure will you follow should the state during the course of the trial
present evidence which proves that it was indeed your client who stabbed the
deceased? (5)
QUESTION 13 [5]
Read the set of facts below and then answer the questions that follow:
Mary Twinkle is a 54 year old spinster. She is a teacher at the “Tiny Tots”
pre-school where she has taught for the past 34 years. She earns R5 100.00 per
month. She has no previous convictions. She cares for her mother who lives with
her and who is 91 years old.
One rainy night whilst driving home from a PTA meeting, she knocks down a

pedestrian, who dies as a result of the injuries sustained in the accident.

Mary is arrested and charged with culpable homicide in the Regional Court.
The charge sheet states as follows:
“That the said accused is guilty of the crime of culpable homicide in that upon or
about the 30th day of September 2014 and at or near Strand Street in the district of
Port Elizabeth, the accused, being the driver of motor vehicle with registration
number and letters DOP787EC, wrongfully and negligently caused and or
contributed to a collision in which Peter Jones suffered certain injuries and as a
result of which he died on the 30th day of September 2014 and thus the accused did
wrongfully and negligently cause the death of the said Peter Jones.”
She instructs you to represent her. As you walk into Court, she informs you that the
presiding Magistrate is the man to whom she was engaged and who jilted her on
their wedding day 35 years ago. She informs you that she believes that the
Magistrate will not be impartial. She instructs you to apply for the recusal of the
Magistrate.
Write brief, but concise notes indicating the essence of the principles governing the
recusal of a judicial officer under the following headings:
3.1 The recognized test (criterion) for recusal. (2)
3.2 The typical factors that should prompt a presiding officer to recuse himself. (2)
3.3 The recognized situations where a presiding officer should recuse himself. (1)
 Where there exists a conflict of interest.

 Animosity between the attorney and the client.
 Where the attorney is not competent to handle the type of case.
 Where the attorney would not be available.
 Where the client wants the attorney to break the law or commit fraud.
QUESTION 14 [8]
14.1 Mr M is charged with raping a 15 year old girl. He instructs you to

represent him at the trial. He admits to you that he did in fact commit the crime
and informs you that he intends to plead not guilty. He is not prepared to admit
that he raped the girl because she is his brother’s daughter. (3)
Discuss briefly whether it would be ethically correct for you to act on his
behalf should he plead not guilty.

It is not unethical to defend an accused person who you believe to be guilty of the
offence with which he has been charged or who has confessed his guilt to you.
An attorney is bound, having accepted such a mandate, to use all fair arguments
arising out of the evidence in the assistance of the accused. However, the attorney
may not assert that which he knows to be a lie. He must not set up an affirmative
case inconsistent with the confession made to him. At the end of the day the onus
is on the State to prove the case against the accused.
14.2 At the close of the State’s case, it is clear that the State has established a
prima facie case against your client. What will you advise him to do?
What would your response be if he refuses to accept your advice?
(2)
14.3 At the end of the trial Mr M is found guilty of rape. The Prosecutor does
not prove any previous convictions against him. You however know that he
has a previous conviction. When you address the court in mitigation of
sentence are you obliged to inform the court of Mr M’s previous conviction?
(3)
QUESTION 15 [3]
A State witness testifies as to the events in which your client was involved. His
testimony differs in material respects from the version which your client, the accused,
has given you.
15.1 What is your duty during cross-examination in respect of the version of your
client in so far as that of the witness? (2)
15.2 What is the risk to your client should you not carry out this duty? (1)
QUESTION 16
Your client, Michael Miler phones and informs you that the police have
arrested him and he is being detained at the Durban Central Police Station. He
says that the police are forcing him to make a statement. Advise him about his
rights and whether he is obliged to make a statement.
Michael Miler has the right to remain silent. He should inform the police investigating
officer that he has consulted with his attorney and that he prefers not to make a
statement at this stage. He should further inform the officer that he elects to make a
statement either to his attorney or if so advised, only at trial. Also client should be
advised that if he makes a statement, it could be used against him at trial.

QUESTION 17
What information is Mr Miler obliged to furnish to the police in terms of the

Criminal Procedure Act?
His name and address
QUESTION 18
You arrive at the police station and learn that Miler has been charged with rape into
Schedule 6 of the CPA. Upon consultation you record the following statement that
he makes to you:
Statement of Mr Michael Miler (accused)
My name is Michael Miler and I'm 25 years old. I live in East Street and work at
Eddies Service Station.
I know that I have been accused of raping Sweety Smith, but I did not have sex
with her without her consent. I have known her for the past year. She is a
nightshift waitress at the Tasty Eats Restaurant, and I go there about once a
week for meals. She usually waits on me and is the only waitress working there
when I get off work at 22h00. If the bar is not very busy she usually comes and
talks to me.
On the night in question we talked quite a lot, particularly when she told me that
she was bored with her marriage and there was no excitement in life for her. Her
husband likes to stay at home and watch TV rather than go out. She said that this
lead to arguments which resulted in him assaulting her. I told her that I could
provide some excitement if she was interested. She said she was interested. We
made arrangements to meet later that evening, which we did and we had sexual
intercourse. I dropped her off close to her home thereafter and watched her
walk home.
18.1 Miler instructs you to apply for bail on his behalf. He was arrested at
5pm on Friday. Can you bring an afterhours bail application? Give
reasons for your answer. (4)
After hours bail applications can only be brought before an authorized prosecutor or
commissioned police officer depending on the nature of the offence. A prosecutor
can only grant bail for offences listed in Schedule 7.
A commissioned police officer can only grant bail after consulting with the
investigating officer for offences that are outside of Part 2 and Part 3 of Schedule 2.
As this is a Schedule 6 offence, it is not possible to obtain bail after 4 hours.

18.2 Assuming that his family, who are paying your fees, need some time to
raise money for your fees and that they need the weekend to do so, by
when are the police obliged to take him to court? State day and time. (2)
By 4pm on Monday
18.3 In terms of Section 60(11)(B)(a) of the Criminal Procedure Act what

information are you compelled to disclose to the court regarding your
client when you apply for him to be released on bail? (2)
Whether the accused has any previous convictions or any pending charges
QUESTION 19
List 5 factors which the court considers to decide whether it is not in the
interest of justice to release the accused on bail.
Where there is likelihood that the accused, if released on bail:
(a) Will endanger the safety of the public or any particular person or will commit a
Schedule 1 offence;
(b) Will attempt to evade trial;
(c) Will attempt to influence or intimidate witnesses or to conceal or destroy

evidence;
(d) Will undermine or jeopardize the objectives of the proper functioning of the
criminal justice system, including the bail system;
(e) Will disturb public order or undermine the public peace or security.
QUESTION 20
As this is a Schedule 6 offence, in addition to factors illustrating that it is in the
interests of justice to release Mr Miler on bail, what more do you need to prove
to the court?
Exceptional circumstances.

QUESTION 21
List what information you would require from client in preparation for his bail
application.
- Age
- Address (whether fixed)
- Employment details
- Salary amount
- Marital status and whether he has any dependents
- Previous Convictions
- Pending charges
- Whether he has any travel documents
- Amount available to pay bail, if granted
- State of health
- Which is the nearest police station that he could report to, if that condition is
imposed
QUESTION 22
Miler is released on bail. Over a span of approximately 3 months, he has appeared

in court on 4 occasions (including his first appearance when he was granted bail).
On each of his court appearances, the matter was postponed as the J88 medical
report is outstanding.
22.1 On the 5th appearance, what would you do if the Prosecutor applies for a
further postponement? (1)
Object to the application fora postponement
22.2 Outline your argument. (5)
The accused has a right to a fair trial, which includes the right to a speedy trial. He is
suffering serious prejudice as a result of the delays being occasioned by the
State, including being absent from work and this is putting his job at risk He is also
bearing the financial burden of having to pay attorney’s fees for every occasion that
he comes to court. The matter has been postponed for the same purpose for the

past 4 occasions over a period of 3 months. The postponement should not be

granted. The State has the accused’s details and they can proceed with this matter
when they are in a position to do so, when they are in possession of the J88, upon
which time, he may be summoned to court.
QUESTION 23___________________________________________________
The court grants the postponement but marks it final for the purpose of the
J88, which is eventually provided on the next court appearance and the matter
is set down for trial. You receive the charge sheet.
23.1 What are possible grounds to object to a charge? (5)
. (a) that the charge does not comply with the provisions of this Act relating to the
essentials of a charge;
(b) that the charge does not set out an essential element of the relevant offence;
(c) that the charge does not disclose an offence;
(d) that the charge does not contain sufficient particulars of any matter alleged the
charge: Provided that such an objection may not be raised to a charge when it is
required in terms of section 119 or 122A to plead thereto in the magistrate's court;
or
(e) that the accused is not correctly named or described in the charge
23.2 Discuss briefly what may happen after you have objected to the charge.
(6)
The accused must give reasonable notice to the prosecution of his intention to
object to the charge.
However the requirement of such notice may be waived by the prosecution.
- The court may on good cause shown dispense with such notice.
- The court may adjourn the trial to enable such notice to be given.
- If the court decides that an objection is well founded, it shall make such order as
it deems fit relating to the amendment of the charge on the delivery of the
particulars.
- Where the prosecutor fails to comply with an order of the court the court may
quash the charge

23.3 Assume that as a result of your objections, the charge has been
satisfactorily amended.
23.4 How would you obtain statements from the State? (1)
Request further particulars
QUESTION 24___________________________________________________ [22]
24.1 In preparation for trial, you consult with Miler and he instructs you that
he intends to plead not guilty. Draft the necessary plea, including headings
and Section 220 Admissions, if any. (12)
IN THE REGIONAL COURT FOR THE REGIONAL DIVISION OF ......

HELD AT ....................
CASE NO: XXX/XXXX
IN THE MATTER BETWEEN
THE S TATE
VERSUS
MICHAEL MILER ACCUS ED
STATEMENT IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE

ACT 51
OF 1977
I, the undersigned,
Michael Miler
1
I admit that on XXXX and at XXXX I had sexual intercourse with Sweety Smith,
an adult female whom I have known for the past one year

I deny that I acted unlawfully. In amplification of my denial, I draw the above

honorable court’s attention that the complainant, Sweety Smith, consented to having
sexual intercourse with me. We were in fact in a loving relationship.
Student can make formal admissions into S220 of CPA wrt J 88 and DNA report
(if applicable).
Signed at XXX on the __day ofXXX 2017.
MICHAEL MILER
24.2 List for Miler what is the procedure, in sequence, that will take place
from the time of tendering the Plea to judgment.(10)
The procedure in terms of Section 115 is then followed;
The prosecutor may address the court in terms of Section 150;
The prosecutor leads his first witness (evidence in chief);
The attorney cross examines and the prosecutor re-examines;
The court can pose questions and if it does, grant the prosecutor and the defence
the opportunity to ask questions flowing from the questions by the court;
If the prosecutor leads more than one witness, the same procedure as with the first
witness is followed;
The state closes its case;
The attorney may address the court in terms of Section 151;
The attorney will first call the accused to give evidence;
The prosecutor cross examines and the attorney re-examines;
The court may pose questions and afford the prosecutor and the defence the
opportunity to ask questions flowing from the questions by the court;
The attorney will call other witnesses and the procedure as with the first witness (the
accused) will be followed;
The defence closes its case;
The prosecutor addresses the court;
The attorney presents his arguments;

The prosecutor replies (usually only in respect of matters of law);
The court may now return a verdict;
QUESTION 25_______________________________________________ [4]
List 4 options that are available to the Accused at the close of the State’s case.
- Change of Plea
- Apply for a dis charge into S 174
- Close the defence case without calling any witnesses
- Present the defence case
QUESTION 26_______________________________________________ [21]
Miler is unfortunately convicted.
26.1 Outline your argument on sentencing (bearing in mind the triad of

factors listed in S v Zinn), including what you submit as an appropriate
sentence. Your aim is to convince the court to impose a sentence which
would take into consideration that your client does not have money to pay the
fine and also that your client does not want to go to prison. (10)
26.1 Accused’s personal circumstances:
- Marital status and if he has any dependents
- The accused is employed at Eddie’s garage and earns XXX per month.
NATURE OF THE OFFENCE

- Whilst rape is a sexual offence which is considered to be serious, the accused
believed that the complainant had actually consented and is now remorseful for his
actions.
INTERESTS OF SOCIETY
Society wants to be protected. The circumstances of this matter doesn’t lend the
accused to being a threat to society. He is not a serial rapist.
Furthermore, he believed that the complainant had willingly consented.

The appropriate sentence would be a suspended sentence which will serve as a

deterrent coupled with a fine which would serve as punishment as well as retribution.
* Students are allowed to make up facts.
26.2 Despite your efforts your client is sentenced to direct imprisonment of three
years without the option of a fine.
Immediately after sentence has been imposed you receive instructions to note
an appeal against the sentence and to ensure that he is released from custody
with immediate effect.
26.2.1 Explain how you would give effect to these instructions. (7)
Address the court that you have received instructions to bring an application for
leave to appeal against sentence.
Request the court to let the matter stand down in order to allow you to prepare the
Power of Attorney to be signed by your client.
Draft the application for leave to appeal setting out grounds of appeal.
Serve the Power of Attorney and Notice on the Clerk of the Criminal court. Appear in
court and hand up the abovementioned documents.
Address the court thereon if required to do so.
Once the application for leave to appeal has been granted a verbal application for
bail pending the outcome of the appeal will be made.
QUESTION 27 [15]
Your client pleads guilty and is convicted on the charge of driving whilst under
the influence of alcohol. He was stopped at a roadblock and the blood alcohol
analysis report indicates that the level of alcohol in his blood was
0,06mg/100ml. He is 50 years old; married; has 3 children; and is employed as
a driver. He earns R7000,00 per month. His wife is disabled and unemployed.
(a) List in full the factors you will present to the court in mitigation of the
sentence.
(10)

A. Personal circumstances
- The accused is married and has three minor children.
- The ages of the children are ?
- The wife of the accused is disabled and is unemployed
- The accused earns R7000.00 per month.
- The accused is employed as a driver and as he derives his income

from driving, requires to retain his driver’s licence. Sole breadwinner in
the family.
D. Remorse
- The accused has pleaded guilty
E. Facts of the matter
- The accused was stopped at a roadblock. No-one was injured.

- Blood alcohol level was just slightly over the legal limit. Legal limit is
0,05g/100ml. He was 0,06g/100ml.
(b) What would you submit as a suitable sentence? Furnish reasons to

support your proposed sentence. Refer to the purposes of sentencing.
(5)
(b) Purposes of sentencing:
(i) Retribution (Punishment)
(ii) Rehabilitation
(iii) Deterrent
Fine together with a suspended sentence. Apply for driver’s licence not to be
endorsed. Fine serves form of retribution. Suspended sentence will deter him from
repeating the offence i.e. deterrent.

QUESTION 28
Your client appears before a magistrate on a charge of assault common. You
apply for bail for the accused. At the conclusion of the bail application,
the magistrate refuses the application without giving reasons for his refusal.
The accused instructs you to appeal. There are no new facts which arise after
the date of the decision against which the appeal is to be brought.
1.1 To which court will you appeal?
High Court.
1.2 What would the position be if that court is not in session?
Any judge of that court.
1.3 What aspects would you deal with in your Notice of Appeal, bearing in
mind that the Magistrate gave no reasons for his refusal?
That justice demands that the accused be released on bail
- That he has a fixed place of abode;
- That the accused is not a flight risk;
- That the accused will attend court on all appointed dates;
- That the accused will not interfere with prospective state witnesses
1.4 On whom would you serve the Notice of Appeal?
The Director of Public Prosecutions and the Magistrate.
1.5 If the court hearing the appeal finds that the Magistrate erred what
judgment will the court give?
The court or judge shall give a decision which in its or his opinion the Magistrate
should have given.

1.6 What would the position be in respect of new facts which arise after the
date of the decision against which the appeal is brought?
The appeal shall not lie in respect of new facts which arise or are discovered after
the decision against which the appeal is brought.
The new facts must first be placed before the Magistrate for a decision on the new
facts.
Question 29
Name four (4) options that the accused has at the close of the state case. [4]
1. Change of plea
2. Application in terms of Section 174
3. Closing of defence case
4. Opening of defence case
Question 30
May the Prosecutor withdraw a case after the accused has pleaded not guilty?
Motivate your answer. [3]
1. If the prosecutor withdraws the case, it would amount to stopping of the

Prosecution.
2. Stopping of the prosecution is the prerogative of the Director of Public
Prosecutions.
3. If the Director of Public Prosecutions has not authorized the prosecutor to do
so, he cannot withdraw the case and he will have to ask for authority.
Question 31
31.1 An attorney is approached by two accused in the same case who

requested him to represent them. During consultation it emerged that
the accused made conflicting statements. Can the attorney proceed to
represent them? [1]
No
31.2 Based on the abovementioned facts, can the attorney elect to represent
one of the accused? [2]

Once a legal representative has accepted a brief from an accused and

then withdraws from defending him, he may not cross-examine that accused on
behalf of another co-accused.
Question 32 .
32.1 Name two facts which the accused must disclose to the court in a bail
application in terms of section 60(11B) of the Criminal Procedure act.
Whether the accused has previously been convicted of any offence; and Whether
there are charges pending against him and whether he has been released on bail in
respect of those charges.
32.2 What are the possible consequences of an accused wilfully failing to

disclose those facts? [4]
If the accused fails to disclose, he is committing an offence.
The accused is liable on conviction to a fine or imprisonment for a period not

exceeding two (2) years.
Question 33
What is the difference between appeal and review? [4]
Appeal Review
1. Against a judgment / conviction or 1. Against procedure
sentence
2. Limited to the contents of the record 2. Evidence may be tendered by way of
of the proceedings affidavits
3. Limited to ground of appeal 3. Any ground of review
4. Within a specific time limit 4. Within a reasonable time
Question 34
Discuss briefly the procedure to be followed when it is intended to object to a

charge in terms of Section 85 of the Criminal Procedure Act. [6]
The accused must give reasonable notice to the prosecution of his intention to object
to the charge and shall state the grounds upon which he bases his objection.
However, the requirement of such notice may be waived by the prosecution.
The court may on good cause shown, dispense with such notice.

The court may adjourn the trial to enable such notice to be given.
If the court decides that an objection is well founded, it shall make such order
relating to the amendment of the charge on the delivery of particulars as it may deem
fit.
Where the prosecution fails to comply with an order of the court, the court may
quash the charge.
Question 35
Your client initially pleaded “NOT GUILTY” to a charge of Robbery. During the
course of the trial he decides to change his plea. How would you do this?
Motivate your answer. [3]
This could either be done by informing the court of your client’s intention and
proceeding with section 220 admissions or preparing and delivering an entire plea in
terms of section 112(2) where all the elements of the offence are admitted to.
Question 36
Explain in detail, the nature and purpose of forms J88 and SAP 13. [6]
- Form J88
- Medical report in instances were injury is sustained as well as in rape

cases. Indicates the nature of the injury sustained and an opinion from the
medical practitioner as to how it could have been sustained. Also contains
crucial information on the complainant such as age, sex etc.
- Form SAP13
- Exhibit register where items pertaining to a particular case are entered and
later produced at the trial. Crucial information is also contained on this
form.
QUESTION 37 .
37.1. Within what period of time subsequent to the date of sentence must an
appeal in the Magistrate’s Court be lodged and with whom?
Within 14 days and lodged with the clerk of the court.

37.2. What procedure would you be obliged to follow if the period referred to
in 11.1 above has expired?
Apply for condonation of leave to appeal.
37.3. What documents will be required for the late noting of an appeal?
Application for leave to appeal
Notice of appeal
Power of attorney
QUESTION 38 (4 MARKS)
Your client “A” appears for the fifth time on 15 January 2010 on a charge of
theft. On four previous occasions the case was postponed for state
witnesses. Now the Prosecutor requests the court for another postponement
to subpoena witnesses.
How would you go about protecting your client’s interests?
Mention the principle which the court should take into account under the
circumstances?
The principle involved here is that justice delayed is justice denied.

I’ll oppose the application for a further postponement.
I’ll address the court on the question of prejudice already suffered by the accused.
I’ll apply that the case be struck off the roll in terms of section 342A of Act 51 of
1977 i.e. a permanent stay of the proceedings.
A state witness testifies as to the events in which your client was involved.
His testimony differs in material respects from the version which your client,
the accused, has given you.
40.1 What is your duty during cross-examination of the state witness
concerning the version of your client in so for as it differs from that of the
witness? (2 )
I must put the version of my client to the witness to comment thereon.

40.2 What is the risk to your client should you not carry out this duty? (1)
This will expose the accused to a charge by the prosecutor that he has just
fabricated his story as the trial proceeded.
40.3 What are the implications should you not cross-examine the witness? (1)
It would imply that the accused agrees with the version of the witness and that he
has no version to put before court.
Your client is charged with murder. Its being alleged that during a fight with
the deceased, your client struck the deceased with a fist in the face. The
deceased fell down and hit the back of his head against a rock. The deceased
lost consciousness and was taken from the scene of the incident to hospital
where he was certified dead on arrival.
Draft a section 115 statement setting out your client’s plea explanation and
admission in terms of section 220 of the Criminal Procedure Act. Include
headings.
IN THE REGIONAL
COURT FOR THE REGIONAL DIVISION OF LIMPOPO HELD AT POLOKWANE
CASE NO: XXXXXXX

_____________________________________________________________
STATEMENT IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE
ACT 51 OF 1977 AS AMENDED
I, the undersigned,
Xxxxxxxxxxxxxxx

Do hereby declare as follows:
1.
2.
I admit that the deceased is YZM and he died on (date )
3.
I admit that I fought with the deceased on (date )
4.
I admit that during the fight I hit the deceased once with a fist in the face and the
deceased fell down.
5.
I deny that I caused the death of the deceased in any manner whatsoever.
Dated at (place) on this ______ day of ______ 2007
__________________
Signature
Suppose that during the trial you become aware of the fact that the Magistrate
had insight into the docket before the trial and that he also assisted the
Prosecutor.
What procedure will you follow after conviction and sentence? Discuss.
The procedure to be followed is one of review.
I shall do the following:
- Draw a notice of motion, citing the Magistrate concerned;

- Serve the notice of motion on the Magistrate and other interested parties;
- Obtain record of the proceedings in the case in question from the Registrar of the
High Court – sent by the Magistrate after the notice of motion has been served on
him;
- Make copies of sections / portions which may be applicable;
- Copies of the applicable sections / portions to be delivered as follows: two to the
registrar and one each to the other parties;
- Reply to the Magistrate’s answering affidavit;
- Enroll the application for review (as an opposed application)
- Inform the client about the date of hearing;
- Instruct Counsel if necessary ; and
- Attend court.
QUESTION 43 (2 marks)
In certain instances bail can be granted by a police officer or a public
prosecutor before an accused person’s first appearance in court.
1.1 “Police bail” can be granted for which offences?
Section 59 of the Criminal Procedure Act 51 of 1977provides that a police officer

may grant an accused person bail before his/her first appearance in a lower court
for any offence other than those listed in part ll or part lll of Schedule 2 (of the
CPA) and after having consulted with the investigating officer.
1.2 A prosecutor can grant bail for which offences?
(Do not list all the offences but only the schedules concerned.)

Section 59A of the Criminal Procedure Act 51 of 1977 provides that a prosecutor
may authorise the release of the accused on bail for offences listed in Schedule 7 of
the said Act.
Mr X has been charged for assault with the intent to do grievous bodily harm
to Mr Brown. You represent Mr X and he has instructed you to plead guilty.
Draft the plea of guilty and include all the necessary headings and detail to
ensure a complete plea.
IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF EAST LONDON

HELD AT EAST LONDON
Case No.
In the matter between:
THE STATE
and
MR X ACCUSED
______
PLEA OF GUILTY IN TERMS OF SECTION 112(2) OF THE CRIMINAL
PROCEDURE ACT 51 OF 1977
I, the undersigned,
MR X
State as follows:
1. I am the accused in this matter.

2. I am in my sound and sober senses and understand the contents of the charges
against me as contained in the charge sheet.

3. I have not been influenced in any manner to make this statement and do so
freely and voluntarily.
4. I understand the consequences of my pleading guilty and that I will be
sentenced for my wrongdoing.
5. I plead guilty to the offence of assault with the intent to do grievous bodily harm.
6. I confirm that on the 5th day of January 2010, and at or near number 2 Smith
Street, East London, in the district of the above Honourable Court, I did
wrongfully and unlawfully assault Mr Y with the intent to do grievous bodily
harm, by punching him twice in the face with a clenched fist and striking him
once on the head with a baseball bat.
7. On the day in question the said Mr Y and I were involved in an argument which
resulted in the aforesaid assault.
8. I knew that it was wrong to assault Mr Y in the manner in which I did.
DATED AT EAST LONDON this 5TH day of January 2010.
___________________
Mr X
Your client was arrested for robbery. You are instructed to apply for bail.
Section 60 of the Criminal Procedure Act 51 of 1977 deals with such
applications.
List the requirements set out in section 60(4) of the aforesaid Act.
Where there is a likelihood that the accused, if he or she were released on bail;
- will endanger the safety of the public or any particular person or will commit a
schedule one offence;
- will attempt to evade his or her trial;
- will attempt to influence or intimidate witnesses or to conceal or destroy
evidence;

- Will undermine or jeopardise the objectives or the proper functioning of the

criminal justice system, including the bail system.
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.
The South African Police Services are entitled to seize certain articles in terms
of the law (Criminal Procedure Act). Discuss this statement briefly with
reference to the said legislation.
Section 20 of the Criminal Procedure Act 51 of 1977 deals with this aspect.
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; or
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.
John Smith was arrested for fraud at 17:00, Thursday the 24th of December.
According to the case docket and the investigating officer he was arrested for
defrauding business A in the amount of R25 000, 00.
John’s mother calls you and asks you to please arrange bail that same
evening that John is arrested.

You are very fortunate in that the investigating officer has no objections to bail
and you have arranged a prosecutor who is prepared to come out after hours
to deal with the matter.
47.1 Can John be released on bail by the prosecutor in these
circumstances?
The offence is not one for which “police bail” can be granted before the accused`s
first appearance in court. It is also not a Schedule 7 offence and thus “prosecutor`s
bail” can also not be granted. The fact that the value involved is in excess of
R20 000, 00 results in the offence falling into a more serious category and bail will
have to be granted by a Magistrate.
47.2 Should the investigating officer and the prosecutor, after having read the
docket, object to the release of John on bail, when MUST John appear in
court.
Section 50 of the CPA refers. He MUST be brought before court before the close of
court on the following Monday. The 48 hour period expires on Saturday at 17:00 and
the accused must therefore be before court before same closes the following
Monday.
Mr Brown is your client and he is in custody for armed robbery. He has
brought a bail application which was not successful. He has now instructed
you to assist him and needs advice as to what options are available regarding,
not the trial, but the bail aspect.
Advise client on what options are available in respect of the bail.

Client has the option of bringing another application for bail before the same
Magistrate that refused same on new facts (if any). The other available option to
client would be to appeal the refusal of bail.
QUESTION 49
List the methods available to secure the attendance of the accused in court.
a) arrest/custody
b) summons
c) written notice
d) warning
QUESTION 50
What are the provisos or requirements regarding the raising of the objections
referred to in question 11 above? (How does the attorney go about raising the
said objections?)
The accused shall give reasonable notice to the prosecution of his intention to object
to the charge and shall state the ground upon which he bases his objection.
Provided further that the requirements of such notice may be waived by the Attorney-
general or the Prosecutor, as the case may be, and the court may, upon good cause
shown, dispense with such notice or adjourn the trial to enable such notice to be
given.
Section 77 and 78 of the Criminal Procedure Act 51 of 1977 deal with two
different kinds of enquiries that can be held in terms of section 79 of the same
Act. Discuss the two kinds of enquiries referred to.

Section 77 states that if it appears to the court at any stage of criminal proceedings
that the accused is by reason of mental illness or mental defect not capable of
understanding the proceedings so as to make a proper defence, it shall direct that
the matter be enquired into and be reported on in accordance with the provisions of
section 79. The legal representative, if any, is to bring this fact to the attention of the
court as early as possible in the proceedings.
Section 78 is a little different and asks the question whether the accused was
criminally responsible at the time of the commission of the offence. It asks the
question whether the accused at the time of the commission of the alleged offence
suffered from a mental illness or defect which made him or her incapable of
appreciating the wrongfulness of his/her act or of acting in accordance with such
appreciation.
In a bail application the test in deciding whether to grant bail for a schedule 5
and 6 offence differs. What is the test applied in each and is it to be proved
beyond a reasonable doubt or on a balance of probability?
For a schedule 5 offence the test or question is whether it will be in the interests of
justice to release the accused on bail. In a schedule 6 offence the test is whether
there are any exceptional circumstances that permit the release of the accused on
bail. In both instances the test is on a balance of probabilities, the same as in a civil
case.
Mr A was arrested and charged for assault common. He has consulted with
you and advised that he did indeed assault the complainant. He however

claims that it was in self-defence. Prepare a plea of not guilty and incorporate
certain formal admissions setting out your client’s defence.
IN THE DISTRICT COURT FOR THE DISTRICT OF EAST LONDON

HELD AT EAST LONDON
Case No.
In the matter between:
THE STATE
And
Mr A ACCUSED
PLEA OF NOT GUILTY IN TERMS OF SECTION 115 OF THE CRIMINAL

PROCEDURE ACT 51 OF 1977
I, the undersigned,
Mr A
State as follows:
1. I am the accused in this matter and am in my sound and sober senses.

2. I understand the charges against me as contained in the charge sheet.
3. I plead not guilty to the charge of assault common.
4. I admit that on the 5th of January 2010 that I assaulted Mr B, the
complainant, by punching him once in the face with my fist.
5. Prior to this assault Mr B started an argument with me and accused me of
stealing his money.
6. I did not respond to his accusations and ignored him.

7. Mr B became annoyed and took out a knife.
8. He attacked me with the knife and in order to not only disarm him but also
protect myself I punched Mr B as explained above.
9. I had no other option but to act in the manner in which I did.
10. At all times I was acting in self-defence to the unlawful attack of Mr B.
DATED at EASTLONDON this 5TH day of January 2010.
Mr A

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Criminal Court Practice (Q & A) Notes 2017

CASE NO: XXX/XXXX

IN THE MATTER BETWEEN

STATEMENT IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT

Page | 1 Rhulani Patience Ubisi

IN THE REGIONAL COURT FOR THE REGIONAL DIVISION OF XXXXX HELD

CASE NO: XXX/XXX

In the matter of,

STATEMENT IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE

Page | 2 Rhulani Patience Ubisi

NOTE TO MARKERS TO USE THEIR DISCRETION IN SO FAR AS THE

IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF XXXXX HELD AT

CASE NO: XXX/XXX

STATEMENT IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT

Page | 3 Rhulani Patience Ubisi

He is obliged to furnish his full names and address without delay.

The state is entitled to resist access to the statement of witnesses if:

Page | 4 Rhulani Patience Ubisi

The Prosecutor wishes to submit as evidence a written statement made by

In terms of Section 217 and 219A the statement:

 Must be shown to have been made freely and voluntarily

Page | 5 Rhulani Patience Ubisi

a) personal circumstances of the accused;

b) the interests of the community;

c) seriousness of the offence;

d) the possibility of rehabilitating the accused;

e) prevention and deterrence;

f) safe guarding the community.

He is 50 years old, married, has 3 minor children and is employed as a driver.

His wife is disabled and unemployed.

- The accused is 50 years old

- The accused is a first offender

- The accused is married and has three minor children.

- The ages of the children are ?

- The wife of the accused is disabled and is unemployed

- The accused earns R7000.00 per month.

- The accused is employed as a driver and as he derives his income from

Page | 6 Rhulani Patience Ubisi

- The accused has pleaded guilty

- The accused cooperated with the police in the investigations

C. Facts of the matter

- The accused was stopped at a roadblock. No-one was injured.

3.2 What would you submit as a suitable sentence? Furnish reasons to

(i) Retribution (Punishment)

List 5 types of punishment that a District Court may impose.

Name four (4) competent verdicts to a charge of murder.

Page | 7 Rhulani Patience Ubisi

1.1 Can the attorney proceed to represent both accused? (1)

QUESTION 12_________________________________________________ [7]

Page | 8 Rhulani Patience Ubisi

pedestrian, who dies as a result of the injuries sustained in the accident.

The charge sheet states as follows:

3.1 The recognized test (criterion) for recusal. (2)

 Where there exists a conflict of interest.

14.1 Mr M is charged with raping a 15 year old girl. He instructs you to

Page | 9 Rhulani Patience Ubisi

Page | 10 Rhulani Patience Ubisi

What information is Mr Miler obliged to furnish to the police in terms of the

His name and address

Statement of Mr Michael Miler (accused)

Page | 11 Rhulani Patience Ubisi

18.3 In terms of Section 60(11)(B)(a) of the Criminal Procedure Act what

Where there is likelihood that the accused, if released on bail:

(b) Will attempt to evade trial;