Law of Criminal Procedure Notes

Stellenbosch University
LAW OF
CRIMINAL
PROCEDURE
271
2023
Study Unit 1: A Basic Introduction to Criminal Procedure 1
STUDY UNIT 1: A BASIC INTRODUCTION TO CRIMINAL

PROCEDURE
WHAT IS THE LAW OF CRIMINAL PROCEDURE?
THE PURPOSES OF CRIMINAL PROCEDURE
1. Machinery to
enforce the 2. Legitimisation of 3. Enforce criminal 4. Resolve citizen-
overarching goals the resolution of law in line with the state conflict in a
of substantal disputes Constitution legitimate fashion
criminal law
SUBSTANTIAL V FORMAL LAW
Law of evidence
Formal/adjectival
public law
Criminal
South African Procedure
Law (private &
public)
Substantive
Criminal law
public law
1
Substantive Law Adjectival Law

Substantive law = • Comprises legal rules • Puts substantive
determining the criminal law into action
ingredients rights/duties of • Assists in making
individuals and the substantive criminal
state law dynamic ->
Adjectival law = recipe • In criminal law: operate in tandem w/
• determines the e/o
prerequisites for • Measures to enforce
criminal liability the rules of substantive
• prescribes the law
elements of specific • (Criminal) procedural
crimes rules cannot operate in
• Ataches sanctions to isolation from common
breach of prohibitions law and constitutional
rights
SCOPE OF PROCESS
3:
1: Pre-Trial 2: Trial Post-
Trial
• Complaint • Court hears • Appeal
• Arrest case • Review
• Investigation • Delivers
• Bail judgement
Impact of Constitution
Protection of interests & rights of

victims
2
• Criminal procedure regulates

o The duties and powers of the criminal courts and prosecuting authority
o The duties and powers of the police + rights of
suspected/arrested/accused persons + pre-trial procedural matters etc
etc
o The defence + verdict + sentencing + post trial remedies
CRIMINAL JUSTICE SYSTEM
• All the branches of law within the criminal justice system deal primarily with
crime and its perpetrators and form a coherent whole in order to ensure that
there is, in the interests of society, firm but fair enforcement of the rules of
substantive law in accordance w/ constitutional and all other legal
requirements.
DOUBLE FUNCTIONALITY OF CPL: SHASHAPE CASE
Formal
Consequences
• Exclusion of
evidence
Substantive
Consequences
• Claim for damages
FACTS
3
• There was an unlawful search and seizure + unlawful entry of the premises of
Ms Shashape (pp 730 of article)
She was not on the premises
She did not consent (S 22(a) of CPA)
There was no warrant (S 25(1)(a), or S 21(1))
No reasonable grounds to believe that a warrant would’ve been

granted if the police did apply (S 22(b))
Search was not conducted in an orderly manner (S 29)
THEREFORE: violation of her constitutional rights to dignity

and privacy
• Court held that…
o The searching official will have to show that reasonable grounds
existed at the time when he decided to enter and search the plaintiff’s
premises w/out a search warrant
o Since search and seizure is an infringement of our constitutional right
to freedom, it must be done in a just and reasonable fashion
• Court found that…
o The search and seizure occurred outside of the framework of section
22 of the CPA
o Fully liable for the plaintiff’s damages
HOW DID THE COURT DETERMINE THE AMOUNT PAYABLE?
• The court considered the social and financial impact of the unlawful search
and seizure
o The plaintiff in effect became a persona non grata
o She felt unsafe in her own community
• The court took cognizance of the untold misery caused to the plaintiff and her
family
o Evident from demeanour during testimony
4
• Court pointed to her mental + psychological health + the impact on her

constitutional rights (privacy + dignity)
o Impacted her earning capacity and standard of living
DISCUSSION OF JUDGEMENT
• The court’s original judgement was not comprehensive

o Only referred to consent as a ground under S 22(a), but did not refer to
the two-pronged ground under s 22(b)
▪ Was there a reasonable belief by the officers that they would
have been granted a warrant had they applied for one
▪ The delay in obtaining such a warrant would have thwarted the
objective of their search
• Application of the two-pronged approach of s 22(b)
o Information was provided on an anonymous tip
o This information did not comply w/ standards
o No attempt to corroborate information, or establishing whether the
information was based solely on rumour and gossip
o The defendant had failed to discharge its onus in justifying the
warrantless search
"Search and seizure may

irreparably impact the social
standing of a subject and
therefore a suspect's right to
privacy and presumption of
innocence should be
guarded zealously"
CONCLUSION
• Protection of the right to privacy, dignity, freedom and security of the person,
property rights and the presumption of innocence…
5
o All these rights must be weighed against the police’s constitutional duty
to investigate crime and protect the inhabitants of the country
o Maintain balance by carefully considering the objective facts
• All persons subjected to searches must be treated w/ dignity and respect, w/
due consideration of their right to privacy and the presumption of innocence
6
TENSION BETWEEN CRIME CONTROL AND DUE PROCESS
Due Process
Emphasises trial Fair trial rights may

process and be sacrificed to curb
fairness crime
Rules and No limit on state
processes must be power
Crime Control
followed correctly at No due process
every stage (Apartheid?)
Limits state power
• Democratic RSA has a mixture

o In RSA, emphasis is on HOW to conduct the investigation while
simultaneously respecting the accused (as entrenched in the
Constitution)
o We need a good mixture of both models
o Criminal procedure deals with both the guilty and the innocent: not
every accused is guilty + presumption of innocence
• THEREFORE
o Positive: The state is empowered to do certain things (such as respect
the rights of the accused)
o Negative: But their power is also limited (no unlawful search and
seizure)
VICTIM’S RIGHTS
VICTIM PARTICIPATION
S 105(1)(b)(iii) Plea and sentence agreement

CPA
7
Accused may receive a reduced sentence if given information

that helps state’s case against other accuseds
S 300 CPA Compensation order (mostly property theft)
S 179(5)(d)(ii) Decision to prosecute: victim is consulted

Constitution Prosecutor has wide discretion (is there a prima facie case w.r.t.
the available evidence? What is the chance of success?)
Service No absolute right

Charter for
Victims
National Impact statement: victims of sexual offences

Instruction on Life sentences for rape: MUST be taken?
Sexual
Mhlongo
Offences Para
21(3)
S 299A CPA + Serious crimes – (day) parole under correctional supervision

s 75(4)
Corrective
Services Act
S 7 CPA Private Prosecution
VICTIM/WITNESS PROTECTION
S 144(3)(a)(ii) CPA Withholding of names
S 153(2) CPA Testifying in camera (anonymously)
S 158(3)(e) CPA Testifying via CCTV/ other technology
S 170A CPA Intermediary is used where the victim is under the

mental/physical age of 18, or where undue mental stress
would be caused
SORMAA Framework for the protection of sexual offence victims
Witness Protection Under threat of person/group

Act + Prevention of
8
Organised Crime
Act
Prosecution Principles: safety/protection of witnesses

Directives Part 16
CONSTITUTIONAL CRIMINAL PROCEDURE
Read through this part of chapter 1 in the textbook.
The Constitution has had a major impact in the law of criminal procedure – think of S
v Makwanyane, the case which declared capital punishment unconstitutional and
therefore abolished it (s 11 -> Right to Life)
S 2: Supremacy Clause
Bill of
Rights
S 7&8: Rights and Application of the

BoR
S 10: Human Dignity
S 12: Freedom and Security of
Person
S 14: Privacy
S 35: Rights of detained, arrested,
accused (Veldman v DPP)
S 36: Limitation clause
ARTICLE: POVERTY AS A GROUND OF INDIRECT DISCRIMINATION
The THRR (theoretical human resources requirement) formula that’s used to

determine the police allocation nationally and provincially unfairly indirectly
discriminates against poor and Black people.
The court, for the first time, found in Social Justice Coalition v Minister of Police (SJC
Case) that poverty is a ground of unfair discrimination.
LAW RELATING TO DISCRIMINATION
9
• Constitution s 9(3):
o State may not discriminate directly or indirectly against anyone on one
or more grounds, including …
▪ The above-mentioned are the listed grounds
• PEPUDA
o This legislation is enjoined with the Constitution to generally prohibit
unfair discrimination
o These same listed grounds as found in the Constitution are also found
in PEPUDA
o It is possible to, under PEPUDA, allege that unfair discrimination took
place on any ground including grounds other than the ones listed
INDIRECT DISCRIMINATION
• Occurs when the differential treatment due to conduct seems neutral, but the
impact thereof is discriminatory.
o “The effect of apartheid laws was that race and geography were
inextricably linked and the application of a geographical standard may
in fact be racially discriminatory” – Langa DC
UNLISTED OR UNSPECIFIED PROHIBITED GROUNDS
10
Prima facie case proven

by complainant
Respondent must prove
Discrimination did not

take place as alleged Conduct is not based on
(based on prohibited the prohibited grounds
grounds)
Court finds that

Onus shifts: respondent
discrimination did take
must prove that Automatically unfair if...
place = presumption of
discrimination is fair
unfairness
perpetuates systemic
unfairness + undermines
Context human dignity +
adversely affects
enjoyment...
Factors in subsection 3
Reasonably/justifiably
differentiates between
persons
The nine factors:
• Conduct impairs/is likely to impair human dignity

• Impact/likely impact on the complainant
11
• Whether the complainant suffers from patterns of disadvantage or belongs to

such a group
• Nature and extent of the discriminatory conduct
• Whether it is of a systemic nature
• Whether the discriminatory conduct has a legitimate purpose
• Availability of less restrictive or less disadvantageous means to achieve the
same purpose
• Whether and to what extent the alleged discrimination has achieved its
purpose
• Whether and to what extent the respondent has taken reasonable steps to
address the disadvantages that arose due the prohibited grounds and to
accommodate diversity
FACTS OF THE CASE
• SAPS engages in two phases of human resource allocation
PHASE 1: THEORETICAL ALLOCATION
• Calculation of the number of posts per level required to perform the duties
associated w/ police stations
• Ideal distributions given there were no budgetary constraints
• FIRSTLY: crime statistics
o Average incidence of reported crime over 4 years
• One police officer is allocated for an average of 20 reported contact crimes
per month + 1 post for every 25 property related crimes + 1 post for 35
serious crimes + 1 post for 50 less serious crimes
• This baseline is utilized in a demographic analysis
o Influence the incidence of crime in a particular area
o Greater weighting is given to these factors in underdeveloped areas
o EXAMPLE:
▪ Population + geographical size + unemployment + informal
population + commuters + venues and facilities + seasonal influx
+ geographical factors + socio-economic factors (lack of roads)
12
+ informal housing + number of identified gangs + areas where

people assemble + areas under statutory obligation to police
• Experts are consulted: how many investigations of a particular crime a
theoretical detective would be able to conduct each month = theoretical
detective requirement `
o Ratios applied to certain forms of crime
• Underdeveloped areas are favoured then distances needed to travel
o Contingency allowance is factored
PHASE 2: ACTUAL ALLOCATION
▪ Actual allocation informed by available budget

o Disadvantaged areas: one post per 2500 members (instead of 1 per
5000)
▪ SAPS called this a ‘dynamic and flexible process’
▪ SAPS alleges that the allocation, save for the purposeful weighing in favour of
underprivileged areas, is entirely neutral and done w/ reference to objective
and neutral determinants
o Not true in practice
EXPERT EVIDENCE: REDPATH
▪ The unfortunate cycles apparent in areas like

Kayelitsha Significant
underreporting
o This cycle benefits certain areas more of crimes due Less police
to lack of resources
than others police
resources
o These informal settlement areas were
usually understaffed
▪ The budget could not accommodate the THRR requirements for police
stations
▪ Unlike formal areas, only 15% of the factors weighed in favour of informal
areas
o Formal areas have a potential additional weighting up to 205%
▪ Poverty and informal housing influence this disproportionality
o Black people, historically, tend to live in informal housing -> lower level
of service provision -> lower levels of policing
13
HOW THE COURT DEALT WITH THIS ISSUE
▪ Applicant relied on 2 grounds of discrimination: race + poverty

o Race -> specified
o Poverty -> Unspecified
▪ Had to satisfy the court that the unspecified ground of poverty 1.
Has the effect of causing or perpetuating systemic disadvantage
2. That poverty undermines human dignity and 3. Poverty has
the effect of negatively impacting on someone’s ‘rights and
freedoms in a serious manner that is comparable to
discrimination on a ground in paragraph (a)’
▪ The ConCourt has previously been in favour (albeit not expressly) that poverty
is a ground for discrimination
o This alludes to the intersectional nature of discrimination, which was
present in the Harksen case
▪ ‘[these grounds] relate to immutable biological attributes or
characteristics, in some to the associational life of humans, in
some to the intellectual, expressive and religious dimensions of
humanity, and in some cases to a combination’
o I.e., these grounds are interrelated and can overlap
▪ PEPUDA contains a directive regarding ‘socio-economic status’
o ‘a social or economic condition or perceived conditionon of a person
who is disadvantaged by poverty, low employment, status or lack of or
low-level educational qualifications’
▪ Soobramoney: poverty in RSA is systemic due to historical context of the
country
o New Clicks: poverty is an affront to human dignity
IMPORTANT CONCEPTS IN CRIMINAL EVIDENCE
PASSIVE DEFENCE RIGHT
▪ The right to remain silent + the right against self-incrimination

▪ A person may, theoretically, remain passive throughout the entire process
14
• Onus is on the state to prove guilt beyond reasonable doubt

• Suspect: person not yet charged; accused: person who has been
Presumption of charged
Innocence • Since a conviction is an official announcement of legal guilt after a
trial, but that is not affected by factual or moral guilt - only legal guilt
counts
• Onus is on state to prove legal guilt beyond a reasonable doubt

Burden and Standard • This heavier onus is because of the presumption of innocence
of Proof • i.e. an accused person does not have to prove that they are
innocent
• Neither the prevalence nor the offensiveness of the crime can be
Presumption and allowed to change the presumption of innocence
Nature of Crime • HOWEVER: not saying anything will mean that prima facie evidence
won't be disrupted and it might harden into conclusive proof
Right to Remain Silent • Constitution: s 35(1)(a) + S 35(1)(c) + S (35)(3)(h) & (j)
and Privilege against
Self-Incrimination • The accused is expected to participate in their defence
ACCUSITORIAL V INQUISITORIAL
Main difference lies in the functions of the parties, i.e. the judicial official, prosecuting
authority, accused/defence, and the victims
Inquisitorial
Judge is the master of Judge: role of detached umpire,

does not become partial or lose
proceedings perspective
• Actively conducts and Police: primary investigative force
controls the search for truth (hand over evidence)
Prosecution: becomes dominis litis
• dominates the questioning and decides on the appropriate
of witnesses and the charges and court
accused The case takes the form of a
• After arrest: questioned by contest between two theoretically
Accusatorial
investigating judge equal parties who do questioning,

lead their own witnesses and cross-
examine the opposition's witnesses
All parts need to work together and
perform their duties properly
15
SA COURTS TODAY
▪ Presiding judge/magistrate
o With or without assessors
▪ Experts or people with interest in case
▪ Lower courts: prosecutor; Higher courts: state advocate
▪ Accused w/ or w/out legal representation
o Does not receive automatically
▪ No jury
SOURCES OF CPA
16
Constitution
• S 35: rights of arrested, detained
or accused persons
National Prosecuting
Criminal Procedura Act
Authority Act
Other Statutes
• Child Justice Act (amendment act:
raised age of criminal capacity to
Common law and Case 12)
Law • Extradition Act
• Criminal Law Amendment Act
• Legal Aid South Africa Act
REMEDIES IN CPL
17
Habeas Corpus
• Evidence why a person is imprisoned

• Legal interest in liberty
Action for Damages
• Unlawful conduct by state (Shasape)
Interdict
• Prohibits (unlawful) action
Mandamus
• Force state to do something, eg. provide particulars of arrest
Exclusionary Rule
• Evidence may be excluded from trial if seized unconstitutionally
Public Protector; Human Rights Commission; Independent Complaints

Directorate
Informal Remedies
Constitutional Mechanisms
18
Study Unit 2: Criminal Courts and Aspects of Jurisdiction 19
STUDY UNIT 2: CRIMINAL COURTS AND ASPECTS OF

JURISDICTION
Jurisdiction is the authority of a court to hear and decide a dispute or matter.
ASPECTS OF JURISDICTION
• Importance of substantive v procedural courts
o Example, a diplomat may have immunity and therefore no sentence

against them could be enforced
• Personal/nationality
o The impact of immunities (s 110 of the CPA)
o Limited active personality principle
o R v Holm; R v Pienaar
• Territoriality
o Extraterritoriality
▪ Crimes committed internally (in the Republic) can be tried

whether the accused is a citizen or a foreigner
▪ Extraterritorial: crimes committed abroad against RSA (this is

where the Rome statute comes in)
o Example: implementation of the Rome Statute of International Criminal

Court 27/2002
o EXCEPTION: S V KRUGER
▪ Theft is seen as a continuous crime
▪ Therefore, the accused may be prosecuted anywhere where

they are found w/ the stolen goods
▪ The question is therefore if theft is a crime (in the area where

the thief was caught), and it is not a question of jurisdiction
19
• If the thief stole a painting in country A, and flees to

country B where they are caught, if theft is a crime in
country B then the thief may be prosecuted
• However, if the thief manages to flee to country C and

theft is not a crime in country C (highly unlikely), then the
thief cannot be prosecuted in country C
o International crimes: courts have universal jurisdiction
• Universal
o Certain crimes, like torture, is a crime against humanity
o National Commission of SA Police v SA Litigation Centre
▪ Yes, we have a duty to investigate crime
▪ SAPS Act + Constitution
SUBSTANTIVE V PROCEDURAL
SUBSTANTIVE
• Types of crimes
• Not all courts can hear all matters
20
HIGH REGIONAL DISTRICT

COURT COURT COURT
• Original • Hears all • Substantive
jurisdiction crime jurisdiction
regarding all except regarding all
crimes treason crimes
• Doesn't • Treason,
need murder,
empowering rape, and
statute compelled
rape
PROCEDURAL
• Enforcement of the law, which is known as formal jurisdiction
21
•What happens if a diplomat commits an offence in another country?

•S 110A CPA
•In theory, they won’t be prosecuted in the other country
•They will become known as a PERSONA NON GRATA and be sent back to their
country
Diplomatic Immunity •RSA court will have jurisdiction as if the crime took place within its jurisdiction
•It must be a crime within our jurisdiction
•The NDPP must instruct that prosecution takes place
•The Diplomatic immunity attaches to you as a person, but also has a procedural affect
•Giving power to the court to enforce the law against a person, i.e. conferring procedural
jurisdiction to a court as if the crime was committed in its jurisdiction
• All courts cannot impose sentences as they want to -> minimum sentencing must be
applied
• Regulated by CPA + general law of an act
Sentencing • CJA limits...
•HC: any sentence (fine of any amount, imprisonment up to life)
•DC: fine < R120 000, imprisonment < 3 years
•RC: fine < R600 000, imprisonment < 15 years
• S 110 of the CPA
• Accused before a court that has no jurisdiction
• This article grants territorial jurisdiction to a court which otherwise does not have
territorial jurisdiction over the matter
•and would therefore not be able to enforce the law
Fictional Jurisdiction • It is not substantive jurisdiction that is given
• A court is deemed to have jurisdiction when the accused pleads to a charge and does
not plead that the court has no jurisdiction
•THEREFORE: accused neglects to say there is no jurisdiction, the matter will continue
if it goes on
•only relates to territorial jurisdiction
EXAMPLES
• 28/02:
Murder Gauteng
Brought before
the HC in • Does not
plead 'no
Mahikent (NW jurisdiction'
Province)
• Territorial
SA 110 CPA jurisdiction
conferred
=/= District • No
substantive
court jurisdiction
22
• Ambassador
Murder in US
Returns to • US cannot
prosecute
SA
SA 110A • Territorial
jurisdiction
CPA conferred
• Does not
Procedural relate to
jurisdiction substantive
jurisdiction
PERSONAL
• Natural v legal persons
• Impact of age
o Diversion of case, other treatments are sought
• S 110A CPA
o Notwithstanding any other law, any South African citizen who commits
an offence outside the area of jurisdiction of the courts of the Republic
and who cannot be prosecuted by the courts of the country in which the
offence was committed, due to the fact that the person is immune from
prosecution as a result of the operation of the provisions of … and that
person is found within the area of jurisdiction of any court in the
Republic which would have had jurisdiction to try the offence if it had
been committed within its area of jurisdiction, that court shall, subject to
subsection (2), have jurisdiction to try that offence
• R v Holm, R v Pienaar
23
o ‘so far as high treason committed by a subject was concerned there

existed no international custom … which debarred a state from trying
and punishing an offender no matter where the offence had been
committed’
TERRITORIALITY
• International borders
Theft is known as a continuous
crime
o S v Kruger oThe crime continues for as long as the
accused…
▪Is in possession of the stolen property
▪ Crime in both ▪Has the intention to steal/permanently
deprive someone of their ownership
countries? Still in
possession? Still
intention to steal?
o Has to occur within the borders of RSA, EXCEPT FOR THEFT
o Court where the crime happened is the court with jurisdiction
• Internal borders
EXTRADITION
• One country requests that you deliver someone present in your country
o Extradition Act 67 of 1962
a) Extradition treaties
b) Ad hoc extradition
• Male captus bene detentus
o ‘ill caught, well detained’
o Our Roman-Dutch legal heritage said that the prosecution of someone

is disallowed where they have been unlawfully brought into the
jurisdiction of the court
24
o Concerns sovereignty and human rights considerations
o S v Ebrahim 1991
• Substantive jurisdiction and the nature of the offence
o S v Kruger 1989 -> Theft as a continuous crime
• Impact of human rights on extradition
o Mohammed v President RSA, 2001
▪ RSA government must first seek assurance from the country

they are deporting that the death penalty will not be applied
▪ S v Makwayane: no one may be exposed to the death penalty
▪ This protection extends to everyone within our jurisdictional

territory
o Minister Home Affairs v Tshebe 2012
▪ Court could not go against Mohammed
▪ However, the court didn’t lay down absolute principle barring the
RSA government from extraditing such a person even if they did
not get assurance
25
NATIONAL COMMISSIONER OF POLICE V SOUTHERN AFRICAN

HUMAN RIGHTS LITIGATION CENTRE 2015 (CC)
• Where an international crime is committed outside of RSA, does the

suspected perpetrator need to be present in RSA for the police to investigate
the crime?
o The presence of the suspect is not a requirement for investigation
under international or South African law.
• Whether the Constitution dutied the police to investigate the crime against
humanity of torture?
o It did: S 205(3), read w/ s 4(1) of the ICC Act and s 17D(1)(a) of the SA
Police Service Act
1. Whether there were limits on the police investigating international crimes
committed outside of South Africa by and against foreign nationals? – yes
a. RSA must have a substantial connection to the matter
b. Principle of non-intervention in the affairs of another state had to be
observed (subsidiarity principle)
i. Investigation was only permissible if the foreign state were
unwilling or unable to prosecute
ii. Investigation was confined to the territory of the investigating
state
c. Investigation had to be practicable
• Was it reasonable for the police to decline to investigate? – no, the police
acted unreasonably
S V EBRAHIM (ONLINE SUMMARY)
In Ebrahim, two men identifying themselves as South African police officers seized a
South African member of the military wing of the anti-apartheid African National
Congress in Swaziland in December 1986. Ebrahim was bound, gagged, blindfolded,
and brought to Pretoria and charged with treason. Swaziland did not protest this
abduction. Ebrahim argued that his abduction and rendition violated international
law, and that the trial court was thus incompetent to try him because international
law was a part of South African law.
26
Invoking Roman-Dutch common law, the Court concluded that it lacked jurisdiction to
try a person brought before it from another state by means of state-sponsored
abduction. These common law rules embody fundamental legal principles, including
"the preservation and promotion of human rights, friendly international relations, and
the sound administration of justice." The Court continued:
The individual must be protected from unlawful arrest and abduction,

jurisdictional boundaries must not be exceeded, international legal
sovereignty must be respected, the legal process must be fair towards
those affected by it, and the misuse thereof must be avoided in order to
protect and promote the dignity and integrity of the judicial system. This
applies equally to the State. When the State is itself party to a dispute,
as for example in criminal cases, it must come to court "with clean
hands" as it were. When the State is itself involved in an abduction
across international borders as in the instant case, its hands cannot be
said to be clean.
The Court also noted that "the abduction was a violation of the applicable rules of
international law, that these rules are part of [South African] law, and that this
violation of these rules deprived the trial court competence to hear the matter." In a
subsequent civil proceeding, Ebrahim was awarded compensation for the
kidnapping.
27
Study Unit 3: The Prosecution of Crime 28
STUDY UNIT 3: THE PROSECUTION OF CRIME
INTRODUCTION
• Prosecution of crime entails an officially enforced system of criminal justice in

terms of which the guilt of an alleged perpetrator could be established, an in
terms of which punishment could be meted out without the direct involvement
of the individual victim concerned -> legality / due process
3. As soon as the state

2. Formation of organised became responsible for the
1. Societies became
forms of government and enforcement of criminal
progressively more
the development of law, it was no longer
civilised
political units. possible to tolerate self-
help.
4. The due and proper Constitution s 179(2)

adminitration of criminal • Prosecuting authority has the
5. In most legal systems, power to institute criminal
justice requires that the proceedings on behalf of the state
there are also victimless
state should in principle and to carry out any necessary
crimes functions incidental to instituting
shoulder the prosecutorial
criminal proceedings
task. • S20 of the NPA
PUBLIC AND PRIVATE PROSECUTIONS
• Most states do not adhere to the principle of compulsory prosecutions

o Prosecuting authorities are vested with a discretion
o An official refusal to prosecute might occasionally aggrieve an
individual who is a victim -> locus standi
• In order to avoid a deadlock like this, some states, in addition to their system
of public prosecution, has also created a system of private prosecution
o The aggrieved individual may, in certain circumstances in their
personal capacity, proceed against the alleged perpetrator in an
attempt to prove the latter’s guilt beyond reasonable doubt in a court of
law and have them punished within the ambit of legitimate procedures
28
which were created by the state and which were also available to the
state had it not declined to prosecute
• Example: Hendricks v Asmal
CRIMINAL PROSECUTIONS AND CIVIL ACTIONS
• General principle: crime is a violation of public interest

o Punishment is sought on behalf of society, and only in an incidental
way in respect of an individual
• Therefore, the primary duty is on the state to preform the necessary
prosecutorial function
o Does not mean that the prosecution deprives the injured party of any
civil remedies
• Private law matter
o Doesn’t involve punishment, but is a civil action between two
individuals (plaintiff and defendant)
o A civil case is possible irrespective of the outcome of the criminal case
• S 342 of the Act: a conviction/acquittal in respect of any offence shall not bar
a civil action for damages at the instance of any person who has suffered
damages in consequence of the commission of that offence
o Known as the “Rule in Hollington”
o Remember: the onus for a civil action is much lighter than for criminal
proceedings (balance of probabilities v beyond reasonable doubt)
• Exception: criminal court has ordered a convicted accused to pay
compensation or to return stolen property -> cannot be compensated twice in
respect of one and the same loss
PROSECUTING AUTHORITY
DUTY TO PROSECUTE
PRIMA FACIE CASES
29
• “the allegations, as supported by statements and real and documentary

evidence available to the prosecution, are of such a nature that if proved in a
court of law by the prosecution on the basis of admissible evidence, the court
should convict.”
PAR 4(C) OF THE NDPP PROSECUTION POLICY
• Reasonable prospect of success

• Is it in the public interest to not prosecute?
• 3 factors need to be considered when deciding to not prosecute
o The nature/seriousness of the offence
o Interest of the victim in the broader community
o Circumstances of the offender
▪ Weight of everything depends on the circumstances of the case
▪ Also taken into account at bail hearing or when sentencing
MALA FIDE PROSECUTION?
• Freedom Under Law, para 37

o Prosecution may not be mala fide, illegal, irrational, or have any ulterior
motives
• NDPP v Zuma
o Wrongful only if there is no case/basis for prosecution
EXEMPTIONS TO PROSECUTIONS
Triviality Age Tragic personal Plea Bargain

• De minimis non curat lex • Juveniles: below 12 circumstances • Sentenced and convicted
• At prosecution state or • Diversion • Not in public interest • No formal trial
substantive stage
• We, however, can’t knowingly allow a pattern of non-prosecution to form and

then decide to prosecute
30
• Constitution, s 9(1): discretionary prosecution does not imply discriminatory

prosecution
WITHDRAWAL OF A CHARGE V STOPPING OF PROSECUTION

S 6(a) CPA: withdrawal
Before pleading After pleading, before

Not same as acquittal conviction
May be prosecuted again Stopping = acquittal
S 6(b) CPA: stopping

on the same charges DPP's consent is needed
Freedom Under Law v Not the same as
NDPP – “charges based temporarily removing case
upon ‘formidable evidence’ from the role
can only be withdrawn on
the basis of compelling
reasons.”
• Stop: autrefoi acquit

o Special plea that is raised: ‘I have been previously acquitted, you
cannot charge me again”
o Withdrawal =/= permanent
‘PERMANENT STAY OF PROSECUTION’
• Basis: s 35(3)(d) of the Constitution

o Every accused person has a right to a fair trial, which includes the right
to have their trial begin and conclude without unreasonable delay
• HC decision/application
o Accused asks court to put a stop
• Drastic remedy
o Not in the CPA
• Must be done before commencement of trial
• Not in terms of s 342A of the CPA
o This section covers delays during trial
• Bothma v Els, Rodrigues
31
PRESCRIPTION
• Period in which a victim can still report to the police to prosecute
Prescription: S 18 CPA
After 20 years from the moment of commission of the crime (S 18 CPA)
Exceptions Murder, rape, etc never prescribe
S 18(1)(f) CPA: any sexual offence in

terms of common law or statute
(Prescription in Civil and Criminal
Matters Amendment Act)
Bothma v Els 2009 39 years after prosecution
Private prosecution -> permanent stay

of prosecution -> denied
Evidence and memories fade: difficult,

but no reason to not prosecute
Considerations (S 342A read w/ s 18)
THE DECISION TO PROSECUTE AND THE ROLE OF THE NDPP
• In South Africa, we don’t follow a rule of compulsory prosecution

o However, we MUST prosecute prima facie case
o Unless there is a compelling reason not to
• Freedom Under Law v NDPP
o “charges based upon ‘formidable evidence’ can only be withdrawn on
the basis of compelling reasons.”
• Carmichele v Min of Safety and Security
o Prosecutors have to respect the victims -> there is a duty on the state
to protect
o Paras 73 and 74
o “In considering the legal duty owed by a prosecutor either to the public
generally or to a particular member thereof, a court should take into
account the pressures under which prosecutors work, especially in the
32
magistrates’ courts. Care should be taken not to use hindsight as a basis

for unfair criticism. To err in this regard might well have a chilling effect
on the exercise by prosecutors of their judgment in favour of the liberty
of the individual. There are far too many persons awaiting trial in our
prisons either because bail has been refused or because bail has been
set in an amount which cannot be paid. We can do no better in this
regard than refer to the following passage which appears in the United
Nations Guidelines on the Role of Prosecutors:
“In the performance of their duties, prosecutors shall:
(a) . . .
(b) Protect the public interest, act with objectivity, take proper
account of the position of the suspect and the victim and pay
attention to all relevant circumstances, irrespective of whether
they are to the advantage or disadvantage of the suspect; . . .”
o That said, each case must ultimately depend on its own facts. There
seems to be no reason in principle why a prosecutor who has reliable
information, for example, that an accused person is violent, has a grudge
against the complainant and has threatened to do violence to her if
released on bail should not be held liable for the consequences of a
negligent failure to bring such information to the attention of the Court. If
such negligence results in the release of the accused on bail who then
proceeds to implement the threat made, a strong case could be made
out for holding the prosecutor liable for the damages suffered by the
complainant.”
33
DIVERSION OF CHILD OFFENDERS
CHILD JUSTICE ACT
• Diversion procedure is given in detail

• Came into operation on 1 April 2010
• Child: under 18
• Chapter six of the CJA: minor offences
• Schedule 3 offences: serious offences
• Child and adult co-perpetrators -> court must apply CJA for the purposes of
the child
• NB: s 97(4) CJA: NDPP directives
• CJA aims for…
o Separate criminal system for children, underpinned by the values of the
Constitution (best interest of the child, s 28)
o Restorative justice, along w/ responsibility for their actions
o Emphasis on reintegration and rehabilitation
• Balancing act
Interest of
children
Society + due
regard to victims
1: DIVERSION
• “means diversion of a matter involving a child away from the formal court
procedures in a criminal matter by means of the procedures established by
Chapter 6 and Chapter 8 [of the CJA]”
o Point of departure: Keeping a child away from the formal justice system
• Chapter 6 procedures -> minor offences
34
o Before preliminary inquiry

o Theft, fraud, assault (no intention to cause grievous bodily harm),
public indecency
o When is it appropriate?
▪ When accused can admit responsibility (and is not influenced to
do so)
▪ Child (and parent/guardian) consents
S 53(1)(a):
written/oral apology
Before preliminary
inquiry
Chapter 6 (schedule S 53(1)(b): family
1 offences) time order
Level 1 diversions
S 53(1)(c): a
compulsory school
attendance order
S 53(1)(j): referral to
counselling/therapy
DIVERSION INVOLVING SCHEDULE 3 MATTERS
• Treason, sedition, murder, extortion (with aggravating circumstances),

kidnapping, robbery, various sexual offences under SORMAA
• Diversion -> only under exceptional circumstances
o Eg, child is very young; victim prefers diversion; undue influence on
child to commit an offence
SOME BASIC PRINCIPLES
35
a. Diversion must be made by an order of the court
b. Prosecutor does not have to provide reasons for decision not to

divert
c. In cases of family group conference or victim-offender mediation,
the victim must consent (restorative justice aims)
d. Prosecutor: establish whether child has been previously diverted
e. When child has complied w/ a diversion order, the prosecutor

must receive a compliance report
f. Non-compliance w/ (e) -> prosecutor can decide to prosecute, but
must take the advice of probation officer into account
2. CRIMINAL CAPACITY
• Affects the decision of whether or not to prosecute

• Amendment of common law
• s 7(2) CJA: Rebuttable

presumption of lacking
• s 7(1) CJA: Immune criminal capacity
from prosecution
• Irrebuttable 12-14 • State must prove
beyond reasonable
<12 presumption doubt
• What happens?
Counselling, support
services, etc
years • General test for
criminal capacity:
• Distinguish between
right and wrong and
act in accordance
• General test: if found that the child doesn’t have criminal capacity, they are
treated the same as a child under 12 years
36
Educational
level
Nature of
offence, impact
on victim,
interest of
Factors community
in
decision Prospect of
establishing
criminal capacity
Cognitive
abilities, age and
maturity
WITHDRAWAL OF CASES
• Cases should not be withdrawn without considering the possibility of

intervention
• S 28 of the Constitution: the best interest of the child
PRIVATE PROSECUTION
• S 7 and 8 of the CPA

o S 7: natural persons
o S 8: juristic persons
• Bothma v Els
• Hendricks v Asmal
• Not applicable to diverted matters in terms of the CJA
S 8 CPA
• Quasi Private prosecution

o Private prosecution: certain statutory bodies
o Prosecution still under the final direction of the DPP
o Limited application
• Example
o S 63(1)(i) Legal Practice Act
37
▪ Prevention of Cruelty to Animals Act

▪ NSPCA v Min of Justice and Constitutional Development -> the
state has the first say in prosecuting cases of cruelty against
animals
S 7 CPA
• Certificate nolle prosequi

o DPP is the only one who may sign off on the certificate
o Confirms that the director or their subsidiaries have investigated and
studied the affidavit statements in the docket and have declined to
prosecute the matter
o No discretion to refuse anyone who asks for the certificate -> they can’t
investigate whether the person asking has locus standi
o Can refuse to issue certificate to juristic person (NSPCA case)
o Right to privately prosecute is an informal measure to counter state
incompetence or corruption (safety valve)
o Manner of participating in the criminal justice system -> victim
participation
• Constitutional rights – S 35(3)
o Still retained -> as if prosecuted by a public prosecutor -> Hendricks v
Asmal
o Zuma paras 12-13: if someone attempts to privately prosecute you who
isn’t properly empowered to do so…
▪ Right to dignity, freedom and security of person (expected to
appear in court for frivolous trial, right to equality (under law)
• Same as public prosecution, except no state prosecutor
• NSPCA case
S 7: LOCUS STANDI
38
Arising from 'injury' due Not only victim has this Minor or mentally ill
curator
Substantial and
peculiar interest
Legal guardian or
next of kin
Husband, wife, child,
to commission of substantial interest, and
offence next of kin may institute
Not physical, could be proceedings on behalf
privacy or dignity etc of the victim
Phillips v Botha: court Like where child is a
has ability to prohibit victim, or the victim is
vecatious and malicious deceased
prosecutions and privae Hendricks v Asmal
persons shouldnt abuse
the system to satisfy
personal vendettas ->
restrictive interpretation
LOCUS STANDI IN DISPUTE
• Private prosecutor has onus to prove locus standi

• Statement or affidavit
• Singh v Minister of Justice
o No proper attempt by proper prosecutor to show that they were a
person falling under S7 - affidavit failed to prove this
o Made impossible for court to assess that this was such a person
o The private prosecution could not go ahead
o The DPP may not question locus standi and must issue the certificate,
but the court may question it, and the alleged accused may question it
PRESCRIPTION
• In principle, 3 months after certificate nolle prosequi was issued

• Juristic persons have no locus standi – NSPCA case
COST AND SECURITY
• R2500 deposit at Magistrate court w/ jurisdiction -> guarantee that you will
prosecute matter w/out undue delay
o If you don’t start prosecution in 3 months -> forfeit money
o Don’t appear on certain court dates -> forfeit money
• Court may require you to pay an amount for the accused for their defence
• If court finds that the state should’ve prosecuted the matter itself -> court can
order that the state pays the cost of prosecution
39
INTERVENTION BY STATE
• If accused pleads guilty -> state must take over the case
• Although no longer dominis litis -> little power is retained = can still apply to
take over the case (MUST take over where pleads guilty)
TECHNICAL ASPECTS: S 7
• Prosecutor v accused
• Process documents remain the same
• Indictment/summons
o Read over para 5.3.1
CASE SUMMARIES
ZUMA CASE: PARA 12-13
40
41
S V DUBAYI
• Facts
o Complainant did not want to proceed w/ the case against the accused
o Court, however, instructed the prosecutor to proceed w/ the
prosecution as a dangerous weapon was used
o The case was sent on automatic review
• S 163 of the CPA: by virtue of what authority did the court adopt this
procedure?
o i.e. putting the charge to the accused for plea immediately before the
state closed its case
• Court a quo:
o Yes, the procedure they used wasn’t in the CPA, and they should’ve
put the charge to the accused, but the administration of justice was not
defeated -> the accused would’ve pleaded guilty and been convicted
anyways
• Legal question:
o What right the magistrate had to instruct the prosecutor to proceed
against the accused? NONE
• Prosecutor is the dominis litis
o It is within their power to withdraw a charge
o No court can prevent them, no court can force them
• What the judge did…
o Didn’t regard the previous proceedings as part of the trial
o Then again decided that the accused be tried
42
o Accused was called to plead -> pleaded guilty

▪ All proceedings prior to the accused’s plea amounts to some
sort of enquiry BY the magistrate as to whether the accused
should be tried or not!
o Accused was not called upon to plead in terms of s 163 of the CPA
• The accused was not represented, and only after the court had assessed the
evidence and decided that the accused be tried was he called upon to plea
o Accused must’ve been overawed by the procedure -> possibility that
they pleaded guilty because, in their mind, the magistrate had already
found them to be guilty
o Accused chose to give evidence under oath after they had already
pleaded -> might’ve acted in self-defense
• The conduct of the proceedings were grossly irregular, the accused was
prejudiced, and the conviction and sentence are set aside
CARMICHELE V MINISTER OF SAFETY AND SECURITY
Facts
• B had previous convictions and appeared in court on a charge of rape
• He was released by the magistrate on his own cognisance
• G became aware of this and informed the investigating officer, and thereafter
discussed B’s position w/ the senior public prosecutor
o Prosecutor said nothing could be done unless B committed another

offence
• After B’s released (where the director of public prosecutions did not instruct
the prosecutor to oppose bail), B snooped through G’s things and attacked
her
o This is after G spoke to the senior prosecutor again
• G instituted a delictual charge for injuries sustained during the attack
43
o Members of the police and the public prosecutors involved had owed
her a legal duty to act in order to prevent B from causing her harm and
that they had negligently failed to comply therewith
• In the Constitutional Court, G held that the police and prosecutors owed her a
duty to safeguard her rights to life, protection of her dignity, freedom and
security and privacy
Case against the Prosecutors
• S 108(1) of the IC provided only that the authority to institute criminal

proceedings on behalf of the state vests in the Attorney General
o S 108(2): the powers, duties and functions are prescribed by law
• Prosecutors have always owed a duty to carry out their public functions
independently and in the interests of the public
o Prosecutor has a duty to place before the court any info relevant to the
exercise of the discretion w/ regard to the grant of refusal of bail
• United Nations Guidelines on Role of Prosecutors
o Protect the public interest, act w/ objectivity, take proper account

of the position of the suspect and the victim and pay attention to
all relevant circumstances, irrespective of whether they are to the
advantage or disadvantage of the suspect
• Each case must ultimately depend on its own facts
• No reason why a prosecutor, who has reliable information (that an accused is

violent) should not be held liable for the consequences of a negligent failure to
bring such info to the attention of the court
Legal issue
• Whether, in the special circumstances of this case, it should itself decide if the
law of delict should be developed to afford the applicant a right to claim
44
damages if the police of the prosecutor were negligent, or whether this should
be left to the High Court or the SCA to determine
What Should the Court Do?
• An order for absolution from the instance = make at end of plaintiff’s case
where a court could not or might not find for the plaintiff
o Ordinarily, in the interest of justice to bring the litigation to an end in

such circumstances
• Minister Law and Order v Kadir: approach courts must adopt when developing
the common law
o Decisions like these can seldom be taken on a mere handful of

allegations in a pleading which reflects the facts on which one of the
contending parties relies
o Interplay of factors must be considered
o If these factors do not prima facie support the legal duty contended for,
there is no reason why the exception should not succeed
▪ Relevant to applications for absolution from the instance in trial

where the court is asked to develop the common law i.t.o. s
39(2) of the Constitution
• It is the exercise of the discretion of the trial judge to refuse absolution
o The facts on which the decision was made can be determined after
hearing all the evidence and made in light of all the circumstances
o Helps to avoid determination of issues on basis of the hypothetical,

creates a complete record, and the dispute can be determined with
finality
• Not desirable that a case as complex as this should be dealt with on the basis
of what the facts might be rather than what they are
Order
45
Appeal is upheld, and the matter is referred back to the High Court to continue with
trial.
46
Study Unit 4: Legal Representation 47
STUDY UNIT 4: LEGAL REPRESENTATION
LEGAL PROFESSIONAL PRIVILEGE
• A lawyer is supposed to assist you in enforcing your other rights
• You cannot enforce the right to a fair trial w/out effective legal representation
• In RSA, we did not always have this right to legal representation
• Today, there is a common misconception, as offenders are not automatically

represented
• The meaning is not defined
• Case law has dictated that at least where an offender is
o Charged with an offence that would lead to imprisonment
o Cannot afford legal representation on their own
• There is no choice in legal representation, but this doesn’t mean that you
aren’t entitled to effective legal representation
ATTORNEY-CLIENT PRIVILEGE
• Not an employment relationship
47
• Contractual mandate like a plumber or an electrician
• Instruct the legal practitioner to defend in a certain manner
o Ethical aspects and
• Legal professional prigilege (Thint)
• In south Africa, we don’t have all these privileges
o We do have a right against self-incrimination and the marital privilege
LEGAL PROFESSIONAL PRIVILEGE - THINT
• A rule of the common law
• Communications are protected against disclosure, provided that certain things

are met
• Entrenched rule that only arises in certain circumstances where all 5

requirements are met:
Privilege
Communicat
Acting in Advice not to must be
ion for
professiona Consulted in facilitate the claimed and
purposes of
l capacity confidence commission belongs to
obtaining
@ time of crime the client
legal advice
only
LEGAL REPRESENTATION
• Not an employment relationship, but made on a contractual basis
• Ethical aspects, but also effective representation
S V MOFOKENG
• Distinguishes different role players
48
• The court explains how legal representation differs from that of the prosecutor
and the judge
• The accused was found guilty of robbery w/ aggravating circumstances and

appealed
• The right to effective legal representation includes the right to have legal
representation at the appeal phase (court concurred)
• Question was whether legal representation must effective in substance

and form
o Or must they be effective in their duty
• The right to legal representation means that you must act in the best
interest of the client, ensuring that justice is still maintained
• You mustn’t get involved in illegal evidence
o Such as planting evidence, intimidating witness for client
• Court evaluated the role of the prosecutor and defence attorney
Defence Attorney Prosecutor
Would have to defend client ethically and Expected to present all the relevant facts and
effectively, but is not expected to represent evidence, even if it is destructive to the state’s
all evidence and facts that might be case.
destructive to client’s case
A defence attorney often selects the most

advantageous route for the client and does
not focus on facts that are destructive to the
case, but may not freely make submissions
that client is guilty (improper conduct)
49
Also evaluate the strengths and weaknesses

and then advise client on best possible route
• A judge is required to evaluate the strengths and weaknesses of a case and

give a finding
• If a plea deal is offered to client, and the attorney advises the client to not take
it so that the attorney can get more money, this is not ethical
• A mandate exists between attorneys and clients, and attorneys cannot make
confessions on behalf of their client
• In the case, attorney misunderstood the role, and made submissions that
were destructive to the case
• Duty and obligations were violated
PRE-TRIAL STAGE
• Constitution s 35(2)(b)
o Detained persons have the right to legal representation of their choice

and to be informed of this right
o Extends to suspects – S v Orrie
o Identification parades: suspects should be given an opportunity to

obtain a legal representative to be present
• You are considered to be detained from the moment you are arrested
o This means the right exists at all and any stage
• You must be informed of this right in a manner that the accused

UNDERSTANDS
o And must be reminded of this right at any stage
S V ORRIE
• Suspects were questioned by police
50
• Question: where they entitled to invoke their rights i.t.o. s35 of the
Constitution?
• The court took a purposive interpretation, and looked at the broad goals of
the legislation
• Pre-trial rights, as conferred by s 35, also applies to suspects
• Took a holistic view of the necessity to have legal representation
• This need also applies to those who are only suspects
• The right to inform someone of legal assistance starts at arrest
• No reason to limit this right
• Though it is not formally extended under the constitution, the police are
instructed to inform suspects of this right
CONSTITUTION, S 35(2)(C)
• Legal representation assigned by the state at the state’s expense
• Test: would substantial injustice arise otherwise?
o i.e. face prison time etc
• Decision lies w/ the legal aid board and the court if you are to be provided
legal representation at state expense
S V LUSU
• Question of giving someone an opportunity to obtain legal assistance
• Confirmed the principle that the accused must have reasonable opportunity to
obtain legal assistance
• The accused applied to have the case postponed as he did not have legal
assistance and he wanted to obtain it
• Court a quo denied ; the prosecutor alleged that this application was a stalling
tactic
51
• Alleged that even if the accused had applied for legal representation, they
would’ve failed
• The magistrate had taken over the role of the legal aid board and made the
decision to grant or deny legal representation, which lies only with the Board
• The denial of postponement was a breach of the accused’s right to a fair trial,
and all the trial’s proceedings were declared irregular
DURING THE TRIAL
• Constitution s 35(3)(f): to choose, and be represented by, a legal practitioner,

and to be informed of this right promptly
• Right to apply for legal representation at state expense
• Judicial officer has a duty to inform the accused that they have the right to
legal representation, and where they accused says they do not want or need
it, the court may ask why
o To ensure that the accused understands what they are saying, and
that they are denying this right
• The accused also has the right to legal representation in their own language
o If someone cannot be appointed, then an interpreter must be appointed
• Failure of informing them could invalidate the whole proceeding
o Case law says no: if they would’ve been convicted in any case, then
the trial would not be irregular
• If the accused wishes to defend themselves
o The court must ask why
o Any misunderstanding by the accused must be cleared by the judicial

officer
S V SIBIYA
52
• Question: Whether the accused was properly informed of the minimum

sentence legislation
• Sibiya was unrepresented in the court a quo, and judicial officer (uncertain)
informed him of the minimum sentence legislation
• Certain circumstance allow for minimum sentences to apply
• Importance of the legislation, the accused must be informed of the possibility

thereof, and the duty lies with the legal representative
• Unrepresented accused: court must take over that legal duty
• Knowing you could be imprisoned for longer can impact your decision to ask
for legal representation or not
• The issue is whether the court had properly informed Mr Sibiya of the
possibility of the minimum sentence legislation so that Mr Sibiya can decide
whether he wanted a legal representative
o Because he faced an increased punishment
o If they had not, it would amount to a procedural irregularity
• Record showed that he was explained, but the extent of the legal
representation wasn’t explained
• He was only informed of the minimum sentence legislation after he was

convicted
• The accused was unskilled in the cross examination
• Court said that the right to a fair trial was infringed, and conviction and
sentence was set aside
S 22, LEGAL AID SOUTH AFRICA ACT 39 OF 2004
• Read w/ the CPA s 73(2)(a)
• Factors that are considered by the legal aid board
53
o Personal circumstances
o Nature and gravity of charge/conviction
o If representation is available, or has been provided
o Any other relevant factors
54
SU 5: The Accused’s Presence as a Party 55
SU 5: THE ACCUSED’S PRESENCE AS A PARTY
NTRODUCTION
EXCEPTIONS TO THE RULE
MISBEHAVIOUR
• Charged w/ a separate offence in facie curiae (in contempt of court)
55
• Court orders them to be removed and the trial continues in absence of the
accused
• Done w/ circumspection and be avoided
• Court should try to give the accused a warning
• The court must consider to rather postpone the matter or adjourn the court
until a further date or time
• Court chooses to continue in the absence of the accused, and the evidence
that has been learned must be rehashed for the benefit of the accused
• The accused must also be asked if they want to give evidence
• S v Mokoa
MULTIPLE ACCUSED
• Any time after the proceedings have started, a co-accused may request an
absence for the proceedings
• Due to physical condition, or the death/illness of a family member
• Only if it can be done w/out prejudicing the accused
• Trials may be separated
TECHNOLOGICAL POSSIBILITIES
• Example CCTV, Skype, Teams, Discord
• Only if readily available
• Prevent unreasonable delay, reduce cost, convenient, interest of safety and

justice
• S 159 A -> D, CPA
o Postponement of certain criminal proceedings via audiovisual link
o Often used in cases involving minors and sexual offences (traumatised or

vulnerable victim)
56
o Court should grant reasons for denying this for victims of sexual offences,
or victims <14
o May also testify through an intermediary
• Covid 19: Directives issued by Chief Justice Mogoeng i.t.o. s 8(3)(b) of the
SCS Act 10 of 2013 for the Management of Courts during Lockdown
ADMISSION OF GUILT FINE
• Not required to appear in court
• Prosecutor believes magistrate will impose a fine <R10 000
o Option of paying admission of guilt fine (R10 000)
• Pay fine and then don’t appear in court
• After appearing in court, or before pleading/testifying
• Paid to the clerk, at police station, on a specific date
• Deemed as convicted and receive a criminal record
OTHER
• Specially designed court rooms and intermediaries
o S v Manzi
o No failure of Justice
• Compounding of Minor Offences
o Paid amount not to be prosecuted
57
SU 7 – Securing the Attendance of the Accused at the Trial 58
SU 7 – SECURING THE ATTENDANCE OF THE ACCUSED AT

THE TRIAL
INTRODUCTION
• Right to attend own trial is enshrined in the Constitution (S 34) + CCPR +

CPA (S 158(1))
• However, there are exceptions
• Presence of the accused is seen as confrontation, which is an element of our
accusatorial system
o It is important to see the demeanour of the accused
o Evidence is present orally: what was said and how it was said
• None-attendance is seen as a violation of the Constitution, which means that
justice has failed and a conviction may be overturned
EXCEPTIONS TO THE RULE
58
Offence in itself - Accused applies
3. physical condition/grief
2/more cases
1. misbehaviour
2. multiple accused
contempt of court
joined court can direct trial to
Trial continues in continue or not in
absence of accused, as Accused's legal asbence
their behaviour made the representation
trial impractical to • only if trial cannot be
continue
applies to have 1 of postponed w/out
the accused absent embarassment,
Judge givesa warning
and an opportunity to at joint trial prejudice, or
stop (last resort) •applies after trial has inconvenience
Case could also be commenced Instead of continuing
postponed/adjourned in absence, trial may
Accused removed -> also be held
returned when evidence separately
has been led -> question • continue from the
them if they want to point where trial
testify and lead evidence previously stopped
Mokoa: powers to
remove and continue
case (w/ caution,
circumspection and
warning)
59
METHODS OF SECURING ATTENDANCE
Summons Written Notice Indictment
Who serves it Server of court Peace officer Server
Court Yes Not if paying an Yes

appearance admission of guilt
fine
When it must be 14 days before 10 days before

served trial trial
SUMMONS
• Primarily summary trials in lower courts

• Accused is not in custody or under arrest
• Procedure:
60
Prosecutor • Document: name,

address,
draws up occupation, status
of accused ->
charge clerk
Clerk • Charge +
information +
prepares a place, date, time
for appearance
summons
Hands
• Police official,
summons sheriff
to server
• @ residence, place of
employment/business
• Person not found there
-> delivery may be
Summons effected @ same
address to someone
served via apparently >16 y/o who

resides/works there
• Served anyplace in
delivery RSA
• At least 14 days before
trial days (excl.
Sundays/public
holidays)
• Failure to attend or remain in attendance

o To ignore a summons is a criminal offence, which means a warrant for
arrest may be drafted
• Legal nature
o In force anywhere in RSA
o It loses its status when the terms stipulated therein are adhered to
61
WRITTEN NOTICE
• Differs from a summons

o Prepared and served by a peace officer
o Gazette 2003: minor offences
o Court appearances not necessary if the accused opts to pay an
admission of guilt fine – CPA
o Court date must, however, appear on the notice
• Same consequences if failure to respond as w/ summons
INDICTMENT
• Trial in the high court

o Contains the charge + other particulars + signed by DPP or Deputy
DPP
o At least 10 days before trial date
o Consequences: same as w/ summons
APPREHENSION/ARREST
MacDonald v Kumalo
• The purpose of arrest must
Constitution s 12(1)(a), be to bring the accused
21(1), 35(1) before a court so that they
can be tried for the charge
brought against them, not to
punish them
• Apprehension is an invasive procedure, and violates certain constitutional

rights (freedom of movement, dignity, bodily integrity, privacy, arbitrary arrest)
• A private person above 16 y/o may also affect an arrest
o And an able-bodied man between 16 – 60 can be requested to assist
the police in affecting an arrest
• Police must use their discretion in an arrest
o If not, then may be held liable for improper/negligent arrest, or arresting
someone w/out reason
62
o w/ or w/out a warrant -> preference for warrant, but circumstances exist

allowing for a warrantless arrest
• Charles v Minister Safety and Security
o Do not need hard evidence to arrest w/out a warrant
o Reasonable suspicion is enough (this is an objective standard – a
hunch is not enough)
o Onus
▪ If you were to sue someone for wrongful arrest and you are
asserting that the arrest was wrongful, the minister will have the
onus to prove that the arrest was lawful
▪ They will rely heavily on their reasonable suspicion in the case
of warrantless arrest
o A wrongful motive doesn’t necessarily render a lawful arrest unlawful
REQUIREMENTS FOR A VALID ARREST
The general statutory framework for s 39 – 53 CPA
1. Statutory authorisation (CPA)

2. Physical control/limitation of freedom
o Doesn’t have to be handcuffed or hands tied together
o Must just be that they are under your control
o Touching them is sufficient, if you exercise physical control in that
they're not fleeing or escaping from you
3. Give information/reasons
o Why they are arresting you
o Sometimes it is self-evident -> less necessary to provide reasons
o Warrant -> reasons
o Immediately during arrest, or asap afterwards
o Done via warrant -> provide copy thereof
o Someone's custody will be unlawful if you did not inform them of the
reasons -> Becomes lawful when you, at some time in detention,
inform them of the reasons
o Specificity of reasons depends on person's knowledge
4. Taken to place of detention asap
63
o Depends on the facts
MINISTER OF JUSTICE V ZEALAND
S 39(3) of the CPA

provides for the Person arrested
S 39(3) does not
legal consequences and detained w/out
sanction indefinite
of an arrest -> Further detention -> a case against
detention on the
arrestee is in lawful s 50 CPA them being enrolled
strength of the
custody and that he -> must be released
initial arrest
shall be so detained from custody
until…
▪he is lawfully
discharged (acquittal)
▪released from custody
(warning, bail, non-
custodial sentence)
5 TH JURISDICTIONAL FACT?
LOUW V MINISTER OF SAFETY AND SECURITY

• An arrest w/out a warrant is only lawful where
o it is effected according to s 40 of the CPA
o Someone who is on reasonable grounds suspected of having
committed a crime
• On the evidence the police had at the time -> could never have entertained
the above suspicion
o Plaintiffs, at all times, believed they were entitled to taking the machine
+ intended to return it to the owner
o No requisite intention to commit theft .
• Arrest = drastic interference w/ rights of individual = arrest should be
last resort means to secure the attendance of the accused in court
o Detention must be objectively justifiable
• Reasons not to arrest
o Does not represent a danger to society/Will probably attend trial/Will
not abscond/Will not harm himself or others/May be able to disprove
allegations
64
• Arrest is prima facie wrongful = minister must prove lawfulness of arrest

• When to arrest
o Urgency/No fixed and known address/Ensure effectiveness of law
• Constitutional sphere
o Restriction of exercise of public power -> examination of wrongfulness
of arrest
o Right of an individual to personal freedom should be jealously guarded
• If the officer reasonably believes as crime has indeed been committed = does
not justify an arrest forthwith
o Arrest = drastic invasion of personal liberty = must be justifiable
according to the demands of the BoR
o Move away from a culture of authority to a culture of justification
o Exercise of public power must be justified
• Solution?
o Police are obliged to consider less invasive options to bring suspect to
court other than arrest
o No reasonable apprehension that they will abscond/fail to appear
if a warrant or summons is obtained first = no need to arrest
(Constitutionally)
o Honest exercise of duties of police
▪ Bona fide fear that justice will be evaded = arrest if correct
• Ways to secure attendance of accused at court
o Arrest
o Written notice
o Summons
o Voluntary surrender to the jurisdiction of the court
MINISTER OF SAFETY V SEKHOTO

• CPA s 40(1)
o (b) reasonable suspicion of Schedule 1 offence
o (g) reasonable suspicion of unlawful possession of stock
• 4 known jurisdictional facts (common law)
o Arrestor must be a peace officer
o Must entertain a suspicion
65
o Suspicion must be that accused 66ommitted a schedule 1 offence

o Suspicion must be reasonable
• Onus rests on defendant to justify an arrest
• Lack of evidence re an arrest being justifiable according to the BoR
o Must consider less invasive options
o No reasonable apprehension = constitutionally untenable to exercise
power to arrest
▪ Is this a 5th jurisdictional fact?
• Interpretation principles
o Is the above a direct application of BoR principles/developing common
law/interpretation of s 40(1)
o Statutes must be interpreted considering the BoR
• The Constitution
o BoR = security and freedom
o Deprivation of freedom -> prima facie unlawful -> justification by
arrestor
o Right to be brought before the court as soon as reasonably possible
• S 40(1)(b) of the CPA
o Attendance: arrest + summons + written notice + indictment
o Provisions dealing w/ arrest
▪ 40(1): authorises an arrest w/out a warrant
▪ S 43: magistrate may issue a warrant for arrest
o Is there a 5th jurisdictional fact?
▪ Legislation > common law = cannot change the meaning of a
statute by developing the common law
o Does s 40(1)(b) allow a 5th jurisdictional fact?
▪ If this section is not unconstitutional, then they cannot read
anything into it
▪ This section is not unconstitutional, as it expressly provides that
an arrest cannot arbitrarily/ w/out just cause deprive someone of
their freedom
• Discretion
66
o Jurisdictional facts are present -> discretion: are there constraints on

the exercise of discretion?
▪ Construction of empowering statute consistent w/ the
constitution
• Importance of constraints of power = BoR and Louw
decision
o Officer =/= obliged to effect an arrest
▪ Discretion is unlawful where the arrestor knowingly (mala fide)
uses arrest for purposes other than that which is legislated for
▪ The decision to arrest must be for the purposes of bringing the
accused before the court = frauden legis (uses power for ulterior
purpose)
• However: object of arrest v motive
• Validity of an arrest is not affected by motive
▪ Power to arrest is limited, and is exhausted quite soon in the
justice process
▪ Discretion of the court becomes wide-ranging after arrest is
fulfilled = arrestor plays a limited role
▪ Role of the court to determine whether suspect ought to be
detained pending trial, not the arrestor
▪ Arrest must only bring the suspect before the court
ARREST W/ WARRANT: PROCEDURE
• Magistrate/justice of peace may issue warrant of arrest upon written

application of…
o DPP
o Public prosecutor
o Police officer
• Application must…
o Set out alleged offence
o Set out jurisdiction where offence took place
o Confirm (on oath) that person being sought did commit the offence
• May be issued on any day + remains in force until…
67
o It is cancelled (by person who issued it)

o It is executed
• Issued in one district -> valid in all other districts
• Official to whom warrant is issued is not deprived of their discretionary powers
regarding the ambit of the execution of the warrant
ARREST W/OUT WARRANT
• Great amount of discretion is given to police officers -> they must apply their
minds to a choice of arresting
o Using common sense and morality
o Civilian arrest awards powers to a civilian regarding the first phase of
detention and must take the accused to the police station asap
• Civilians v peace officers
o Police have broader powers than civilians
• In flagrante delictio
o Being caught red-handed while a crime is being committed
o Someone sees you committing a crime, they may arrest you
o The more serious the crime, the more justifiable the arrest would be
• Reasonable suspicion
o Based on objective facts -> what did you see, what reports have you
received regarding this possible crime?
o If this suspicion is based on information received from an informant ->
are they trusted?
o Can’t arrest merely on a hunch -> officers must apply their minds
o Constitutional rights of someone still applies
o The point is not to punish the individual but to bring them before the
court
• Freedom of the individual
• Schedule 1 offences
o More justifiable when you are arresting w/out a warrant
o More serious offences -> warrantless arrest is more admissible
• Time aspect
o Accused must be taken to place of detention asap
68
o Not charged w/ any crime and not brought before a court -> must be
released within 48 hours
PROCEDURE AFTER ARREST
• S 35(1)(d) of the Constitution + s 50 CPA sets out 2 stages of arrest

o Arrest to place of detainment
o Detention
▪ Extension of 48h period
• All must be done asap
• 48h rule
o Charges are not brought, or the accused is not brought before the
court, then they cannot be detained for longer than 48h
o If they are brought before the court, this is counted as their first
appearance -> their trial doesn’t start, and they don’t plead either, but
they may apply for bail or be released on a warning
o If the arrest was unlawful, then it will become lawful if they are brought
before a court and that court orders your further detention -> may still
institute an action for damages as a result of the unlawful arrest and
initial detention
48H-RULE
• If the 48 hours expire on a day that’s not a court day (public holiday,
weekend), then it counts as expired on the next court day @ 4pm
• The police can, however, let you out earlier if they want to
• If it does fall on a court day, it expires at 4pm, i.e. the police don’t HAVE to
release you until 4pm
• If the arrestee is outside the jurisdiction of the court @ the time of expiration,
then their arrest is deemed to expire when the person is brought back to the
court’s jurisdiction @ 4pm on the next court day
• If the arrestee is unable to be brought before the court, then they may be
detained at a specific place and bail may be considered in that place
69
Wednesday
Monday 09:00
09:00 •48h have
•Arrested passed
Tuesday Wednesday
09:00 16:00
•24h have •Detention
passed period expires
Wednesday 10:00
-> arrestee is in
Arrested Monday Tuesday 10:00 -> Thursday @ 16:00
transit from place
@ 10:00 24h have passed -> expiration
of detention to
court
ESCAPE FROM UNLAWFUL DETENTION
• R v Mtungwa
• Person escaped from custody
70
• They were arrested w/out a warrant and detained for longer than 48h
• Court said that he couldn’t be charged w/ the crime of escaping from prison
• Escaping from lawful detention is, however, a crime
LEGAL EFFECTS OF ARREST
Read para 5.6
DUTY TO ARREST
• There is no duty on a private individual to effect an arrest

• However, the CPA holds that a male person between 16-60 may be called on
by an officer to assist an arrest
• However, if you have a physical ailment, it exempts you from this duty
• Mens rea to commit an offence (if they wilfully ignored the instruction)
RESISTANCE OR ESCAPE
• Crime to escape from lawful detention – S v Bogaards
USE OF FORCE/VIOLENCE FOR ARREST
• Very limited circumstances

o Use of deadly force must be done w/ extreme circumspection -> right to
life
• It’s a drastic measure, therefore requirements must be complied w/
• If not = double functionality of CPL
o Lose ability to claim that the act was done in self-defence when
executing official duty and maybe charged w/ murder or culpable
homicide
• Constitutional implications
o Right to life
o Presumption of innocence
▪ Cannot execute someone for suspecting them of a crime
▪ They must be brought before a court to decide on their guilt
o Ex parte Minister of Safety and Securty: In re S v Walters
▪ The old s 49(2) was declared unconstitutional
71
▪ Amended in 2012 (until then it was interpreted through the lense

of judgement)
▪ Amended section -> reasonableness, proportionality,
necessity
▪ More concrete = tabulates new requirements for the use of force
in arrest (includes deadly force) -> previous section was vague
and gave the police a power to basically kill (see below)
▪ Arrest is not a means to punish someone and arrest is not
always the best means to bring someone before the court, but
we recognise that sometimes it is necessary to use force when
arresting someone
▪ This force must only be as reasonably necessary / proportional
▪ When and how much violence to use -> crime you are
suspected of + do you pose a risk to police and other people
▪ Walters doesn't limit police officers powers to arrest, must just
be done in line w/ the const + w/ better guidelines re use of force
72
• Use of deadly force: S v Kruger

o In cases of murder/attempted murder: the state must prove beyond
reasonable doubt that the accused (SAPS) used deadly force with the
intent to kill or cause serious bodily harm; THEN the accused must
show on a balance of probabilities that one of the justification grounds
in art 49(2)(a)-(b) find application.
o Element of necessity -> necessary to effect an arrest (when
fleeing/resisting)
o Proportionality -> fact dependent
o Deadly force -> serious violence threat or suspicion on reasonable
grounds of committing crime and no other ways to affect arrest
(whether now or later)
73
Case What it dealt with
Mokoa Misbehaviour in court
MacDonald Purpose of an arrest
Zealand S39 v S50: indefinite detention
Louw 5th jurisdictional fact + requirements for

a valid arrest
Sekhoto 5th jurisdictional fact + discretion being

limited
Charles Reasonable suspicion
Mtungwa Escape from unlawful detention
Walters Force when affecting arrest
Kruger Deadly force
74
SU 8: Interrogation, Interception, and Establishing Bodily Features of Persons 75
SU 8: INTERROGATION, INTERCEPTION, AND ESTABLISHING

BODILY FEATURES OF PERSONS
INTERROGATION
• When the police are questioning someone, they are constitutionally mandated
(under s 205) to undergo all the functions necessary to investigate crime
• Usually, the police detect crime themselves and don’t need to pick up on
crime and therefore don’t need special powers to interrogate a suspect
• However, there exists a need for special powers in certain circumstances
o Like, if someone refuses to grant them access to someone who might
have information
• There is no general obligation to assist the police in their investigative tasks or
to give them information
o Except w/ the common law crime of treason -> if you are aware of a
treasonous plot and you don’t report, then you are also guilty of treason
o Statutory exceptions: child abuse, domestic violence, etc
• Police therefore have powers over possible witnesses to question people
GENERAL POWERS OF INTERROGATION
1. ENTRY TO PREMISES TO INTERROGATE
• S 26 and 27 of the CPA

• If you (the police) are aware that someone has information then you are
allowed to, w/out a warrant, request permission to enter the premises
o Any evidence obtained in a case where police acted wrongly can be
excluded, and the victim would be entitled to damages
• You must knock, state purposes, and state who you are looking for
• What happens when the witness/someone else refuses entry?
o The police may use force under s 27 to overcome resistance to entry
(after audibly demanding entrance and stating purpose)
2. OBTAINING NAME AND ADDRESS
• Important to obtain this!
75
• If refused, then the police may arrest you if the officer suspects, on
reasonable grounds, that a crime has been committed
• R300 fine or 3 months imprisonment
3. DETENTION FOR INVESTIGATION
• Required for certain offences

• Usually, the police don’t have the power to detain you during an investigation
o If you are suspected of committing an offence, you are granted bail
• Here, the accused is indefinitely subject to being brought before a magistrate
POWERS OF SUSPECTS AND THE ACCUSED
• Right to remain silent

• Cooperate w/ questioning within reasonable limits
o May refuse to answer, but you must grant name and address
• Big emphasis is on oral communication
o Do not regard forensic evidence as oral communication, therefore
obtaining forensic evidence is not a violation against the right of self-
incrimination
INTERCEPTION AND MONITORING
• RICA + POPI + Cybercrimes Act
RICA
Section 1
76
Direct Communication
Oral communication between 2 or more persons in the immediate presence of all participants
Indirect communication
Transfer of information (data, text, images)
Interception
Aural or other acquisition of contents of communication through any means to make content available to someone other than
sender/recipient of communication
Monitor
Includes to listen to or record communications
S 2 + S 49 • Prohibits interception + makes it a criminal offence

• S v Hammer
S3 • Judicial consent necessary for interception

• Grounds under s 16(5): investigation of serious offences
• Serious offence has been/is being/will probably be committed

S 16(5) • Actual/potential threat to the public health or safety, national security or
compelling national economic interests of the Republic
S7 • Interception of communication to prevent serious bodily harm
S8 • Interception of communication for purposes of determining location in

case of emergency
77
Section 4
Interceptions by a
party to the
communication
Private persons Police officer
Not to commit a Party to

crime communication
Reasonable
grounds to believe
-> s 16(5)
Section 4
Consent to
intercept
Private persons Police officers
Prior written
Person not a party
consent by one of
to communication
parties
Reasonable
Prior written
grounds to believe
consent
-> s 16(5)
78
Section 4(3)
Law enforcement
officer
During apprehension
Record what they

observe
ID themselves
Verbally inform; direct

communications
79
ASCERTAINMENT OF BODILY FEATURES
• Field of application of the privilege against self-incrimination

• Taking of blood, semen, saliva?
o No: not against self-incrimination
o Known as the ascertainment of bodily features
• Ch 3 of CPA + constitutional right to privacy and dignity
• Legitimate of limitation of constitutional right if it is done properly and within
the framework of the CPA
o Doesn’t give the person ascertaining the features carte blanche, must
be done in a specific way by specific persons
• Not regarded as oral = not a violation of privilege against self incrimination
80
• Things that aren’t a violation of the privilege or constitutional right:
DNA ACT 2013
• Codified taking of samples

• Use of forensic DNA profiles in the investigation of crime
• Use of such profiles in proving the innocence or guilt
• Exonerations of convicted persons 'wrongful convictions'
• Will assist in the identification of missing persons and unidentified human
remains
• It provides for the conditions under which the DNA samples, or forensic DNA
profiles, derived from the samples, may be retained or the periods within
which they must be destroyed
81
POWERS IN RESPECT OF FINGERPRINTS OF ACCUSED AND

CONVICTED PERSONS
82
USE OF FINGERPRINTS AND BODYPRINTS FOR INVESTIGATIVE

PURPOSES: S 36(C)
• No one is convicted yet, just using prints to include/exclude someone in the

investigation
• Prints taken for a very limited purpose
o Detection of crime, investigation of an offence, identify missing persons
or human remains, deducting a prosecution
USE OF SAMPLES FOR INVESTIGATIVE PURPOSES: S 36(E)
• Samples for investigative purposes

• The authorised person may affect a taking of a sample, or order/supervise
one
• If the accused doesn’t consent, then a judge/magistrate can order a warrant
• Need to prove
o Reasonable suspicion that this person has committed a schedule 8
offence
o or that this sample would be useful in including/excluding certain
persons
83
CPA: S 27 + 37
Gaqa
Constitution: S
10 + 12 + 36
Order compelling
the removal of
object from body
CPA: S 27 + 37
Xaba
Constitution: S
12 + 36
GAQA
• Application to have a bullet removed from someone’s leg

• Order to have surgery done to have a bullet removed from leg
• Person suspected involved in an attempted robbery, 2 people killed
• Court refers to:
o S 27 CPA
▪ Use of force in interrogation
▪ In effecting a search
o S 37
▪ Officials may take certain steps to ascertain one of these
features (bodily, distinguishing)
• Court admitted that a bullet isn’t ascertaining a bodily feature
• Court took a purposive approach
o Looked at s 27 -> entitles someone to use force when there is
resistance IN CERTAIN CIRCUMSTANCES
o Facilitate police to investigate crime
o Do recognise that there are potential violations of constitutional
sections, but can and will be limited under s 36 (balancing exercise)
• Surgery can be compelled
84
XABA
• Similar facts
• Also bullet lodged in body
• Court took a more constitutional approach
o S 12: breach persons bodily integrity to this extent for this purpose
• S 27 and 37 of CPA
o Purpose not to affect surgical removal, can’t rely on that argument
• Did say that this issue should be better regulated by the law
• These const rights (s12) outweighed the other considerations
• Neither of these sections authorised surgical removal -> legislature should
promulgate forced surgical removal if that’s what they want to affect
85
SU 9: Search and Seizure 86
SU 9: SEARCH AND SEIZURE
INTRODUCTION
• S 20 of the CPA concerns articles that are susceptible to seizure (Our POD)
o The police are entitled to seize certain items from a person/premises or
to search the person/premises under certain circumstances
o However, this is a violation of our s 10 and s 12 constitutional rights,
but it is recognised as a legitimate limitation of these rights in order to
combat crime
• S 2 of the CPA concerns search and seizure specifically
o With the SAPS act, NPA act, cybercrimes act, etc
Articles susceptible
to seizure [S 20
CPA]
Involved/reasonable
Intended to be used
suspicion involved in Evidence
in criminal activities
crime
• Only the above items may be searched for and seized by the police
o Real/physical evidence, digital evidence, documents
o Does not include documents that fall under the legal professional
privilege, but client can consent to it being searched and seized
MNYUNGULA V MINISTER OF SAFETY AND SECURITY
• The applicant’s car was seized by the police w/out a warrant

• He applied to have the car returned to him
86
• Asserted that the police had no reasonable grounds to believe that the vehicle
was a stolen vehicle
• The court highlights that when affecting a search and seizure, there must be a
reasonable believe that the item being seized falls under 1 of the 3 section 20
categories
• What does reasonable belief mean?
o Onus is on the police to prove objectively that there were ample facts
existing at the time of the search to base the [reasonable] belief on
• In this case, the warrantless search was affected at the time
o You can’t afterwards say that you had a reasonable belief
o It had to exist at the time when the search was effected
o In this case, there were no ample facts, and therefore there was no
reasonable belief
• NATIS -> have not checked the system for whether the car was stolen, nor did
they check the police auction register
• The police officer acted recklessly and unreasonably, infringing on the rigts of
the applicant
• The court set aside the seizure in the interest of justice
o Can be done if the reasonable belief is rebutted by the person whose
articles were seized
o Court can also order for it to be returned
o also, if it can be shown that the facts the reasonable belief was based
on was incorrect, it could lead to a setting aside of the seizure
SEARCH WITHOUT A WARRANT
GENERAL RULE AND DISCRETION
• How should a search warrant be drafted?

o Wording must be clear and correct
• Issued by a judicial officer
o Police must come up with reasonable grounds for the judicial officer to
grant the search warrants
▪ In accordance w/ the law and facts
87
▪ And whether the article they are looking for is a s 20 item (based
on the information they were provided w/ + reasonable grounds)
o However, the discretion rests with the judicial officer whether to grant
the search warrant
GENERAL SEARCH WARRANTS
1. Reasonable grounds in believing that a s 20 item is at the premises / under

the control of a person living on that premises
a. Can only grant a search warrant if the premises is under their
jurisdiction
2. Evidence must be a s20 item
a. The evidence must be at the premises at the time of the search
3. Aim
• To a police officer -> direct them to seize the items listed in

Must be clear to the search warrant (can be specific or general)
• Direct the police to search a particular person -> the person
whom it is addressed must be adequately identified in the warrant
• Violation of the rigt to privacy
Strictly interpreted
• Is preferable, as it assists in interpreting the search warrant

Suspected offence
need not be listed
• What are you searching for and wy?

Purpose of search
needs to be listed
4. Must not be vague

a. Thint and Powell
POWELL
88
• Should be intelligible and understandable

o Does this mean it should be broad?
• Should include
o Offences, date, person searched, location
THINT
• Confirmed test under Powell

o Warrant must be reasonably intelligible (which is the common law
approach)
o Must be developed under the constitutional lens to be an objective test
• Powell laid down a subjective test regarding the intelligibility standard
o This subjective test would depend on every individual person and
would have to be tailored to everyone’s own standard
o Not practical!
• This subjective test is rejected
o Reaffirm that the test is objective and the warrant must be reasonably
capable of being understood by a reasonably well informed person who
understands the relevant empowering legislation and the nature of the
offences under investigation
• More than just the police involved
o The suspect too -> importance of access to some kind of assistance
o Could disagree on the content of the warrant, but that doesn’t mean it’s
not reasonably intelligible
• Would be unrealistic to expect a layperson to understand the terms of a
search warrant
o Drafted in a clear manner capable of being understood even by a
layperson?
• Impermissible to refer to external sources (such as the original affidavit)
o This is especially true when determining the general ambit of a search
warrant
o BUT: it may be relevant, or even permissible, to rely on an external
source to determine whether a specific item falls under the search
warrant
89
• Some things need to be included

o statutory provisions, to whom it is addressed, powers it provides to
police officers, suspected offences, specific premises to be searched,
classes of items (case to case -> seize spec items or classes of items),
scope of investigation, authorised search in reasonably intelligent
manner (purpose of investigation), body being searched -> stated that
warrant urges someone to do this
• Not necessary to define a warrant and formulate it in a manner that would
never confuse someone
o Too long and complex
TIME
• Search/seizures are a violation of privacy

• Generally, they must be executed during the day unless the judicial officer
states otherwise
o Could be necessary to search at night due to the nature of the crime
• May be executed on any day, including Sunday
• It remains in force until executed or cancelled by judicial officer
SEARCH WITHOUT A WARRANT: POWERS OF THE POLICE
• These are exceptional
CONSENT
• Section 21 of the CPA -> someone may consent to search a personal

premises for a section 20 item and seize it
S V MOTLOUTSI
• Lived on a premises and subletting a living room in a house

• Mr Motloutsi was living in the living room
• The tenant had consented to the search, but Mr Motloutsi was the one under
investigation
o Mr Motloutsi’s room was the one being searched
• The court said this is not valid consent
90
o The tenant had no control/authority over the sitting room and no

authority to consent to it being searched
• They found blood stained bank notes, which is serious and incriminating
evidence
• However, this is a grave violation of Mr Motloutsi’s privacy and therefore, the
evidence was excluded
• This proves the power of the exclusionary rule of S 35(5) of the Constitution
DELAY
• Often factors/grounds in tandem

o The police say that the suspect consented and if the court doesn’t
believe it, then they try and prove that the ground of delay was present
Police believed on
reasonable grounds, had
they applied for a
warrant, a judicial officer
would've given them a
warrant
The delay in waiting for

a search warrant would
defeat the objectives of
a search warrant
BORDER CONTROL
• Cordoned off area or roadblocks/checkpoints

• Mandated by officials
91
SEARCHES AND USE OF FORCE
• S 27 of the Criminal Procedure Act allows for the use of reasonable force
o When someone won’t give entry to premises
o Must first ask for consent to enter
• Exception to not asking for consent
o No-knock clause: belief on reasonable grounds that something
(illegal/criminal) will be disposed of
RIGHT TO PRIVACY AND FUNCTION
MOTLOUTSI
• Double functionality of CPL: formal consequences -> exclusion of evidence
SHASHAPE
• Substantial consequences -> payment of money/damages
ELECTRONIC DEVICES
• Cybercrimes Act 19 of 2020

o S 25: seizure v access -> 2 steps
o Controls how we seize devices
WRONGFUL SEARCH
• Double functionality and the disciplining effect of procedural rules

• S 28 and substantial law
o S 300 of the CPA: a court may order damages from a search
o S 28:
▪ an official acts contrary to the authority of a search warrant
▪ OR acts unauthorised
▪ Is guilty of an offence
o Giving false information to get a warrant + it’s executed -> perjury
• Shashape
o Look at previous notes
• Boshoff
92
o Police enter the house unlawfully

o No information that police searched the premises
o No offence under s 28
o However, guilty of other offences -> trespassing
DISPOSAL/FORFEITURE OF SEIZED ITEMS
CPA S 30 – 36
• Stay in police custody and given to the clerk if it’s needed in trialk
• Judge must make an order at the end of the trial
o Returned to the owner
o Forfeited to the state
• Not required in the trial or there is not trial
o Returned to lawful owner/person whom it was seized from
• Stolen goods are more complicated
o If there was no lawful possession or it cannot be lawfully possessed
▪ Destroyed
▪ Forfeited to the state
• State must attempt to notify the lawful possessor
o If they don’t claim after 30 days, then they forfeit it to the state
• After conviction, it is forfeited to the state
o If it was used in the commission of crime, it’s seen as an instrument of
crime
RESTITUTION V FORFEITURE
• Court holding on for a while =/= de facto forfeiture (Ntoyakhe)

o State has to show evidence that they are entitled to hold unto the
property
o No indefinite hold
• S 29 CPA
o Search must be done in an orderly manner
93
SU 10: Bail 94
SU 10: BAIL
INTRODUCTION
• Bail is granted in certain circumstances

o Accused remains in custody until bail is paid for or guaranteed
o The amount is determined on a case by case basis
• S 29 of the CPA
• S v Thornhill
o A prognostic exercise where many factors are considered
o Highly individualised
o Question of whether the applicant for bail will abscond -> enquiry into
the probable future conduct of the applicant
▪ Determined based on the applicant’s past conduct
▪ A future prospect that is speculative in nature
o How much weight is to be placed on a statement by an applicant ->
assess the reliability of those facts based on the circumstances
o Not only establish the likelihood that the accused will abscond if
granted bail, but also how prejudicial it might be for the applicant in
all the circumstances to balance against likelihood of absconding
• Once bail is granted…
o Appear at court as stipulated
o Bail endures during the trial
▪ Sentence imposed
▪ Verdict and sentence differ by days, then bail is extended
• Bail can also be cancelled
• Termination/forfeiture of bail
o Doesn’t show up or doesn’t comply -> criminal offence
o Court orders that you lose that money
o Can order your re-arrest
• There exists a tension between the constitutional right to bail and the
community interest, and thus a balancing exercise must be done.
o Competing interest of presumption of innocence and the
community wishes to hold people liable for crimes
94
SU 10: Bail 95
o In a kind of purgatory where you aren’t guilty, but you must still face
trial
o Bail is seen as motivation to attend trial
o If bail is denied, then it is in the interest of society to keep someone in
custody
• Not everyone will be imprisoned
o If only a fine or warning is given, then there is no reason to consider
bail
o The right to bail is subject to reasonable conditions
o Refusal of bail -> CPA s 60 factors are weighed up
o Bai rests on the interest of justice
▪ Flight risk, will interfere with investigation, intimidate witnesses
o Presumption of innocence versus the disadvantages of being an
accused
• Bail -> consider previous convictions
o Bail record is seen as party of trial
o Previous convictions may help in deciding whether to grant bail, but is
not part of trial
• Onus – S v Yanta
o Bail hearing -> civil onus
o State will present facts as to why they refuse bail
o The accused must respond with facts why they should be given bail
o Schedule 6 -> exceptional circumstances must exist for the accused to
be released on bail
▪ must be eligible + exceptional circumstances must exist (in the
interest of justice)
▪ Onus shifts to the accused to show these exceptional
circumstances on a balance of probabilities
• S v Mbolombo
o The purpose of bail is to strike a balance between the interests of
society (the accused should stand his trial and there should be no
interference with the administration of justice) and the liberty of an
95
SU 10: Bail 96
accused (who, pending the outcome of his trial, is presumed to be

innocent).
TYPES OF BAIL
Police Prosecutor Court
Section 59(1)(a) 59A(3)(b)-(c) 60
By whom? Police officer of a Prosecutor – Judicial officer

certain rank – subject to judicial
approved by a approval
judicial officer and
investigating
officer
Conditions Only payment of Payment and/or Payment and/or

cash reasonable reasonable
discretionary discretionary
conditions conditions
Appeal? If unsuccessful, If refused, appeal

apply for court bail to high/er court
POLICE BAIL
• By an officer of a certain rank

• Before 1st appearance in court
• Limited circumstances – minor offences
• If refused, then can apply for court bail in the lower courts
• Has to be approved by a judicial officer
o A judge can amend or refuse
• S 59(1)(a) CPA
• Payment of cash as condition
o No other forms of guarantee
o No other special conditions
• Investigating officer must first be consulted
96
SU 10: Bail 97
PROSECUTOR BAIL
• S 59A(3)(b)-(c) CPA
• Person shall be released from custody upon
o Payment
o Reasonable discretionary conditions
o Payment and reasonable conditions
• Subject to judicial approval
• Same power as court bail
o Can still be amended
COURT BAIL
• S 60 CPA
o After first appearance in court
o S 50(6)
• Can apply at any time
• Intertest of justice -> released -> factors
• Refused in the lower courts, can appeal to the high court
o Accused
o DPP
FACTORS RELATING TO BAIL APPLICATION
• Risks, freedom, interest of administration of justice

o If released, will the accused stand trial?
o Will they interfere with the investigation?
o Will they commit further crimes?
o Is it prejudicial to the maintenance of law and order, and state security?
• S 60(4)(a)-(e) of the CPA grounds
o If refused bail, it must be in the interest of justice
• S v Dlamini
o What does the interest of justice mean?
o It is used differently in different contexts
o Broadly: it is a value judgement, which must account for a fair and just
outcome for all parties involved
97
SU 10: Bail 98
o Bail must be given its narrow meaning

o Must be in the interest of society
• Factors (s 60(4))
Likelihood of the accused

attempting to evade trial
if released Influence/intimidate
Propensity to commit
witnesses,
crime again ▪Strength of evidence and
probability of prosecution conceal/destroy evidence
▪mobility
Disturb public Interest of justice and

order/peace/security personal freedom, and
Undermine or jeopardise possible prejudice to the
▪S v Miselo
proper functioning of the accused
criminal justice system
▪Losing job, family is left without a
breadwinner
• Amount of bail
o Mbolombo, Otubu
o Mustn’t be excessive
o High enough to motivate trial attendance
• Bail conditions
o Peremptory conditions
▪ Conditions that are always imposed: such as when they must
come to court, date, time, place and the actual court room etc
and payment of money over and above the peremptory
condition
o Discretionary special conditions
▪ No two sets of bail conditions would be the same, but there are
conditions attached to bail
▪ S v Branco
• Appeal for refused bail application, bail applicant was a
foreign national and he had overseas family ties,
business abroad
• Court a quo refused to grant him bail mainly because Mr
Branco was a foreign national
98
SU 10: Bail 99
• To focus on only one factor is not properly applying ones

mind
• The court must consider bail conditions that it can impose
to mitigate risk factors – risk factor being that Mr Branco
is mobile and has foreign ties
• Mitigate by handing in passport, report at police station 3
times a day
• Not necessary to deny him bail because he is a foreign
national
• Courts can accommodate and mitigate the risk
o Not going to certain places

o S v Packham
▪ Mr Packham was accused of murdering his wife but he was
granted bail
▪ Not clear what the original conditions were but some of them
were the payment of R50 000, not contacting certain people
such as state witnesses
▪ Mr P did not want to listen and violated some of his conditions
and bail was increased to R75 000 and his bail conditions were
amended
• Must stay under house arrest
• He was not allowed to leave his house under any
circumstances except
o Shopping for 3 hours a week (groceries)
o Allowed to attend church on Sundays
o Allowed to see his counselor
o Before leaving his home, he had to phone the
investigation officer from his Telkom landline to
inform the investigator of his departure and
return
o If the investigator's phone was off, he had to leave
a voice mail stating his departure and return
o Report to police station from 8am – 9am daily
99
SU 10: Bail 100
o Had to hand in all electronic devices capable of

communication
o Until the courts said otherwise, he was not allowed
to be in possession of devices capable of
communication
o Not contact state witnesses directly or indirectly in
any manner
▪ Didn't comply with the condition to not contact witnesses and so
his bail was forfeited, and he spend the rest of his trial in jail
▪ Was convicted of killing of his wife and received 22 years for
that murder
o Otubu
▪ Had to hand in devices because they were accused of running
romance scams
▪ Would contact older vulnerable woman as if they are interested
in them and would ask for money under false pretences
▪ The court was critical of the court a quos decision of the 8 co-
accused
▪ Court a quo focused too much on the groups guilt and you must
look at people individual circumstances – they are not a block or
a unit
• Little consideration on Mr Otubus financial
circumstances
▪ US sought the extradition of these members (only formally
requested for 6)
▪ Mr Otubu was not even charged with anything he was only a
suspect
CANCELLATION AND FORFEITURE OF BAIL

1. Failure to observe conditions could mean the money if forfeited to the
state
2. Failure to appear at trial or remain in attendance could result in your bail
being cancelled provisionally. Money forfeited to the state and a warrant of
arrest could be issued for the accused
100
SU 10: Bail 101
• If the accused does not appear within 14 days this provisional

cancellation can then become final
• The accused does have the opportunity to prove to the court
that it wasn't their fault that they couldn't attend court
• They can reapply for bail but the failure to attend can be taken
into consideration at the new bail hearing
3. If someone is about to flee, then bail can also be cancelled
4. Accused themselves can have bail cancelled
• Maybe safer in prison then outside, need the money etc
5. It's also a crime to not appear at trial or remain in attendance or comply
with bail conditions
PROCEDURAL AND EVIDENTIARY MATTERS

• Unique proceeding not a formal trial but an application, looks at balance of
probabilities
• 1. Court has a proactive role
• Not a passive umpire
• Actively participate and questions the accused
• Can be raised by the courts doesn't have to be by the
prosecutors only
• The court may require additional evidence – court may not be
satisfied about the accused financial state they can ask for
additional information
• 2. Free system of evidence
• Hear-say evidence is admissible in bail applications
• Rules of evidence relaxed
• 3. Previous convictions
• Courts can hear about previous convictions (no usually allowed
when it isnt a bail hearing)
• Court must be informed about pending charges, if they are
currently released on bail for another charge or if they have
been previously convicted
• Failure to provide such information is an offence and so is
providing false information
101
SU 10: Bail 102
• S60(11)b(c) and Dlamini

• Bail proceeding record forms part of the subsequent
trial
• Previous conditions will be excluded from record –
S60(11)B(a)
• Taking a risk of testifying: Accused will be warned that evidence
in the bail hearing (even if its incriminating) will from part of the
trial and even the judicial officer who heard your bail hearing will
not be the same judicial officer at your trial
ONUS
• Reverse onus
• Onus on accused
o Accused must prove the exceptional circumstances justifying their
release -> schedule 6 offences
o Balance of probabilities (bail matters -> civil onus)
o No onus on the state to disprove these exceptional circumstances
o Accused is lone person on case
o Exceptional circumstances -> not defined in CPA
o Usually: state takes lead to submit reasons why, in interest of justice, it
would not be advisable to release this person on bail (less serious
offences)
o Accused still needs to submit evidence to rebut these reasons by the
state
• S v peterson
o The court will exercise a value judgement in all the relevant facts and
circumstances + relevant legal rules
o It doesn't have to be exceptional, i.e. factors other than factors listed in
s 60 -> can still mention factors in s 60
o Wife killed husband
o Initial bail hearing -> P indicated that she was quite ill (psychological
difficulties)
o Another bail application after previous one was refused regarding that it
appeared that the previous application was inaccurate/false
102
SU 10: Bail 103
o New application: she had to take care of minor daughter and had now
appeared to be quite healthy and capable of taking care of minor
daughter
o Referenced the need to take care if child as an exceptional
circumstance, but court said that the contradictory evidence was quite
evident
• Examples
o Extreme delay and accused's (un)willingness to stand trial (in weak
case)
o Prima facie case for defence's defence
o Will raise a ground of justification
o Need for serious medical intervention
o Low flight risk
o No likelihood of interference w/ witnesses or reoffending
o Look at previous convictions/history
ALTERNATIVES TO BAIL
• Release on summons to appear in court

• Release on warning
• Committal to place of safety
• Supervised release
103
SU 12: Indictments and Charge Sheets 104
SU 12: INDICTMENTS AND CHARGE SHEETS
INTRODUCTION
Const s
32
CPA s Sv
324 Mponda
Indictments
and Charge
Sheets
PAIA s Const s
30 35(3)(b)
Const S
35(3)(i)
• Right to information – S 32 of the Constitution

o Access to police docket: may see what was charged w/ in order to
properly defend self
o S v Mponda
▪ Can’t defend self properly w/ insufficient detail on charge /
indictment
▪ The accused was charged w/ rape
▪ Evidence of multiple rapes over a long time
▪ The charge sheet only made reference to 1 rape = trial by
ambush
▪ Formulate defence based on 1 instance OR minimum sentence
▪ Charge sheets inadequately formulated is a violation of s
35(3)(a) of the Constitution
▪ Sentence + conviction were overturned
o Even if you understand charge, still can’t defend self due to
insufficiencies
• Adequate time/facilities to prepare own case – s 35(3)(b)
104
• Properly exercise the right to challenge and adduce evidence – s 35(3)(i)

o Cannot challenge a charge when it is only heard in court for the frst
time = cannot adduce charge
o Small inaccuracies don’t necessarily impact the validity of the whole
trial
• S 30 of PAIA
• Charge sheet v indictment
o Be written in clear and unmistakeable language
o Must be clear to reader what is being charged
• S 324 of CPA
o Technical irregularity / defective indictment
o Trial is instituted denovo due to the technical irregularity
HIGH COURTS
• Details of crime
• Details of witnesses
• Summary of material facts
o S v Makayi
▪ The state isn’t bound by the summary
▪ The summary is meant to help the accused understand the
charge + fill in picture of cryptic charges
▪ Highlight what happened
▪ No real detail in summary = charges should have been more
detailed
▪ Remedied by a proper opening statement by the state (but the
state is not obliged to)
▪ In the US, this is called a Brady violation - when a prosecutor
fails to provide a defendant or criminal defence attorneys with
any evidence that is favourable or helpful to a defendant's case.
▪ Summary can also be so detailed that it becomes misleading
▪ Information would b e almost misrepresentative of the facts
• Time
o At least 10 days, excluding Sundays and public holidays
105
o The accused can agree to a shorter period

o CPA s 144(3)(a) + s 87
▪ Requesting further particulars
106
107
LOWER COURTS
• A summons should be served at least 14 days before trial – s 54(3)

• Lodge a charge sheet w/ the clerk of the court – s 76(1)
• Not served on the accused but presented in court
• Accused is brought to court on written notice
o Summons or under arrest
• Accused may examine the charge sheet at any stage – s 80
FORM AND SUBSTANCE
108
Relevant offence Sufficient particulars
•Definition of crime •Time, date, place

•Statutory wording -> very complex •not always relevant
•Common law crime -> crime is described •necessary for accused to form defence
•Victim
•If property was involved, it must be stated
•May state 'unknown'
•breaking and entering to commit an
unknown crime
•intention unclear
•Aggravating circumstances
•don't have to state penal consequences
•minimum sentence applicable must be
alleged
•Common purposes
•must be alleged
•S v Stephens
EXEMPTIONS, PROVISIOS, QUALIFICATIONS, AND EXCUSES
109
• S 90 of the CPA lists exceptions (not applicable to the accused in terms of

statute) which must be proven by the accused -> exculpatory facts
• Incriminating facts by state
o On the charge sheet: they aren’t obliged to, but can’t necessarily hide
the information
• For example
o Possession of certain types of meds -> prove licence to possess
• Unnecessary averments by the state are excluded
o Unless of course it helps the defence
OBLIGATION TO PROVIDE FURTHER PARTICULARS
May request particulars or

s 87
CPA
further particulars from the

prosecuter on the charge
Before trial or at trial, as long
as it's before evidence has
been led
Where the court refuses to provide further particulars, it amounts to a failure of
justice and the sentence may be overturned
S V STEVENS
Facts
• Accused 1 -> infanticide

• Accused 2 -> attacked the deceased
• From the summary of the substantial facts, it appeared that the state intended
to rely on the doctrine of common purpose
• Accused made a request for further particulars to the indictment
110
o Required details of the states allegations to the exact involvement of e/

accused, etc
• Contents of police case docket made available -> common purpose request
remained unanswered
• State said they were not in possession thereof
• Defence: no facts were contained in the evidence to determine on what basis
the state alleged the existence of a common purpose
• Defence requested the court to find that no prima facie case existed and to
squash the charges
o They said it was contrary to presumption of innocence and right against
self-incrimination
Legal question
• Is the accused prejudiced, having been refused the further particulars

requested?
Decision
• Common purpose must be alleged

• Accused is entitled to as much information concerning the offence as will be
necessary for the thorough prep for their defence
• Constitution: right was elevated to the extend that the state can no longer
claim privilege over the contents of the docket
• The state was not in possession of the info sought, and was not in a position
to furnish a reply to the defendant’s request.
• Differentiate between particulars which are necessary to inform the accused
of the case against them and the evidence which may be led as proof of the
commission of the offence
o Obligation to disclose witness statements + contents of docket + details
of evidence
• Balance the accused’s need for a fair trial against the legitimate interests of
the state in protecting the ends of justice -> court exercise a proper discretion
against legitimate interest of state in protecting the ends of justice
• Consider nature of the case + type of offence
111
o Lack of witnesses, circumstantial evidence

o State isn’t in position to say exactly what each of the accused did in
relation to the offence
• ‘If I compel the state to furnish the particulars in the present case it might
ultimately have the effect of barring a prosecution’
• Full disclosure of the document + charge sheet + summary of substantial facts
= all info state can give
o Whether this amounts to a strong or a weak case -> judge cannot say
• NOTE: Shabalala v Attorney-General
o Trial by ambush no longer exists
o However, courts must guard against the abuse of s 87
S V MPETHA
Facts
• 19 accused – terrorism and public violence

• Indictment contained insufficient detail
• Further particulars were requested
• Accused gave notice i.t.o. s 87(1)
Judgement
• Charges were unclear, repetitive and confusing

• Lack of particularity: use of particulars is intended to meet a requirement
imposed in fairness and justice
• If the prosecution does not know any particulars, it can simply say so
(protected by s 84(2) CPA)
• Correct test:
o whether an accused has been sufficiently advised of the extent of their
participation depends on the circumstances of e/ case, which ultimately
reduces itself into one of fairness to the accused
• the greater the lack of proper information in the summary of substantial facts,
the greater the need is for detailed particulars to be supplied to fill in the
picture sketched in the outline by the indictment
112
• where a common purpose is alleged -> fair that the state should, in respect of
e/ accused, give particulars of the facts upon which reliance is placed in order
to establish the common purpose
DEFECT IN INDICTMENT/CHARGE
• Exceptions, excuses etc must be proven by the accused

• There might be a defect in the charge sheet or indictment
o Accuse name / some kind of description is not in the charge
• Remedy = automatic cure
o If a charge sheet / indictment does not adequate inform the offence. It
can be cured automatically as long as evidence proves the offence
o The averment may not indicate that the accused acted intentionally, but
the evidence can be referred to -> charge sheet/indictment can be
automatically cured
Automatic
s 88 of the CPA ,ust be read w/
cure s 86
during trial
No where is said that this was

'intentionally'
Example:
However, evidence shows it
was intentional act of
Indictment can be murder
automatically cured
• No one brings this to the attention of the state

o The cure happens automatically – its cured by evidence
o At the very least the offence should be named on the indictment
113
s 88 only in the
absence of an
application for
amendment of
indictment
not replacement offence named
does not disclose

evidence proper
offence
s Where a charge is defective for

the want of an averment which is
an essential ingredient of the
88 relevant offence, the defect shall,
unless brought to the notice of
the court before judgment, be
cured by evidence at the trial
proving the matter which should
have been averred.
• S 86: correct an error in a charge sheet
114
Essential allegation missing
Variance between allegation and evidence
Technical
words/particulars omitted or inserted
State requests or court order made
deliberate process formal order
Before trial or during prosecution's case
• Conditions
o Must not be prejudicial to the accused’s defence
o Must be made before judgement, or at most during the prosecution’s
case
▪ Latest it can be amended is before the conclusion of the
prosecution’s case
S V MAHLUNGU
• Question of whether the charge can be amended i.t.o. s 86 CPA

• The court a quo did not consider the individual case, nor did they assess
whether the amended charge sheet introduced in essence a different charge
• Findings were not simply made in general terms and the statement that
bribery and s 1(1)(a)(i) are not essentially the same is too wide
• The old and new charge sheets contain virtually the same averments
115
• The offence created by s 1(1)(a)(i) of the corruption act is the same as

bribery, and from the evidence there is no question of a new or different
offence
• The test is whether the amendment would harm the accused in their defence
• Only thing the magistrate wants to achieve is to change the name of the
offence of which the accused was found guilty
• Averments against the accused are essentially the same and their defence
would not be affected by it
• The amendment would not be prejudicial in any way
SPLITTING OF CHARGES AND DUPLICATION OF CONVICTIONS
• Very technical and terminology is NB in this piece of work

• Many crimes may result from any one offence
• The question: may be accused be charged with all possible offences?
o S 83 CPA -> yes
▪ Any number of charges may be tried at once in the form of
charges in the alternative -> splitting of charges
o You cannot convict the accused w/ a duplication of conviction
▪ No rule against the duplication of charges
• Act/omission
s 336 constitutes offence

under two or more
statutory provisions or
CPA is an offence against a

statutory provision and
common law
• S 336 only comes into play if you have been accused of a statutory crime
• S v Whitehead -> test in court
116
2. Single intent test

1. Separate facts test Evidence test Separate intent =
If the separate offence
evidence/facts
are the same =
cannot convict
If identical facts
prove 2
differented
offences ->
duplication
• These tests assist the court in making a decision guided by common sense,
fairness to the court and the accused
• Often you would see that the court does not look at the test and only use
common sense, indirectly applying the tests
• Not all facts are clear and straight forward, some scenarios are full of grey
areas
S V WHITEHEAD
• Accused were convicted of public violence and culpable homicide

• Attacked striking municipal workers -> one of the workers died of his injuries
• Does he guilty verdicts on the counts of public violence and culpable homicide
constitute a duplication of convictions?
• Count 1: appellants are guilty of public violence / count 2: appellants are guilty
of culpable homicide
• Majority decision
o In essence the allegations are identical
o In proving that part of count 1 the state on the same facts proved count
2
o Proof of culpable homicide as part of the offence of public violence of
necessity proved the allegations in count 2
117
o Nowhere in his judgement does the magistrate indicate that in

convicting the appellants on the main count he did not take into
account the evidence relating to the wrongful killing of the deceased
o If in the present case the state was unable on count 2 to prove the
cause of death, appellants could have been convicted of public
violence – but then they would have been found guilty of public
violence on count 1
o Improper to convict an accused on 2 offences
o Both counts where the evidence was that the unlawful killing took place
in the course of the fighting
o State may put as many charges in a charge sheet as could be proven
by the facts -> does not follow that the court is entitled to convict on
duplicated charges
o Appellants should not have been convicted on count 2
• Minority decision
o Neither the state nor the defence would have conducted the trial
differently had para (c) not been included in the public violence charge-
sheet
o Parties were under no illusion that they were dealing w/ 2 separate
charges even though the para mentioned was included in the charge-
sheet dealing w/ public violence
o The proper enquiry is whether in reality there has been a duplication of
convictions
o Should be borne in mind that a single act may have numerous
criminally relevant consequences and may give rise to numerous
offences
o No infallible formula to determine whether or not there has been a
duplication of convictions
o Matter is correctly left to common sense, wisdom, experience and
sense of fairness of the court
o Consider if the definitions of those offences in regard to which a
possible duplication might have taken place
o The tests are no necessarily all decisive
118
o State can and often will be able to prove the crime of public killing
w/out any reference whatsoever to the negligent killing of another
person, and the opposite is also true
o Common-sense approach: can hardly be said that a group of people
can have a common intention to commit culpable homicide, as the fault
element of this offence by definition lies in negligence
o Conviction on the charges of culpable homicide does not amount to a
duplication of convictions and must therefore be confirmed
S V TIRY
• In Prinsloo, court said that you can charge

• Minority said that management is the same thing
• In Tiry, one was the mastermind, someone else was managing, and someone
else was selling the drugs themselves
• The SCA said that we should look to the fact that they
• Convict them of participating + managing
• In Prinsloo, she operated a ponzi scheme and also participated in getting new
members
• Clear that there are 2 offences: participation and management
• In Tiry, he was stealing the petrol and selling it – managing the enterprise
• SCA: it would be improper to convict someone of managing and participating
because they have dirtied their hands
• They should only be charged w/ managing only
• SCA in Prinsloo said that it is not impermissible to convict someone of
managing and participating
• Minority in Prinsloo said that you should look a bit closer
119
S 83 Charge where it is S 336 Act or omission

doubtful what offence constituting offence under two
committed or more laws
Where an act or an omission constitutes an

If by reason of any uncertainty as to the
offence under two or more statutory
facts which can be proved or if for any other
provisions or is an offence against a
reason it is doubtful which of several
statutory provision and the common law, the
offences is constituted by the facts which
person guilty of such act or omission shall,
can be proved, the accused may be
unless the contrary intention appears, be
charged with the commission of all or any of
liable to be prosecuted and punished under
such offences, and any number of such
either statutory provision or, as the case
charges may be tried at once, or the
may be, under the statutory provision or the
accused may be charged in the alternative
common law, but shall not be liable to more
with the commission of any number of such
than one punishment for the act or omission
offences.
constituting the offence.
JOINDER OF SEVERAL ACCUSED
•criminals may be joined together
S 115 •particpants
•accessories after the fact
•combination
CPA
•not limited to people who committed the
S 156 same offence - some criminal transactions

require different role players and different
actions
•opinion of prosecutor
CPA •evidence of one admissible at the other
120
SU 13: The Court 121
SU 13: THE COURT
APPOINTING ASSESSORS: LOWER COURTS
• The magistrate may call assessor if they feel it is expedient to the

administration of justice
o Must be done before judgement is read
o May call one or two assessors
o Judge has discretion to call
Cultural, social and

education
background of
accused
Nature and
Relevant factors
seriousness of
considered
offence
Interest of
community
• Regional court
o Court must be summoned (even if accused waives his rights)
• If assessors are not called when they should be called – highly irregular and a
failure of justice
• Formally start their duties after plea has been entered and recorded
o Not present at the bail hearing
• Role of assessors in terms of decisions by the court
o Matters of fact
▪ Assessors may only decide on matters of fact
▪ Uncertainty as to what caused someone’s death, i.e. factual
causation
121
o Matters of law + rules + procedures = part of substantive law = cannot

be answered by assessors
• One judicial officer
o Deciding vote on matters of fact
o If 2 assessors vote + one judicial officer, then the assessors will have
the deciding vote
o Assessors: no experience necessary
APPOINTING ASSESSORS: HIGH COURT
• One judge sits alone w/ one or 2 assessors

• Judge has disclosure to call assessors
• The assessors in the HC has experience in matters of administrative justice or
technical expertise in the field that the crime is about
• Can recuse assessors if assessor is problematic or biased
• Assessors can outvote the judge on matters of fact
RECUSAL OF ASSESSORS
• On application by prosecutor or accused

• Order by magistrate before end of proceedings
o Can be problematic if person has sat in on a lot of proceedings
• Assessor may request own recusal
• What may cause recusal:
o personal interest in proceedings, potential conflict of interest, potential
bias, absent death
• S v Mbatha
o Test for recusal
o Assessors are sworn in as members of court like a judicial officer
o Work is limited to findings of fact
RECUSAL OF JUDICIAL OFFICER
• General principle developed through common law rules – developed by courts

o No set of requirements – discretion
o Decision to not recuse self can be problematic, or a grounds for appeal
122
• Duty on presiding officer to recuse self under certain circumstances

o Code of judicial conduct for SA judges: when judicial officer should
recuse self
▪ Conflict of interest
▪ Suspicion of bias
▪ Objective facts
o Not forcing self to recuse self, but should alert you that you maybe
shouldn’t preside over the case
• S v Mkolo
o “what was required of a judge was judicial impartiality and not complete
neutrality. It is accepted that judges are human and that they bring their
life experiences to the bench. They are not expected to divorce
themselves from these experiences and to become judicial
stereotypes. What judges are required to be is impartial, that is, to
approach matters with minds open to persuasion by the evidence and
the submissions of counsel”
APPLICATION FOR RECUSAL OF JUDICIAL OFFICER
Requirements of the test for judicial bias:
1. suspicion that judicial officer might be

biased
2. Suspicion = “reasonable person in

position of accused”
3. Suspicion on reasonable grounds
4. Objective test: suspicion reasonable

person would, not might, have held
• Actual and perceived bias – S v Le Grange
123
• Done preferably at commencement of trial, but not always possible. If it is

done too late, then a trial de novo must be ordered.
• Application for recusal must be respectful.
• Judge mustn’t have communication with a party without the presence of the
other -> can’t be a discussion w/out both parties being present.
• Recuse self if involved in a case beforehand -> cant judge a substantive
matter where you’ve judged on bail -> aware of accused’s previous
convictions, then likely shouldn’t adjudicate a subsequent trial (S v Olivier:
involved in child’s court, child is now an adult) -> someone previously taken
confession of someone, then they may not preside over matter of said
confession
• Code v test: judge is asked to recuse self -> test / code -> point of reference
for when a judge should recuse self
S V LE GRANGE
• Judicial officer went outside of role of impartiality

• Accusatorial v inquisitorial
• Judicial officer is not allowed to cross-exam accused
• Proper judicial behaviour
o Justice must be done and be seen to be done
o Approach the trial and accuse w/ open-mindedness, impartiality and
fairness
o Judicial officer should refrain from questioning witnesses/accused in
such a way that it no longer makes it possible to objectively adjudicate
the matter
o Also not question in such a way to intimidate the witness or accused,
unduly influence them or the nature of their replies, thus impacting their
demeanour and credibility
• Past point of recusal – questioning was improper
• Remedy: re-trial before another presiding officer
COURT: IMPARTIALITY AND FAIRNESS
124
2. Justice =
1. Justice must
substantive & 3. Impartiality &
be seento be
procedural courtesy
done
justice
6. Questioning (S 5. Decisions on 4. Audi alteram

v Le Grange) evidence partem
7. Fairness to the
accused
125
SU 14: Arraignment and Plea 126
SU 14: ARRAIGNMENT AND PLEA
PLEA BARGAINING: PLEA AND SENTENCE AGREEMENTS
POSSIBLE LONG QUESTION!
Pre-trial Informal: traditional
Plea bargaining
Not the same as s 204 Formal: statute (s 105A
CPA ('state witness') CPA)
TRADITIONAL
“Negotiation in which accused agrees to plead guilty

to a charge in exchange for concessions by
prosecutor. Accused waives right to trial, losing any
chance of acquittal, but avoids conviction on a more
serious charge. The agreement will include a
specific recommendation on sentencing. Court must
confirm validity of plea agreement.”
• Impact on sentencing
• Prosecution does the negotiating
o Charges / what accused is pleading guilty for
• Court still does the sentencing, prosecution merely makes recommendation
as to sentencing
• Usually for less serious offences, but it can be for any offence
• Informal -> not many rules
• Pleads guilty to different grounds so as to get a lighter sentence
126
• Used when CPA procedure fails

o Not attempt new CPA procedure pro non scripto plead and sentence
agreement
o May attempt common law plea agreement
▪ Recommended that CPA sentencing is usually followed
• Informal agreement
o Prosecution agrees to recommend reduced sentence
o Cannot bind court
• Based on principles of fairness and justice
Guilty: different
Lesser/alternative
grounds as Multiple accused
charge
alleged by state
Provide
information: Withdrawal:
investigation [cfs/a certain charges
204 CPA/SPW]
UNDER CPA
• Plea and sentence agreement

o Accused and prosecutor can reach an agreement on sentence
o Court only varies where considers it unfair / unjust
o Either party can initiate
o Whole agreement must be in writing and before pleads / before trial
• If this fails, then either a trial de novo must be instituted or the common law
procedure must be followed
o This whole procedure will then be regarded as pro non scripto
o Cannot enter into a new CPA plea agreement under the same facts
• The prosecution has formal authority to enter into a plea and sentence
agreement
127
o i.e. the prosecution and the accused w/ their legal rep have to comply
w/ these formalities
o The Sassin case questioned whether the formalities were too strict
o Wickham said that victim participation is necessary, but this doesn’t
give an unqualified right to the victim to be heard on demand
• Role of the court
o Accused must plead guilty
o Inquisitorial features present
• Court is satisfied that the accused is guilty, then they can continue unto the
sentencing agreement
o Sentence is just = convict accused and impose the agreed-upon
sentence
o Not just this = must also inform parties if the court decides to impose
an alternative sentence
• Appeal: Armugga
• Non-approval by court of sentence:
Prosecution and
accused may...
Abide and go to
Parties can withdraw
sentencing in normal Try the common law
and start a full trial
manner according to procedure
de novo
the judge’s discretion
•
o The old plea and sentence agreement is considered pro non scripto
• This process must be transparent
o Victim does have a role to play, but they do not have a veto right ->
court may consider their input
o Every party involved must be kept up to date on the happenings
• NDPP directives
o Victim must be consulted
128
o Charge of murder –relatives of victim must be consulted

o Minimum sentence applicable: agreement must contain reasons for
deviation from minimum sentence
“It is assumed that people are utility maximisers. People decide to undertake an
activity, including the commission of a crime, if one essential criterion is met. An
activity will be performed if the perceived or expected potential net benefits from
time spent in that activity outweigh the expected net benefit from time spent in
any of the perceived available alternatives. In the same set of circumstances,
different people will make different decisions depending upon a multitude of
factors such as attributes, skills and experience. The decision to offend is not
unlike an economic labour supply problem involving a timeallocation decision. Is it
rational to spend time committing this offence rather than doing something else? -
NG Fielding, A Clarke & R Witt (2000)
S V SASSIN
Facts
• Accused charged w/ many counts of fraud

• Also charged w/ several statutory offences
• Plea and sentence agreement concluded -> pleaded guilty to most of the
counts of fraud
• Sentence agreed upon:
o Fraud -> 15 years in prison, 6 years conditionally suspended
o Statutory offences -> sentenced to fines or imprisonment, fully
suspended
Decision
• Plea agreement
o Signed by counsel for the state + accused + accused’s attorney
o Attached must be a written explanation of the accused’s plea of
guilty
129
▪ Sets out in full the factual and legal basis of said plea
• Counsel for state must have a certificate
o Be duly authorised to negotiate and enter into a plea agreement
• Handed in
o Affidavit by investigating officer: satisfied w/ plea agreement and
proposed sentence
o Affidavit by victims: satisfied as well
• Victim participation
o Essential cog in the machinery of plea bargaining
o Lends legitimacy and credibility to the process
o Accommodates personal interest of the victim + serves broader interest
of criminal justice system + society
• Whether proposed sentence is just
o Sentencing court has to exercise discretion to determine whether the
sentence is appropriate
o considering facts and circumstances + interest of society and
victims + balanced against personal circumstances of accused
• Departure from minimum sentencing
o Requires substantial and compelling circumstances + consideration of
all facts and circumstances
Note
• Proof by prosecutor of authority to negotiate a plea agreement can be

dispensed off when handing over a certificate from the NDPP
• S 105(1)(a) doesn’t need to be so strictly interpreted
• Prosecutor is not bound by the complainant’s representations: agreement
may proceed without acceding to requests by complainant
o May be used to consider justness of sentence
S V ARMUGGA
Facts
• Number of accused were charged w/ conspiracy to commit fraud

• Plea and sentence agreement and pleaded guilty to fraud
130
• Sentence agreed upon -> 5 years

• Few later appealed against this sentence: sentenced imposed induced a
sense of shock and court a quo erred in relying on limited facts
• Sentences were alleged to be unjust
Decision
• Effect of agreement on parties

o Agreement is binding on accused and prosecution, but does not bind
the court
o Right to appeal for those convicted and sentenced pursuant to plea
bargaining agreements
• Right to appeal is a limited one -> granted relief in exceptional circumstances
o Discretion is not a precise formula
• Plea bargaining -> procedure whereby the accused relinquishes their right to
go to trial in exchange for a reduction in sentence
o Bargaining on both sides -> right to go to trial v bargaining away
possible conviction
o Assumptions and mistakes are to be expected:
• Appeal is dismissed and convictions are confirmed.
• Any subsequent action by the accused/prosecution in respect of
conviction/sentence should be conducted purely on the basis of the normal
principles relating to review and appeal.
ARRAIGNMENT
131
“The calling upon the

accused to appear, the
informing [them] of the
crime charged against
him, the demanding of
[them] whether [they] be
guilty or not guilty, and the
entering of [their]
plea...[Their] plea having
been entered [they] are
said to stand arraigned.” -
S v Mahlungu (accused
entitled to judgment after
pleading)
• Accused stands at dock and pleads either guilty or not guilty

• Charges are read then plea is entered
Right to be
informed of
charge
Right to legal
Fair trial rights
counsel
Procedure
Begin and
Adequate time
conclude trial
given to
w/out
prepare
unnecessary
defence
delay
Right to public
trial in an open
court
•
o These rights are not the only fair trial rights
o Broad concept of fair trial
• Accused must be made aware of their constitutional fair trial rights throughout
the procedure
132
o If the accused is unrepresented, then these rights must be explained

by a judicial officer
• Accused stands at dock to plead (unless they have special requirements),
they must plead self (unless a duly authorise representative is appointed, but
accused must still confirm)
• Trial is usually held in an open court
• An accused’s plea must be recorded, otherwise a conviction cannot stand
o If not recorded, then the accused may be acquitted
• Formal objections to the indictment or charge sheet must be taken before the
accused has pleaded (s 85 CPA)
o If the accused has already pleaded, an objection cannot be raised and
the trial must proceed
o The defect can however be rectified during the trial in terms of sec 86
(or 88)
AUTOMATIC PLEA OF NOT GUILTY
1. Refusal to plea
a.Unsure -> must be granted an opportunity to consult an attorney
2. Ambiguity in plea
a.Not directly saying whether they’re pleading guilty or not
b.If a more serious crime is concerned, then must question the
accused on a guilty plea
3. Behaviour
a.Disruptive: may be removed from court, but this is done w/
circumspection -> act in a way that obstructs proceeding
b.Hearing is done in their absence
4. Mental illness or intellectual disability

a.Must be able to distinguish between right and wrong
MENTAL ILLNESS AND INTELLECTUAL DISABILITY
133
• Ability to stand trial

• Must be able to understand proceedings at the moment of trial
S 77
• Criminal responsibility
• Person can be prosecuted, but can raise this defence
• Can then be acquitted, or released subject to conditions, or sent to an
S 78 institution
• Mechanism
• Reports that provide observations of the accused by mental health and
s 79 medical practitioners
OBJECTIONS TO CHARGE
Noncompliance
w/ CPA
provisions
Essential
elements
missing
Vague offence /
S 85(1) CPA offence not
disclosed
Particulars
missing
Objections to
charge ID of accused
missing
After pleading -
s 88 (correcting
errors)
Before
pleading
Failure to
comply
134
• If objecting to charge, then reasonable notice must be given to state

• If the court upholds this objection, then the state is ordered to...
o present further particulars to the accused
o OR to amend charge
• If the state fails, then the court may squash the charge
• Differentiate:
Objections Correction Automatic

to charge of errors cure
• S 85(1) • S 86(1) • S 88 CPA
CPA CPA • No formal
• BEfore • Formal request
pleading request • Cured by
• Before evidence
judgement
DIFFERENT PLEAS
PLEA OF GUILTY
• Differentiate type of offence, as this will dictate the procedure to be followed

• Pleads guilty to everything
o May be convicted and sentenced on plea immediately
o Usually for less serious offences
135
Less serious offences

S/A 112(1)(a) S/A 112(1)(b)
No direct imprisonment Direct imprisonment or
No other form of detention another form of
without option of fine detention without
option of a fine
Serious offences
Fine does not rxceed R 5
000 Or fine exceeds R5 000
No questioning required Questioning mandatory
(but can)
Can convict and sentence S v Paulse2022 (2)
on spot SACR 451 (WCC)
QUESTIONING OF ACCUSED
• If the accused is not questioned, then the judicial officer faces a possible
sanction
• Judicial officer must take care of…
o Educational level of accused -> might not understand charges
o Accused that is unrepresented
• Court must protect against unjust guilty pleas
o This is why judge must question, to give possibility to accused to still
change their plea
• Judicial officer must be satisfied that the accused has admitted to all the
elements of the offence and understands the seriousness of the offence
• Beneficial to the state to question and admit guilt, as it saves time and money
• Accused must admit to all relevant facts + all the elements of crime apparent
o Admissions as subsequent evidential material
• Trial de novo -> admissions made during question could be used
o As they initially weren’t questioned properly
• Accused must make a written statement as to why they’re pleading guilty
• Evidence is presented at sentencing
S V PAULSE
• Accused was caught twice with drugs and plead guilty to both charges
136
• This case went on review and it was found that the initial questioning was
superficial and unsatisfactory
• It must be a fact beyond the knowledge of the accused whether the drugs
were what the state purported it to be
• The accused wasn’t too sure what the drugs were
• Someone charged w/ drug possession, especially when unrepresented,
requires a closer questioning and a more cautious approach
• In other cases: question and find out about drugs
o From a reliable dealer, accused had previously used the drugs, positive
reviews from other users
o Question the accuse if the drugs have desired effects and if they did in
fact consume the drugs
• Different approach?
o S 212(4) CPA: state produce such a certificate -> can convict on the
spot w/ a guilty plea
o Requires for example a scientific analyses of the substance
o Certificate + guilty plea = conviction
o No certificate = more cautious approach
137
CORRECTION OF PLEA
• Done during any stage of the proceedings under s 112 and before sentence
• Where there is doubt re the accused, then s 113 applies
incorrect any other

in law guilty admission valid reason
no valid
admission, defence
only
allegation
• Prosecution continues as normal

• Full trial ensues
• Admissions – stand, serves as proof of relevant facts
• State must prove unlawfulness
PLEA OF NOT GUILTY
138
1. Judicial Discretion to Question the Accused when they Plead Not

Guilty
•No differentiation between seriousness
•Establish the defence of the accused
•Accused may make statement
•Still uncertainty – clear it up
•Discretion of judge
oS v Bepela1978 (2) SA 22 (BT): “intention of legislature is that explanation of plea procedure
should be applied”
2. Right not to Answer Questions

•Constitutional rights
•No need for statement
•Warned before statement or questioning: what they say can be used against them -> right to silence
•Not warned -> procedural irregularity -> not always used as grounds for acquittal -> how serious is
case
•Silent -> can harden state’s case
3. General Purpose of s 115

•Procedure is cheaper and more effective
•Determining basis for defence
•Limited to material/substantive issues are placed in dispute
•May make formal admissions
•Explanation and questioning aimed at narrowing down issues in dispute
oBut not judicial cross-examination
4. Risk of Self-Incrimination
•Must be warned: whatever the accused says can and will be used against them over the course of
the trial
•Formal admissions - S 220 CPA
oAdmit formally to certain fact
oAccused consents hereto
oFormally recorded
oIssue no longer in dispute -> acts as sufficient proof of fact
oNo further evidence led by state
•Saves time
•Can rebut later, if they were manipulated
•Grounds for later cross-examination by the state
•Explanation of plea cannot be sued as exculpatory evidence w/out presentation of evidence
5. Verbatim recording of questions and answers

•Not what questions and answers were
6. S v Hendriks
•can still add charges after accused has plead to charges
•s 81 + s 115 + s 220
•s 81: cant add charges after evidence has been led, but before that it can be added at any time
•plea explanation + q&a are not leading evidence and therefore can still add charges
•being duly warned of silence is appropriate
139
PLEA OF NOT GUILTY AND MORE THAN ONE ACCUSED
• Procedural steps must be taken in the presence of all the accused
S 115 AND SILENCE
• Silence =/= guilty

• Negative inference can be made on reliability
• Evidential risk of conviction when silent -> no rebuttal of state evidence
AUTREFOIS CONVICT AND AUTREFOIS ACQUIT
Constitution S
35(3)(m)
CPA s
106(1)(c) & (d)
• You can’t be convicted on the same charge twice

• Can only be convicted of a crime once
• S v Basson
• Common law
o Manifestations of doctrine of res judicata
o Double jeopardy
140
Autrefois Convict
• Convicted on same Autrefois Acquit
charge before
• Acquitted on same
charge before
PROCEDURE
State must
provide enough
details i.t.o.
Onus on current charge
accused • For the accused to
be able to see
• Raise defence and what facts the
prove self state intends to
• Show previous allege and prove
convictions
DIVERSION
141
Successful compliance
with a diversion order
(juvenile accused) means
that a prosecution on the
same facts may not be
instituted
• Plea is raised
• Look at facts
o Are 2 facts the same?
o In jeopardy of being charged and convicted if same offence -> is
charge for offence 1 the same as for offence 2?
REQUIREMENTS
a. Previous judgement • Guilty or not guilty

must have been • I.e. convicted or acquittedd
delivered by a • Jurisdiction: if court lacked jurisdiction in the first
'competent court' place, then conviction would not have stood
b. Offences must be • Test: necessary evidence

substantially the same
Previous judgement • Convicted or acquitted

on the merits
TYPES OF IRREGULARITIES
142
Type Meaning Can accused Because…

raise plea?
Fundamental Gross or material = No Never even

failure of justice convicted or
Procedurally acquitted
defective
Of a lesser nature No failure of justice Yes Acquittal was on
Court continues w/ the merits
case I.e. court reached

conclusion
S V BASSON
Facts
• Appeal
• Procedural question: whether an appeal was possible from the SCA to the CC
• Accused appeared in HC for over 60 charges, including murder.
• Trial court had squashed certain charges against the accused, and the state
sought to reintroduce them, if the state were to be unsuccessful on appeal.
Decision
• Respondent had been acquitted on all courts

• Appeal arises from these criminal proceedings
• Central issue
o State is entitled effectively to appeal against the quashing of certain
charges at the outset of the proceedings at this stage -> were those
charges wrongly quashed?
o Should the quashed charges not be upheld on the grounds that it
would offend the double jeopardy protection?
• Constitution s 35(3)(m) -> right to fair trial -> protection against double
jeopardy
• S 106(1)(c) and (d) of CPA
143
o No one may be tried twice for the same crime

• Only protected against prosecution in a 2nd prosecution if they were in
jeopardy of conviction in the first
o If previous prosecution was vitiated by irregularity, then it cannot found
a plea of autrefois acquit in a subsequent prosecution
o Accused was not acquitted on the merits and was never in jeopardy of
conviction because the proceedings were so irregular
• Decision to quash counts -> cant raise autrefois acquit -> no acquittal on
merits in respect of quashed charges
o Did not plead to these charges -> never in danger of conviction
LIS PENDENS
• Common law
• ‘same case is pending in another court’
o Crime spanning provinces?
• Convicted -> can raise double jeopardy
• Criminal matter
• Must be explicitly pleaded
• Mostly postponement delaying
144
SU 15: Miscellaneous Matters Relating to the Trial 145
SU 15: MISCELLANEOUS MATTERS RELATING TO THE TRIAL
SPEEDY TRIAL
• S 35(3)(d) of the Constitution
Especially when denied

Loss of personal liberty
bail
Loss of reputation,
Impariment of personal
Prejudice ostracism, loss of
security
income or employment
Fading witness
memory, unavailability
Trial-related prejudice
of witnesses, loss of
quality of evidence
S 342A CPA
• Trial-related prejudice/delay
o Not pre-trial delay
• Court investigates if delays have been unreasonable
145
Duration of delay
• Different cases have different complexities
and requires different amounts of time to Reasons
solve
Can someone be blamed? Effect on the administration of justice

• Court is less willing to intervene if the • Public opinion
accused causes the delay
Effect on the personal circumstances Actual/potential prejudice to the state

of the accused and witnesses or defence
• Legal fees, how long the accused is in • Witness quality degrades
prison, why there's no bail
• Witnesses living in fear
Seriousness, extent, complexity of

charge
THREE STAGES FOLLOWED
3. Appropriate remedy
• Refusing further
1. Investigation into 2. Finding: delay postponement
cause unreasonable or not • Postponement subject to
certain conditions
• Trial de novo
146
• Need to account for stage of trial: if it’s a very late stage, possible that no trial
de novo will be instituted
PERMANENT STAY OF THE PROSECUTION
• S 35(3)(d) of the Constitution

o Not a procedure under the CPA
o Direct reliance on Constitutional right
o Rare instance of this
SANDERSON V AG
• The critical question was whether the ‘particular lapse of time’ is reasonable
• A ‘permanent stay of the prosecution’ is a very drastic remedy
o You are basically asking the court to prevent the state from prosecuting
the case and to never prosecute the case again
• The court considers:
o The nature of the prejudice to the accused
o The nature of the case
o Systemic delays
▪ This refers to issues with the system itself
▪ Backlogged forensic testing kits, police being under sourced,
unique nature (Rodrigues case), political interferences, the NPA
being understaffed, courts being overburdened
RODRIGUES V NDPP
• Mr Rodrigues was an apartheid operative

• He was the suspect in the murder of an anti-apartheid activist – Mr Timol
• Originally, there was no prosecution, as it was alleged that Mr Timol had
committed suicide
o Only an inquest had been held
o There had not been a formal criminal trial, nor was there an
investigation into the cause of death
• Years later, the NPA had wanted to prosecute Mr Rodrigues for the murder of
Mr Timol
147
• Mr R had asked for a permanent stay of prosecution

o Alleged that there had been an unreasonable passage of time and that
the prosecuting authority had had many opportunities to prosecute him
and it was unreasonable to do so 40 years after the event
• Trial had never taken place – Mr R had died
• Alleged to be unfair to Mr R, due to the lack of quality evidence available
• HC: only the HC can hear this application for a permanent stay of prosecution,
and they had refused
• On appeal to the SCA, they pointed out 3 relevant time periods
1: Between 2: Between 3: Between

1971 and 1994 1994 and 2002 2003 and 2017
•The incident had •Truth and •Reluctance to
taken place Reconciliation prosecute people
•The apartheid regime Commission: post 2002
was still in power applications for •Imbargo placed on
•There was no amnesty for testifying prosecuting people or
political interest to at a hearing political unwillingness
prosecute Mr successfully for
Rodrigues reconciliation
purposes
•No challenge to the
findings of the •There was no
inquest criminal prosecution
for apartheid crimes
•This period cant be
by the NPA during
considered as a
this period
period they can say
was unreasonable •Mr R did not apply for
due to the lack of amnesty during this
political will to time
investigate into the •Not relevant time
death period due to the
operation of the TRC
and giving people the
opportunity and time
to apply for amnesty
After 2017
• A 2nd inquest was held

• Mr Rodrigues made assertions as to agreement, no evidence being presented
for this
• In 2017, he was charged w/ murder
• SCA: as soon as all 3 periods were over, the NPA had instituted charges
148
• During these 3 periods, it had not been possible for the court to institute
charges
• The delay was therefore unreasonable
• During the appeal to the CC, Mr Rodrigues had died
WITNESSES
ATTENDANCE
• A witnesses may be subpoenaed to attend the trial – either by the state or by

the accused
• It is an obligation for a witness to attend a trial -> if they don’t obey the
subpoena, they may be arrested
• They may even be arrested before the trial starts if it becomes clear that they
intend to flee or abscond
o If they are a material witness in the case, they may even be put in
prison
• S 186 of the CPA: a court may call witnesses under certain circumstances
• A witness may request support services
o These are to be determined by the minister
• A witness may be placed into protective custody if they feel fearful or
intimidated
o Protective custody: Witness Protection Act 112 of 1998
o Protection order under Protection from Harassment Act 17 of 2011
• No child may be placed into witness protection w/out parental consent
• If a witness plans to tamper w/ other witnesses, they may also be placed into
custody after first being brought before the judge in their chambers
RECALCITRANT WITNESS
• S 189 + s 205 of the CPA

• Also known as an uncooperative witness
• They refuse to take the stand or take oath
• There is no consequences if they have a just excuse
149
o An investigation into this excuse does not amount to a criminal trial

• However, mala fide failure to take the oath / testify / appear as witness could
lead to 2 – 5 years in prison
o Done w/ circumspection
• Case can still go on in the mean time
• Requirements
o Witness must’ve refused to have taken the oath or to testify
o There has been a proper inquiry into why they’re refusing
o There is no just excuse as to their refusal to testify
• A just excuse is wider than a lawful excuse
o Demands of society and justice must be considered – how important is
the case?
• Not a full trial, but still given a chance to consult with a legal representative
and prepare
OPEN JUSTICE
• S 35(3)(c) and S 34 of the Constitution + S 152 of the CPA

• Open justice is a broad concept and refers to the right to have trial in an open
court
• Not all cases are reported, so it’s very important to have this right to open
justice
• Enhances transparency and accountability
MEDIA
• For example, the Pistorius case took place completely on TV

• Freedom of expression is also a foundational principle of an open and
democratic society, which includes the media / freedom of the press and
freedom of expression
• Privacy of parties involved do not outweigh the freedom of the press
and the media and the associated rights of open justice and open court /
public hearing
VAN BREDA CASE
150
• Application to broadcast trial – court had to consider whether to allow

• The default position focuses on media freedom: the media are permitted to
broadcast the case if they approach the court
• UNLESS there’s provable prejudice or a real risk that prejudice will
occur, then the court won’t restrict the nature and scope of the
broadcast
• Mere speculation of prejudice is not enough -> they must show a
demonstrable prejudice to limit the scope of the broadcast
• Application is at the discretion of the court who determines the merits on a
case by case basis
• A court may issue certain directives
o How proceedings are controlled
o Ensuring the decorum and dignity of the court
o To prevent distraction by lights
o Ensure fair administration of justice by ensuring balanced views
RESTRICTIONS: OPEN COURT
Public Necessary to protect state/innocent

Interest from unnecessary harm
Prevent harm to victim or witnesses
Safeguard the privacy interests of

victims and children
Encourage the reporting of sexual
offences
MENTAL ILLNESS AND INTELLECTUAL DISABILITY
151
S 78(1) CPA
• No criminal responsibility due to
mental illness or intellectual disability
• Substantive law defence
• Couldn't distinguish between right s 77 CPA
and wrong and act in accordance w/
that distinction at the time of the • Non-triability due to mental illness or
commission of the crime intellectual disability
• Procedural issue
• S 77 questions whether the accused as a mental illness at this very moment

o Can they understand the nature of the trial proceedings and be able to
assist in their defence
• If someone is suspected of suffering from a mental illness / intellectual
disability, an enquiry must be done under s 79 of the CPA
o They are to be evaluated by mental health experts
o 30 days of observations
o The experts fail reports to the court
o The court makes a determination
• The accused bears no onus: all up to the reports to determine whether the
person can go ahead w/ defence
• If the issue is raised by the accused, then the court must determine whether
the accused is trying to evade prosecution or whether they legitimately have
an issue
S 77
• Changed the wording and conditions of s 77 – s 79 of the CPA

o De Vos Judgement
• Court may grant an adjournment if there is uncertainty of the accused’s
mental state, and the court may also raise the issue
• S v Nel
o Accused stood on dock and fell forward and started foaming at the
mouth
152
o State, on their own accord, sent the accused for observation and
evaluation
o Can be raised even after conviction and sentence
o ‘now’ question
ADJOURMENT AND POSTPONEMENT

Postponement
Before the hearing starts Hearing already

Case hasn't formally underway
started yet Defence wants to consult
w/ client, court wants to
evaluate something,
institute an interlockutory
order
Adjournment
Rescheduling of court
proceedings if
adjournment is for a long
time
• Terms are often used interchangeably

• Discretion of judicial officer
• S 35(3)(d) -> bearing in mind the accused’s right to a speedy trial
• If the accused fails to attend or remain in attendance, this is a criminal offence
• Basic principles considered:
153
Interest of Presumption
society of innocent
Have persons not
escape from
Plus right to a speedy
convictions if they're
hearing
guilty and to have them
be found actually guilty
Refusal to grant
postponement -> can
argue on appeal that
Given a proper chance
they weren't given
to defend self
enough time to prepare
their case in the face of
new evidence
154
SU 17: Course of Trial 155
SU 17: COURSE OF TRIAL
• S 35(3) of the Constitution

• Everything done during the course of the trial must be done in line w/ fair trial
rights
• The criminal prosecution process is adversarial in nature, and we must
recognise that there is a power imbalance
o The state has great resources and they have the power to inflict
punishment
o Often, people are in the less powerful position due to the lack of
resources to properly defend selves
COURSE OF TRIAL
Prosecutor: Case for s 174 CPA Case for Closing

Opening prosecution • S v Zulu defence arguments
statement • Evidence in chief • S v Lubaxa • s 151 accused • Both parties
• s 150 CPA - • Cross and re- • S v Devani may address
discretion examination • Possible court
discharge of • Evidence in chief
accused • Cross and re-
examination
PROSECUTION: OPENING STATEMENT
• Under s 150 of the CPA

• Not obliged to do so, and there usually isn’t an opening statement for less
serious or less complicated offences
• The prosecution usually refers to the evidence they are planning to present
during their evidence in chief
155
• Must be careful not to refer to inadmissible evidence during this opening

statement
CASE FOR THE PROSECUTION
• Presents evidence and lays their case out

• Call witnesses
o Questioning witnesses = evidence in chief
• Defence has the opportunity to ask the state’s witnesses questions as well
o Known as cross-examination
o Trying to unnerve the state’s versions of events
o Usually it’s a bit more aggressive, a bit intimidating and sometimes
traumatic
• Re-examination
o Questioning own reference again to clarify issues brought upon by the
opposition
STATE CLOSES CASE

• Application for discharge may be brought
Defence says that the state

for discharge
Application
has proven no prima facie

case
Requests client be discharged
bc the state failed to reach
their burden
Effect is the same as
acquittal: case won't go ahead
156
• An application for discharge could bring an end to the case: the defence won’t
call any witnesses or present their defence, because the state didn’t comply
w/ their onus
• Therefore, there isn’t enough evidence to convict the accused
• Very powerful!
DEFENCE’S CASE
• Presents evidence in chief

• Calls their witness
• State cross-examines the defence’s witnesses
• Defence may then re-examine their witnesses
• Accused may also then address the court
o They could also be silent during the whole thing if they want to be
CLOSING ARGUMENTS
• From both sides

• Usually a summary of the evidence presented
DISCHARGE OF THE ACCUSED AT THE CLOSE OF THE STATE’S CASE
S 174 CPA
If, at the close of the case for the prosecution at any
trial, the court is of the opinion that there is no
evidence that the accused committed the offence
referred to in the charge or any offence of which he
may be convicted on the charge, it may return a
verdict of not guilty.
157
MEANING OF ‘NO EVIDENCE’
• Is the evidence of such a nature that the court will convict you?
• Multiple charges: discharge on only one
• Refusal to discharge is not appealable, but it may be an irregularity
S V SHUPING
• Created the ‘standard test’
Shuping Standard
Test
Is there evidence on
which a reasonable
person might convict?
Yes: no discharge No...
Is there a reasonable
probability that the
defence's evidence
might supplement the
state's case?
Yes: no discharge
No: Discharge
• In the case of no discharge…

o The accused is placed on their defence, hoping that the accused will
incriminate themselves
o This is constitutionally problematic, as the duty is on the state to
convict you
S V LUBAXA
158
• The Shuping test is problematic: it hopes that an accused would incriminate

themselves based on their decision to deny application
• If, at the end of the state’s case and there is a single accused, there is no
possibility of conviction, unless the accused is going to deliver self-
incriminating evidence and the court omits to discharge, this would be a
violation of the constitutional rights of the accused
o S 35(3)(h)
o The state cant help that defence will supplement their case
Modified test
Lubaxa
Is there evidence on
which a reasonable
person might
convict?
Yes: no discharge,
No
inquiry stops
Is there a reasonable
possibility that the defence
may supplement the
state's case
Via incrimination by
a co-accused or
accomplice: NO
DISCHARGE
Via self-
incrimination:
DISCHARGE
• The court can raise discharg

o The court is duty bound to bring up the issue itself if no one else
does
159
• Where there are multiple accused and all want an application for
discharge, it may be heard at the end of the individual cases
• Refusal to discharge cannot be appealed -> it is an interlocutory order
S V ZULU
• Duty of the court to explain to an unrepresented accused of their right to apply

for discharge if the court doesn’t raise the issue on their own
S V DEWANI
• An accused person is entitled to be discharged at the close of the case for the
prosecution if there is no possibility of a conviction other than if he enters the
witness box and incriminates himself
• In deciding whether an accused person is entitled to be discharged at the
close of the State's case, the court may take into account the credibility of the
State witnesses, even if only to a limited extent
• Where the evidence of the State witnesses implicating the accused is of such
poor quality that it cannot safely be relied upon, and there is accordingly no
credible evidence on record upon which a court, acting carefully, may convict,
an application for discharge should be granted
o i.e., looking at the quality of evidence
o very serious -> acquitting an accused and they may not be charged
again
160
SU 18: The Verdict 161
SU 18: THE VERDICT
INTRODUCTION
• An accused is entitled to a verdict, which means the court is under the

obligation to provide a verdict
• They may do it immediately, but they may also take their time, and time is
necessary for complicated matters
• The court must also give a reason for each and every charge, and the
accused must still be sentences
• For simple cases, the verdict and the sentence are given on the same day
• For difficult cases, the court needs time to evaluate the evidence and deliver
proper judgement
• Judgement must also be in a language that the accused understands
o An interpreter must be present if the judge cannot deliver judgement in
the accused’s language
FOCUS
• General principles regarding competent verdicts

o Judgement must be given in 1 single judgement and not be spread out
o Must provide reasons for judgement, as this impacts fair trial rights
▪ If they wish to appeal, they must know why they were convicted
in the first place and have enough reasons to challenge the
judgement
• Amendment of verdict
TYPES
161
Judgement reserved
• high profile cases where the judge
takes time to evaluate facts
• Conclusion must be reached on e/
count
• Sentencing likely to take place on a Ex Tempore
different day
• present mitigating circumstances • Immediately delivered
that the court must account for • Straight forward facts
when deciding on sentence • Convicted/acquitted on same day
• State presents aggravating • Can go over to sentencing as well
circumstances to make sentence • parties must present evidence on
heavier sentencing too
REASONS
• Constitution s 35(3) + CPA s 146

• Reasons for judgement and why there’s a conviction on every charge
• Insufficient reasons -> impacts fair trial
• Appealing case: appeal court will take the evidence presented in the court a
quo as correct unless there was a fundamental misdirection
o Importance of proper evaluation of evidence in the first place
o Misdirection -> procedural irregularity -> goes on review
• Reasons can’t just be mechanical; the court must look at the facts of each count
and the elements of each crime
THE VERDICT
COMPETENT VERDICTS
• General rules: s 270 CPA

o Specific rules: s 256 – 269 of the CPA
162
“The purpose of the competent verdict is to provide the state

with the ability to prosecute an individual for a lower level
crime – which the evidence establishes – in the event that the
more serious crime cannot be proven beyond reasonable
doubt” Phakane v S
Lesser
offences
Robbery General Based on

elements
and theft
rules proved
Murder
and
culpable
homicide
• NB: remember the rule against doubling of convictions

• Convicted of a less serious offence that was not included in the indictment
and charge sheet
• Problematic? Trial by ambush?
o Fair trial rights – right to be informed of charge against you in sufficient
detail to defend that charge
163
o If you don’t know that you can be convicted of a lesser crime, then you
cannot adequately prepare a defence
GUIDELINES TO FAIRNESS
S V CHAUKE
• Accused was warned of possibility of a competent verdict in terms of which

they may be convicted of a lesser offence
• Their legal representative has a duty to inform the client of the
possibility of this competent verdict
• There is also a duty on the court to inform an unrepresented accused of
this possibility, or at the very lease be warned thereof
FIELIES CASE
• Court emphasised the right to a fair trial includes the right to be informed of
the charge before you
o This would include the right to be informed of the possibility of a
competent verdict
• It's not necessary to include a reference to a competent verdict in the charge
sheet itself
• It is very desirable to inform the accused of the possibility of a competent
verdict timeously before they plead
• This possibility must also be emphasised to an undefended accused (court is
obliged to tell)
• Not a hard rule: depends on the facts of each case
o When would NOT informing an accused of the possibility of a
competent verdict lead to an unfair trial?
o If they weren’t informed, that doesn’t mean the trial was unfair
164
Prejudice is absent where 'if the accused's attention was

drawn to the possibility of a competent verdict, their
defence would have been different'
• Prejudice is absent where the defence would not have different
• I.e., their defence strategy would've stayed the same, so the conviction
would likely not overturn
• Need to prove the accused struggled to defend themselves because
they were confronted with evidence they weren't prepared for
• Courts are very unwilling to overturn a verdict where the accused is
represented and uninformed
• Where the court only informs you of a competent verdict during
judgement of an unrepresented accused -> prejudicial
• Accused could plead guilty to a competent verdict

o Even where not explicitly charged
• Different from an automatic cure
o Automatic cure: something is amiss in the charge sheet, but during the
presentation of evidence, the evidence clarifies a missing element in
the charge sheet
• Splitting of charges -s 83
o Could be charged w/ any potential charges arising from the factual
matric
o Prosecutorial decision
• Specific rules
o Possibility of attempt
165
AMENDMENTS OF VERDICT
• Judgement has been delivered, but there is some kind of mistake…now

what?
• Point of departure: the judge is functus officio
o They have completed their duties and they have no more power
o They can’t add or amend or revoke judgement
• Limited exception: some kind of small mistake in judgement
o Grammatical error, offence name mistake, can be changed
o Cant rectify a misdirection or incorrect procedure (can’t include
evidence you’ve excluded etc)
166
• If the issue is bigger than a grammatical issue, then instead look at post-
conviction remedies
o Appeal and review
• Must be able to amend sentence / verdict in reasonable time
167
SU 19: SENTENCING 168
SU 19: SENTENCING
• The courts are vested with the power to impose a sentence from a wide range
of options and alternatives
• Sentencing is a very individualised exercise, and it’s extremely difficult to draw
a comparison between sentences
o it depends on the facts of each case
o It depends on how the crime was committed
• Sentencing plays a very important function
o Courts have the power to give a sentence aligned with what an
accused has done, taking into account the personal circumstances as
offender, but also the interest of the community
DISCRETION
• Sentencing discretion is limited by minimum and mandatory sentences

o according to certain circumstances -> legislation deemed it appropriate
to designate minimum/mandatory sentences to particularly serious
crimes
o only in exceptional circumstances will the courts impose a lesser
sentence for these above crimes
• Wide discretion on sentencing, but still guided by previous judgements
o Sentencing consistency
o Common law crimes -> court looks at previous judgements
o Statutory offences -> penalty provision -> discretion to judge how much
of prescribed sentence to impose (upper limit of sentence)
▪ A minimum sentence MUST be imposed unless certain
circumstances compel a court to deviate
• The factors determining length and severity of sentence: ZINN TRIAD
168
The crime
The offender
The interest of
society
VICTIM RECOGNITION
• Traditionally, if a court even bothered to consider the victim directly, their

consideration fell under the interest of society
• However, in the past 10 years, there has been a movement of recognising the
victim as a stand-alone interest or factor
S V MATYITI
• Victim-centred approach
• Sees more recognition of victim as a stand-alone interest
• Victims may make a victim impact statement
o this informs the court of what their experience was being a victim of this
specific crime
o However, it is not decisive
• An enlightened penal policy always accounts for victims
THEORIES OF PUNISHMENT
169
Retribution Deterrence Rehabilition Restorative

• Eye for an eye • S 12(1)(c) Const -> • Post 1994 is the age of • Ubuntu
• Offender harmed obligation on the state to rehabilitation • Focus is not to punish or
someone, so they should protect citizens from all • Function of the prison deter, but to restore the
be punished like they're forms of violence and by system is to rehabilitate relationship between the
the victim deterring crime it is and reintegrate them into offender and victim
• More favour restorative partially achieving that society as productive, non- • Cannot always be
justice goal crime committing citizens achieved, as the victim
• Achieved through • But we have high re- does not always want to
consistent punishment offender rates participate, nor is it always
appropriate in most crimes
ADVANTAGES OF DISCRETION
Independence Difference of fact General principle
• Somtimes a sentence is guided or • Discretion = can consider • Whatever sentencing approach of

prescribed by legislation individual circumstances / fact court = still bound by certain
• Judicial officer may only deviate • Exxample, killing someone out of principles
therefrom if there is substantial jealousy and killing someone in • Zinn triad + balancing aggravating
and compelling reasons to deviate self-defense and mitigating circumstances
• Some legislation indicates how
much a court is allowed to
imprison someone, or an upper
limit for imprisonment
• Up to the court, considering
relevant mitigating and
aggravating circumstances, ow
heavy the punishment is
• Most common law crimes does not
have legislation guiding the court
on what duration of imprisonment
to impose
• Usually the judicial officer is
independent to make choices re
sentencing within legislative
bounds
THE ACCUSED AND SENTENCING
170
• The courts must strike a judicious balance between the different elements to
ensure that 1 element is not unduly accentuated at expense of and to the
exclusion of others
o courts do have a tendency to over-focus on mitigating factors
o Think of S v SN
• Aggravating factors can outweigh mitigating factors
• Sentencing is usually a separate hearing, especially for more complex cases
where judgement is reserved
o Must bring evidence to provide a factual basis for these circumstances
o Same for state -> the state must provide a fact basis for aggravating
circumstances
• Public policy and public interest
o Can also be considered
o Think of GBV
o S v SN
▪ court does recognise that GBV is a problem, but still deviates
from minimum sentencing
• Factual basis
o Always there for mitigating / aggravating circumstances
MITIGATING FACTORS
171
Youth
•More lenient for younger people
•S v SN: 47 y/o uncle (who raped niece) was seen as ‘relatively youthful’
•Nkomo
•Majority emphasised the relative youth of the offender
•Minimum disagreed that the accused was of relative youth inrelation to his violent
offence
First Offense
•Has led a relatively crime-free life beforehand
Remorse
• Remorse is a powerful factor
• Must demonstrate genuine contrition
• True remorse has been described as a gnawing feeling
• Must recognise how your actions have caused harm to another
• The accused taking the stand and testifying and recognising their crimes and its effects, as well as its after-effects
• Think Matyiyi -> must indicate that they’ve had a change of hard
• S v SN
• accused did plead guilty after being reported to the police
• did admit to raping his niece and did allude in his guilty plea that there’s no evidence leading him to the crime
• alluded to they never would’ve successfully prosecuted him without his guilty plea and co-operation
Employed / Dependents
•If you’re employed, it shows stability of person and will likely continue your life
well-behaved
•If you’re a bread-winner and you’re sent to prison, then family will suffer
•If the court is on the cusp of deciding between imprisonment or a fine and you’re
employed, then it’s a good indication that court should rather impose a fine
Belief in Witchcraft / Religion

•Murder was committed associated w/ witchcraft
•Terblanche case
•If witchcraft is a motivating factor, then court will take it into account
•genuine belief, depth and sincerity of belief
Socio-economic Factors
•Stolen a bread out of hunger
•S v Jordaan – emphasised that many members join gangs due to economic
pressures and out of survival due to pervasive poverty and unemployment, but
can’t look away from violent crimes committed in this case
Others
•Battered Wife Syndrome
•S v Ferreira -> cycle of abuse and at some point the abused spouse then snaps
and kills their spouse -> how close to the last instance of abuse take place?
•Emotional stress
•Mental Illness
•Health
172
AGGRAVATING FACTORS
SERIOUSNESS OF THE CRIME
• Serious crime + committed under serious circumstances = heavier sentence

• Some crimes are very serious to begin with (murder, rape, organised crime)
• Even serious offences can be committed under more serious circumstances
and even attract a minimum sentence -> rape and murder of a child, for
example
• Vulnerable victims, like children or the elderly = aggravating circumstances
• S v SN
• Organised Crime – Jordaan
o Socioeconomic conditions that force people into a life of crime weighed
against the seriousness of organised crime
• S v Ntozini -> crimes of dishonesty
o Corruption or fraud
o Amount involved = aggravating circumstances
o Computer virus installed on municipality, amount stolen over R90
million
VULNERABLE VICTIMS
• S v SN
• Children, elderly, mental health issues
LACK OF REMORSE
• Offender appears in court as lacking remorse

• No acknowledgement of what they did being wrong
AFTER-EFFECTS ON VICTIM
• Physical or psychological
• S v SN
o clear indication that victim would need counselling and received a
therapy order from court at state expense
173
o advancement of victim rights, recognition of victim as a person in the

criminal justice system
o deviates from min sentence though...
o expert who testified on behalf of state: uncertain whether victim would
ever recover
o victim - behavioural issues displayed (aggression at school, blamed
herself for what happened, very angry at uncle)
• Courts usually don’t consider similar previous convictions older than 10 years
• S v Noordien
o Chewing gum case
o person was convicted of stealing chewing gum of over R180
o 18 months in prison
o review: court found that court a quo placed too much emphasise on
fact that person had previously been convicted of theft
▪ acknowledged importance of giving an appropriate sentence on
repeat offenders, but that doesnt mean a disappropriate
sentence
▪ replaced w/ 36 days imprisonment
• Du Plessis
o court on appeal said the court a quo over-emphasised the importance
of previous convictions
o previous convictions older than 10 years
o court a quo failed as some convictions were over 10 y/o
o unfortunate case involving someone convicted of sexually assaulting a
young boy and had previously been convicted of also doing the same
thing
o yes, we confirm the fact that courts usually don’t look at previous
convictions over 10 years, but we can’t close our eyes to the fact that
this person is a repeat offender of quite a serious crime
o length between previous conviction and the current conviction will
impact the weight (shorter sentence = heavier weight)
o court reduced: 15 years to 8-ish years
PREMIDITATION
174
• Some things happen in the heat of the moment, emotional stress, provocation
• Meticulous planning is seen as more morally repugnant
PREVALENCE OF CRIME
• Courts emphasise GBV and rape
MINIMUM SENTENCES
CRIMINAL LAW AMENDMENT ACT (‘CLAA’)
• Specific legislation
• Initially – mandatory minimum sentencing
• Courts must impose minimum sentencing, except for substantial and
compelling circumstances exist to deviate therefrom
• Only the HC and RC can impose a minimum sentence
o Likely that the sentence falls outside the scope of the court the person
was initially charged with
• Not applicable to someone under 18 at the time of commission of the crime
o S 28 of the constitution
• Centre for Child Law Case
o Use and possession of dagga by children -> still criminalised
o Children were sent to a juvenile centre -> seen as unconstitutional, as
children should be dealt with via alternative methods
o Better means to deal with children via diversion programs
• Must be mentioned in charge sheet and can be irregularity if its not mentioned
o Case-by-case if irregularity
EXAMPLES WHERE MINIMUM SENTENCING MAY BE IMPOSED
175
gang rape / multiple premeditated

Rape
Murder
people involved victim - law enforcement
execution of common officer or planning to give
purpose evidence in a schedule 1
perp knowingly has HIV offence
victim below 18 and died in commission of
above 60 robbery w/ aggravating
circumstances, rape or
mental or physical compeled rape
disability or other
vulnerable person killed to unlawfully
remove body part
life sentence
victim under 18
life sentence
DEVIATION FROM MINIMUM SENTENCES
• ‘substantial and compelling circumstances’ means ‘truly convincing reasons’

o Not marginal differences in personal circumstances and degrees of
involvement
o S v Mahlungu
• S v Malgas
o Warned that these shouldn’t be flimsy reasons
o S v SN: perpetrator’s age came into play and was remorseful and co-
operated in the investigation…are these sufficient reasons?
o standard judgement in applying and deviating
o Yes, pod is min sentences, and despite your feelings as a judge, you
MUST impose it?
o you may have personal feelings about this and it does curtail judicial
discretion to a degree, but you MUST impose it and only deviate where
substantial circumstances applies
o look at cumulative effect of all the mitigating factors and then determine
if you can deviate from the min sentence
o might be unpalatable for judges to deviate therefrom due to public
• S v Dodo
o challenged minimum sentence regime
176
o confirmed approach of Malgas

o step-by-step procedure confirmed
o it would only have been unconstitutional for court to impose a sentence
that is contrary to the BOR, spec s 12(1)(e) - sentence be proportional
to crime, and min sentence litigation gives us wiggle room to deviate if
sentence is disproportional to crime, but can’t be flimsy reasons
o diff between substantial and compelling circumstances and
disproportionate sentence (which is the constitutional standard)
o separation of powers -> leg imposing a prescribed sentence and
somewhat curtailing judicial branches authority to decide sentencing
SENTENCING CHILDREN
• Always been sentenced more leniently, whether common law or focus on

diversion
• Cant expect same level of maturity -> sentenced less heavily, as children are
prone to thoughtlessness
• At present: criminal law amendment act, read w/ centre for child law v MOJ
o Declared application of min sentence regime to minors unconstitutional
• Result: approach in S v B still relevant (how to approach deviation)
o B was a minor when crime was committed
o Member of a satanic group and went to parents house w/ intention to
kill people as he believed it would bring him religious fulfilment
o Went to neighbour's house and robbed elderly neighbour of car and
money and then killed her as well
o Court makes NB observations about min sentencing re children
o Emphasised the court was still heinous in nature, but looked @
circumstances of offender and his life
o Did however show remorse and emphasised other personal
circumstances: youthfulness = rehabilitation was quite possible, was
neglected as a child and abused substances at quite a young age,
attempted to take own life twice, also failed by parents, parents were
low-functioning individuals, child also failed by community and society
177
as a whole -> tempered against seriousness and heinousness of

offence, and public interest in punishment of severe offences
o Cumulative effect of mitigating factors allows us to deviate from the min
sentence
VICTIM IMPACT STATEMENTS
A sworn statement by the victim / someone authorised by the victim to make a
CPA statement on their behalf which reflects the physical, psychological, financial or
any other consequences of the offence for the victim
Prosecutor may, when adducing evidence or addressing the court on sentence,
s 70 consider the interests of a victim of the offence and the impact of the crime on the
victim and/or furnish the child justice court w/ a victim impact statement
If the contents aren't disputed, a victim impact statement is admissible as

evidence
Victim participation in the criminal justice system
Court to exercise its discretion in this regard
Aggravating circumstances
DIFFERENT SENTENCING OPTIONS
1. Imprisonment
• Removing the offender from society or to punish them within the
community
• Seriousness of crime, aggravating factors
178
• Juveniles are not readily imprisoned, nor are first offenders
179
Ordinary Imprisonment for a term determined by the court
• Common law crimes: 15 years HC, 3 years MC

• Statutory crimes: general jurisdiction subject to penalty clause
Imprisonment for life
• S 276 CPA, by HC
• Unknown period, subject to possible release or parole after 25 years
Declaration as dangerous criminal
• S 286A CPA: indetermined, by RC and HC

• 'a person represents a danger to the physical or mental well-being of other persons and
that community should be protected against them'
• Court considers board report on criminal, and other evidence, and decides on continued
incarceration or release
Declaration as a habitual criminal
• S 286 CPA: person habitually commits offence and community should be protected against
them
• Kept in prison for at least 7 years, then parole is considered, may not be detained for more
than 15 years
S 276(i) imprisonment
• Commissioner of Correctional Services is empowered to release the prisoner on

correctional supervision
• Awarded discretion: max term of 5 years is appropriate
• Narrow band of serious crime, where correctional supervision is not sufficient punishment
but impirosnment of more than 5 years is not needed
Reduction of Sentence
• Court is functus officio once a sentence has been granted

• Modification of sentence limited to admin action by dept of Correctional Services
• Authorised to release prisoners who have served various portions of sentence within
reasonable limits
2. Fine
• Less serious offences: offender pays an amount of money to the state
as punishment
• Wide discretion of court
• Statute doesn’t provide for fine = can’t be imposed
• Crime may not be that serious + offender must have some financial
means + whether crime was committed for financial gain
180
• Amount
• Discretion of court, depending on relevant statutory provisions
• Punishment depends on financial abilities
3. Correctional supervision
• Supervision of the offender w/ the view of correcting the wrongdoer and
wrongdoing
• Community-based: punishment executed in offender’s community
• House arrest, monitoring and community service
4. Juvenile offenders
• Young offenders shouldn’t be punished as harshly as adult offenders
• S 28 rights of children: detainment as a measure of last resort, for
shortest possible time
• Diversion from criminal process is central: not prosecuted in criminal
court, but subject to any number of conditions of diversions that
emphasise restorative justice
• Child will not have a criminal record
• Trial and sentencing takes place in a child justice court
• Sentencing has the following objectives:
• encouraging a child to understand the implications and accept
responsibility for harm
• finding a balance between interest of child and society and
seriousness of crime
• promoting reintegration of child into family and community and
ensuring the child receives the required guidance
• avoiding imprisonment
• No imprisonment for someone under 14, no more than 25 years, court
has to attest to seriousness of crime + protection of society + victim
impact
SUSPENDED AND POSTPONED SENTENCES
• Minimum sentences can never be suspended in full, but can suspend part of it
(technically)
181
• Suspend all or parts of sentences -> cumulatively you must serve 15 years
but you must serve 2 years
• Sentences can be considered together holistically
• Review/appeal court cannot see how much weight you have attached to each
crimes
• Suspending parts of sentence may feel inadequate to the public
CUMULATIVE EFFECT OF MULTIPLE SENTENCES
• Where you committed all sorts of offences
182
1. When a person is at any trial convicted of

two or more offences or when a
person under sentence or undergoing sentence
is convicted of another offence, the
court may sentence him to such several
punishments for such offences or, as the case
may be, to the punishment for such other
offence, as the court is competent to
impose.
2. Imprisonment - shall commence the one

after the expiration, setting aside or remission
of the other, in such order as the court may
direct, unless the court directs that such
sentences of imprisonment shall run
concurrently.
3. Correctional supervision - shall commence

the one after the expiration, setting aside or
remission of the other, in such order as the
court may direct, unless the court directs that
such punishments of correctional supervision
shall run concurrently: Provided that if such
punishments in the aggregate exceed a period
of three years, a period of not more than three
years from the date on which the first of the
said punishments has commenced shall be
served, unless the court, when imposing
sentence, otherwise directs.
COMPENSATION AND RESTITUTION
Compensation – S 300
• Victim’s rights
183
• Allows the criminal court to award a compensation judgement – have onus of

civil judgement
• Limited through damage / loss to property suffered through a crime
HC: unlimited
RG: R1 000
000
DC: R300
000
• Court can only do this if requested by injured party or when prosecutor
requests on behalf of the party
• Must be evidence of the injuries suffered (quotes, receipts)
Restitution – S 301
• A buyer of stolen property suffers loss: A steals a phone from B and sells it to
C
• Court can order restitution for C if they were unaware of offence (must’ve
been a bona fide buyer)
DANGEROUS CRIMINAL
• Anti-social disorders: psychopaths, anti-behavioural disorders

• Court gave date that offender must reappear in court where it would revaluate
the dangerous criminal sentence status (only RC or HC)
• It may be imposed if that person is going to be a danger (physical or mental)
to the well being of other persons or the community
184
• Prison: case management committee submits a report of them to the

correctional supervision and parole board: conduct of prisoner, their adaption,
training, mental state and possibility of relapse into crime
• Reappears in court: considers original sentence, the report, and evidence
adduced in hearing: continued incarceration or release (may be conditional)
• S v Bull
o Sentence is not unconstitutional: nothing in sections compelling court
to act in contravention of constitution
o Sentencing court ensures sentence is imposed in conformity w/ BoR
185
SU 20: REVIEW 186
SU 20: REVIEW
• In general, the right to review is held in s 35(3)(o) of the Constitution: due

process and fairness
• In our previous dispensation, there was much difficulty to get a judgement
reviewed
When is a review more appropriate than an appeal?
Review: procedural
irregularity
Appeal:
substantive matter
S v Rall: “[T]he judge must ensure that ‘justice is done’. It is equally important, I
think, that [they] should also ensure that justice is seen to be done. After all, that is a
fundamental principle of our law and public policy. [They] should therefore so
conduct the trial that [their] open mindedness, [their] impartiality and his fairness are
manifest to all those who are concerned in the trial and its outcome, especially the
accused…”
CATEGORIES OF REVIEW
ORDINARY REVIEWS: STATORY ORIGIN
Superior Courts Act S 22
1. Alleges that court has no jurisdiction

2. Improper interest, bias, malice or corruption of judicial officer
3. Gross irregularity of the proceedings
186
SU 20: REVIEW 187
4. Admission of inadmissible / incompetent, or rejection of admissible /

competent evidence
Criminal Procedure Act
1. Automatic
2. Extraordinary
3. Before sentencing’
4. Case set down for argument
HIGH COURT
• Common law inherent jurisdiction to review + s 173 of Constitution

• S v Khalema: confirms the inherent common law review powers of the HC
APPEAL V REVIEW
Appeal Review
Merits v Challenge sentence / verdict on Is someone aggrieved by a

Procedure substantive grounds: facts, procedural irregularity: looks at
merits, etc the validity of the proceedings
Record Can rely on past judgement Not bound by record. Can submit
an affidavit explaining the
grounds.
Facts Appeal focuses on merits / Delivered via an affidavit from the

substance court a quo.
Time Appeals are more bound by time Review must be within a

bounds reasonable amount of time
Jurisdiction Courts do not have inherent Supreme courts enjoy

power to appeals = only statutory constitutional review jurisdiction
power that guides appeals (SCA, CC)
AUTOMATIC REVIEW – S 302
• No legal representation of trial – kicks in if matter was heard in district court
187
SU 20: REVIEW 188
o Length of service: look at length of service of judicial officer and length

of sentence / amount of fine awarded
• Unreported
o Automatically go on review when judicial officer has less then 7 years
of experience, sentence exceeds 3 months or fine exceeds R 6 000
• 1st
o Matter came about in a DC and no legal representation = automatic
review
o Quality control and aims of justice
• 2nd
o DC: magistrate more than 7, imprisonment of 6 months or more, or fine
exceeding R 12 000
• S v Ndou 2006
o Consider the time factor w/ regard to automatic review
o Record must be transmitted to the relevant HC not later than one week
after judgement was delivered
EXTRAORDINARY
• S v Nkosi
o S 304 CPA
o Courts review don’t have general power to increase a sentence on
review
• Exception
o MC imposed an unlawful sentence
o Review courts alter conviction to a more serious crime
EBRAHIM V MINISTER OF JUSTICE
• S 174 CPA – discharge at the end of the state’s case

• May apply for discharge at the end of the state’s case where there is no prima
facie case = acquitted
• Regional magistrate refuses discharge
• No appeal, it is an interlocutory matter
188
SU 20: REVIEW 189
• Review: Only insofar as the magistrate has exercised his discretion in an

irregular way; irregularity in the process (not if the parties don’t agree with the
magistrate’s decision on the merits)
“The magistrate, in a short judgment, stated that he believed there was enough
evidence to justify a conviction if the state's evidence was to be believed. This
reflects his view and is in line with the relevant legal section governing the review of
proceedings in inferior courts. The section outlines specific grounds for review,
including the absence of jurisdiction, bias or corruption of the presiding officer,
irregularities in proceedings, and the admission or rejection of evidence.
The authors concur that appeals are appropriate when challenging the outcome of
proceedings, while reviews are suitable for contesting the method of the
proceedings. Giving a judgment not supported by the evidence is a matter for
appeal, while issuing a judgment without any evidence warrants a review.
The applicant's argument seems to center on the claim that the evidence presented
during the trial was insufficient to support the state's case. The magistrate disagreed,
finding that there was some evidence. Even if the magistrate's initial assessment is
incorrect, there was no procedural irregularity as required by the legal section. The
applicant's complaint relates to the trial's outcome, specifically the decision not to
discharge the applicant at the end of the state's case.”
S V NXUMALO
• Magistrates’ years of service for purposes of automatic review

• In casu:14 years service; resign; reappointed after 4 years break = previous
service/experience must be taken into account; in casu no need for automatic
review
“In this legal decision, Magistrate Magid J addresses a matter involving the
imposition of sentences by a magistrate in Newcastle. The magistrate in question
had been initially appointed in 1984, resigned in 1998 after 14 years of service, and
was reappointed in 2002. The central issue is whether this magistrate can be
considered to have "held the substantive rank of magistrate or higher for a period of
seven years," as required by the law.
189
SU 20: REVIEW 190
Magid J cites a prior case, S v Botha (4) SA 543 (T), which interpreted the law
literally and found that a magistrate with prior service and a subsequent temporary
appointment should be considered to have met the seven-year requirement. Magid J
supports this interpretation and recommends following the precedent.
The decision also references another case, S v Heskwa, in which a magistrate had
held the substantive rank of magistrate for a shorter period before resigning and
returning to service. Selikowitz J in that case found that departmental seniority alone
did not meet the seven-year requirement, as the magistrate had been out of touch
with legal practice.
Magid J agrees with this view and emphasizes the need for an automatic review
procedure, especially for magistrates who have been out of practice for a
considerable period. He suggests that the legislature should consider implementing
a probationary or review period for magistrates who have not held their position for
an extended time.
However, the matters at hand in this case do not warrant automatic review, and no
order is made by the court. VAN DER REYDEN J and JAPPIE J concur with Magid
J's decision.”
190
SU 21: Appeal 191
SU 21: APPEAL
CONSTITUTIONAL RIGHT
• Constitutional right to appeal decision or have it reviewed by a higher court

• Used to have an absolute right to appeal, but been amended
• General backlog in criminal justice system
NO APPEAL BEFORE CONVICTION
• Case must be exhausted and reach finality
LEAVE TO APPEAL
• Issues need to be fleshed out – need for case to reach finality

• Exceptional circumstances for appeal before conviction: unreasonable denial
for legal representation, or dismissal for permanent stay of prosecution (only
means to help accused – to appeal before conviction)
• Within 14 days of passing sentence/order following the conviction – may be
extended if good cause is shown
• Application for leave to appeal must be heard by trial magistrate (if not:
another mag can hear it, recorded must be provided)
• Test: reasonable prospect of success in another court (usually a higher court)
– suggests an objective decision based on the facts of law on which the
appeal would be considered
• Sound and rational reasons
• Realistic chance that higher court must arrive at different decision
• Arguable on appeal
• Hierarchical process
APPEAL AGAINST SENTENCE
• When exactly does a court on appeal interfere on a sentence imposed by a

lower court?
• Usually: court a quo didn’t exercise discretion judicially and reasonably and
results in a failure of justice
191
SU 21: Appeal 192
• Several tests have developed to evaluate whether to interfere w/ sentences

granted by a lower court -> is sentence so severe that a reasonable court
would not impose it?
• SCA: does the sentence induce a sense of shock? Is it startingly
inappropriate, w/ a large disparity with the sentence imposed and what
sentence the SCA would’ve imposed?
• How does on arrive at such a conclusion?
• Comparable sentences from similar sets of fact – sentencing varies so
much though…but look at where there is a body of case law on a
certain type of crime
• May also be increased – where appropriate w/ a fine, etc, or could add
additional punishment
• Unless where appeal is based solely on a question of law
• HC: can increase any sentence on appeal (inh jur / except where
question of law) even where appeal was on conviction only -> inform
accused if increase is considered
• Only increased: improper exercise of judicial powers, or court
misdirected itself
APPEALS ON FACT
• Only if trial court misdirected itself

• Trial court is in good place to determine issues of fact (appeal court only has
record, trial court saw demeanour and body language etc)
• Trial court better analyses presentations of fact – especially where finding is
based mostly on witness testimony
• Trial court misdirected itself, and evaluation is wrong (looking at evidence
evaluated as a whole)
• Duty of appeal court to rehear the case on the record together w/ evidentiary
material, revaluate everything, and then decided by self whether there’s a
reasonable doubt to the appellant’s guilt
• Bailey: AC must be convinced the TC was wrong in accepting the
evidence of the state witnesses -> will not interfere w/ finding of fact
otherwise
192
SU 21: Appeal 193
APPEAL ON LAW
• Whether the court on appeal could’ve made the same finding of law
• Legal principle application to established set of facts determining whether
crime has been committed -> question of law arises where the facts on which
TC based judgement could have legal consequences other than that which
TC found
• Exclusion of certain relevant legal evidence in establishing an offence
• Misinterpretation or incorrect application
193

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Stellenbosch University

STUDY UNIT 1: A BASIC INTRODUCTION TO CRIMINAL

WHAT IS THE LAW OF CRIMINAL PROCEDURE?

THE PURPOSES OF CRIMINAL PROCEDURE

SUBSTANTIAL V FORMAL LAW

Substantive Law Adjectival Law

Protection of interests & rights of

• Criminal procedure regulates

CRIMINAL JUSTICE SYSTEM

DOUBLE FUNCTIONALITY OF CPL: SHASHAPE CASE

She was not on the premises

She did not consent (S 22(a) of CPA)

There was no warrant (S 25(1)(a), or S 21(1))

No reasonable grounds to believe that a warrant would’ve been

THEREFORE: violation of her constitutional rights to dignity

HOW DID THE COURT DETERMINE THE AMOUNT PAYABLE?

• Court pointed to her mental + psychological health + the impact on her

• The court’s original judgement was not comprehensive

"Search and seizure may

TENSION BETWEEN CRIME CONTROL AND DUE PROCESS

Emphasises trial Fair trial rights may

• Democratic RSA has a mixture

S 105(1)(b)(iii) Plea and sentence agreement

Accused may receive a reduced sentence if given information

S 300 CPA Compensation order (mostly property theft)

S 179(5)(d)(ii) Decision to prosecute: victim is consulted

Service No absolute right

National Impact statement: victims of sexual offences

S 299A CPA + Serious crimes – (day) parole under correctional supervision

S 7 CPA Private Prosecution

S 144(3)(a)(ii) CPA Withholding of names

S 153(2) CPA Testifying in camera (anonymously)

S 158(3)(e) CPA Testifying via CCTV/ other technology

S 170A CPA Intermediary is used where the victim is under the

SORMAA Framework for the protection of sexual offence victims

Witness Protection Under threat of person/group

Prosecution Principles: safety/protection of witnesses

CONSTITUTIONAL CRIMINAL PROCEDURE

Read through this part of chapter 1 in the textbook.

S 7&8: Rights and Application of the

ARTICLE: POVERTY AS A GROUND OF INDIRECT DISCRIMINATION

The THRR (theoretical human resources requirement) formula that’s used to

LAW RELATING TO DISCRIMINATION

UNLISTED OR UNSPECIFIED PROHIBITED GROUNDS

Prima facie case proven

Respondent must prove

Discrimination did not

Court finds that

The nine factors:

• Conduct impairs/is likely to impair human dignity

• Whether the complainant suffers from patterns of disadvantage or belongs to

FACTS OF THE CASE

• SAPS engages in two phases of human resource allocation

PHASE 1: THEORETICAL ALLOCATION

+ informal housing + number of identified gangs + areas where

PHASE 2: ACTUAL ALLOCATION

▪ Actual allocation informed by available budget

EXPERT EVIDENCE: REDPATH

▪ The unfortunate cycles apparent in areas like

HOW THE COURT DEALT WITH THIS ISSUE

▪ Applicant relied on 2 grounds of discrimination: race + poverty

IMPORTANT CONCEPTS IN CRIMINAL EVIDENCE

PASSIVE DEFENCE RIGHT

▪ The right to remain silent + the right against self-incrimination