UNIVERSITY OF CAPE TOWN

DEPARTMENT OF PUBLIC LAW

CRIMINAL PROCEDURE PBL4802F

COURSE OUTLINE

2024

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A. GENERAL INFORMATION

1. Contact details

Course convenor

Associate Professor Jameelah Omar

Office 6.40

jameelah.omar@uct.ac.za

Please send an email should you have any queries.

Course administrator

Rene Francke

Office 5.32

Doris.mwambala@uct.ac.za

Teaching Assistants

Praise Adejimi Jordan Murray

praise.adejimi@uct.ac.za jordan.murray@uct.ac.za

Office 6.39

Please send an email should you have any queries. Walk-in consultation hours will be
advertised on the Public Law TA door.

2. Lectures

This course is a first semester course. There are 36 compulsory lectures scheduled.

There are three lecture slots per week scheduled for this course, namely 2nd, 3rd, and
4th periods on a Wednesday (9.00am – 11.45am), with breaks in between.

During 2024, all lectures and tutorials will be taught face-to-face. Lecture recordings
will NOT be available in this course.

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3. Tutorials

Three tutorials are scheduled for this course during the semester.

Students may only attend the slot that they signed up for. Attendance of the tutorials
is highly recommended. Tutorials are used to practice problem and other exam-type
questions, debate critical and contemporary criminal procedure topics, and clarify any
misunderstandings of the content.

4. Assessment

Assessment in this course is composed of the following elements:

4.1. Test

Weight: 20%

The test will take place in the week of 29 April – 3 May, date, time and venue to be
confirmed.

The test is compulsory. If a student is unable to write the test due to illness or other
circumstances, they may apply to the Deputy Dean for an exemption.

4.2. Assignment

Weight: 20%

Due date: 2 April 2024 on Vula assignments portal.

If a student fails to hand in an assignment by the due date, the penalty for late
submission described in the Final Year Schedule will apply. If a student is unable to
submit at all due to illness or other circumstances, they may apply to the Deputy Dean
for an exemption.

4.3. Final examination

Weight: 60%

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 B. THE COURSE

1. Content

(The general course description can be found in the Law Faculty Handbook)

Criminal Procedure is the course in which your theoretical knowledge of Criminal Law
and the knowledge you will be gaining in the Law of Evidence comes to life. The first
few weeks will focus on the theoretical framework of criminal procedure and the
powers of the police. We will then move on to the criminal trial, where we will follow
the process from arrest to appeal. This course is not restricted to memorising sections
of the Criminal Procedure Act (although you will have to do that from time to time).

2. Objectives

Whether or not you realise it, we are all experiencing criminal procedure in our daily
lives. This course will underpin that experience with a theoretical and statutory
framework to try and make sense of our criminal justice system and recognise its
problems. The course aims to provide a broad framework of the criminal justice system
and some of the key role-players (lawyers, police and presiding officers). By the end
of the course, students should be able to see the bigger picture as well as know,
understand and critique the law on a range of different topics.

Skills

This course focuses on developing the following skills:

- Research (required for assignment);

- Legal drafting (through tutorials and class exercises);

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- Problem solving (application-type problem questions);

- Reading (reading to understand the course materials and link it to the law and critical
discussions);

- Critical thinking (interpreting, analysing and critiquing the law)

- Oral communication (through class participation)

3. Prescribed reading material

3.1. Students are required to acquire an updated copy of the Criminal Procedure Act
51 of 1977. A version that you have downloaded online is fine, please just make
sure that it is an up-to-date version (best to download it from Juta, LexisNexis or
Sabinet). Students are permitted to bring a copy of the CPA to tests and exams,
provided that no notes are included (highlighter and flags – with no writing on
them - are acceptable).

The prescribed textbook is

3.2. Theophilopoulos, C (ed.). 2020. Criminal Procedure in South Africa. Cape Town,
Oxford University Press (Hereinafter referred to as textbook). The book is
available to purchase as a soft cover book or as an electronic version.

The Law Library has a subscription for an online version, but there are restrictions for
how many students can ‘loan’ it at a time, as well as restrictions on downloading it.
Certain portions will be uploaded onto Vula, but only the percentage that is allowed for
copyright reasons. Therefore, please make sure that you have access to a copy, and
don’t leave it to the last few days before an assignment is due or test is scheduled to
try to loan it from the library.

Other prescribed reading material must be located by students for themselves where
they are easy to access electronically, such as cases and journal articles. Material that
is not easily available will be uploaded onto Vula. Additional optional material can be
found in the library and on UCT’s electronic databases. If it is necessary to make
amendments to the reading list during the course of the year this will be
communicated.

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There are approximately 400 pages of prescribed reading in this course. That is
approximately 50% of the amount recommended for a half course at final year level.
There is therefore no excuse for not doing the prescribed reading.

4. Optional reading material

In some topics of the Outline, further optional reading material is suggested. The
following are some of the useful textbooks on criminal procedure, which may be used
as supplementary sources:

Joubert (ed) et al Criminal Procedure Handbook (12th ed; 2017) (hereafter Handbook)
– this book is sometimes the source of prescribed readings

LAWSA Criminal Procedure (12th ed), available on LexisNexis online platform

Du Toit et al Commentary on the Criminal Procedure Act (loose leaf) Juta

Kriegler Hiemstra: Suid-Afrikaanse Strafproses (5th ed; 1993) Lexis Nexis

Steytler Constitutional Criminal Procedure (1998) Butterworths

5. Lecture notes

The course outline provides the outline to lectures. The topics will be completed in
order in the course outline. Normally one topic will be completed each week, unless
otherwise communicated. Written notes will be provided where appropriate. Students
have the responsibility to read the prescribed materials in advance of the lecture
and prepare their own study notes. Lectures are not intended for students to attempt
to record a transcribed version of the lecture. In order to actively engage with the
course and deepen understanding, students should (1) read the prescribed material
in advance so that it is familiar; (2) listen and understand to what is said in lectures;
and (3) write down the salient points in your own words. Note-taking in this way
promotes memory recall and understanding of the material.

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6. Communication

Mutual respect is important to facilitate the learning project. Please ensure that all
correspondence with the lecturer, administrative officer, the teaching assistants, and
one another, is professional and respectful.

I expect students to address emails to me as “Dear Ass/Prof Omar”. Please no more

“hey Jameelah” emails.

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 COURSE READINGS

Each topic has a specific criminal procedure focus. The prescribed readings are
intended to provide the basic information about a topic or part of a topic and/or to set
the foundation for engaged discussion in class. You are expected to have read the
materials before class as lectures are not structured around teaching the content of
the materials but to engage with the topic critically. Please follow the topics
sequentially and have your course outline with you during lectures, whether printed or
electronically.

List of topics

TOPIC 1: Introduction to criminal procedure and models ........................................... 9

TOPIC 2: The courts, Legal representation and the NPA......................................... 10

TOPIC 3: Police powers ........................................................................................... 11

TOPIC 4: Bail ........................................................................................................... 12

TOPIC 5: Charges and indictments .......................................................................... 13

TOPIC 6: Bias and recusal: presiding officers and assessors .................................. 14

TOPIC 7: Arraignment and plea of an accused ........................................................ 15

TOPIC 8: The conduct of the trial ............................................................................. 16

TOPIC 9: Verdict and sentence ................................................................................ 17

TOPIC 10: Appeal and review .................................................................................. 18

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TOPIC 1: Introduction to criminal procedure and models of the
criminal process
This topic focuses on:

Providing an introduction to criminal procedure (including defining it)

Understanding and appreciating the difference between substantive and adjectival
law
Understanding and appreciating the double-functional nature of some procedural
rules
Comparing and contrasting Packer’s models of criminal procedure: crime control
and due process
Introducing and describing Roach’s models related to victims’ rights

Prescribed reading (26 pages)

Section 35 of the Constitution

Textbook pages 4 – 17

Handbook pages 8 - 13

Recommended reading

William J. Stuntz ‘The Uneasy Relationship between Criminal Procedure and

Criminal Justice’ The Yale Law Journal 107 (1997) 1 pages 12 – 22

Roach “Four Models of the Criminal Process’ 1999 (89) Journal of Criminal Law
and Criminology 671, pages 676 – 682; 699 – 713

Marshall S Huebner ‘Who Decides? Restructuring Criminal Justice for a

Democratic South Africa’ The Yale Law Journal 102 (1993) 4 pages 961- 966

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TOPIC 2: The courts, Legal representation and the NPA

This topic focuses on:

The structure of the criminal courts

Court jurisdiction

Understanding and appreciating some of the ethical issues relating to defending

and prosecuting criminal cases

Introducing the different role-players in criminal procedure, including, the NPA, the
courts and Legal Aid (SAPS is covered in topic 5)

Demonstrating the application of the right to legal representation and advice during
different stages of the criminal process

Prescribed reading (55 pages)

CPA section 73

Textbook pages 39 – 47; 73 – 77; 82 – 90; 179 - 185

S v Halgryn 2002 (2) SACR 211 (SCA)

S v Lusu 2005 (2) SACR 538 (E)

S v Mugera and Another 2022 (1) SACR 53 (LP)

Recommended reading

Democratic Alliance v President of the Republic of South Africa and

Others [2012] ZACC 24

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TOPIC 3: Police powers
This topic focuses on:

Investigating the rights of persons during interrogation and search and seizure by
the police as well as explore the inherent conflict or necessary balancing act of
these interests and rights with the need to control crime.

Critically examining the statutorily defined process of summons and a written notice
to appear without the need for an arrest.

Critically examining the rules regulating the process of arrest, including arrest with
or without warrants, the extent to which police officers can use force to effect arrest
and the effect of an arrest.

Prescribed reading (48 pages)

Sections 20 – 30; 36B – 37; 49 CPA

Textbook pages 139 – 150; 151 - 173

Ralekwa v Minister of Safety & Security 2004 (2) SA 342 (T) (headnote)

Govender v Minister of Safety & Security 2001 (2) SACR 197

(SCA) (headnote)

Ex Parte Minister of Safety & Security: In re S v Walters 2002 (2) SACR

105 (CC) (headnote)

Recommended reading

Chuks Okpaluba ‘The end of the search for a fifth jurisdictional fact on arrest
on reasonable suspicion: A review of contemporary developments’ 2017 South
African Journal of Criminal Justice 30(1) 1 – 22.

Stephen de la Harpe & Tharien van der Walt, The Balancing of Conflicting
Rights in the Application of Section 49 of the Criminal Procedure Act, 6
Potchefstroom ELEC. L.J. [i] (2003).

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TOPIC 4: Bail

This topic focuses on:

Determining the procedural and evidentiary rules surrounding bail

Exploring the balancing act the court has to conduct in determining the outcome of
a bail application

Pathways to bail (Police bail; Prosecutor’s bail; court bail)

Inquisitorial role of the court in bail hearings

Bail applications (Considerations on whether or not to grant an accused person bail

(s60 of the CPA)

Prescribed reading (44 pages)

Sections 12, 35(1)(d),(e),(f) and 35(3)(h) of the Constitution

Sections 58-72 of the CPA

Textbook chapter 14 pages 214 – 234

S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (2) SACR 51

(CC) (headnote) [full case recommended reading]

Mathebula v The State [2009] ZASCA 91 (headnote)

S v Van der Merwe 2023 (1) SACR 94 (ML)

Recommended reading

J Omar ‘Penalised for poverty: The unfair assessment of ‘flight risk’ in

bail hearings’ SA Crime Quarterly 57 (2016)

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TOPIC 5: Charges and indictments

This topic focuses on:

Engaging with the constitutional rights implicated

Exploring the issues that may arise with charges and indictments, including the
requirements for a charge (s85), objecting to a charge (s85) and amending a charge
(s86)

Drafting charge sheets

Duplication of convictions

Prescribed reading (38 pages)

Section 84, 85, 86, 87 and 88 of the CPA

Textbook pages 197 - 210

S v Grobler 1966 (1) SA 507 (A) (headnote)

S v Benjamin 1980 (1) SA 950 (A) (headnote)

S v Whitehead 2008 (1) SACR 431 (SCA)

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TOPIC 6: Bias and recusal: presiding officers and assessors

This topic focuses on:

The common law rules of bias and recusal

The application of the requirement of impartiality and fairness in judicial proceedings

as required by s35 of the Constitution and given content by the common law

Application of the law in the case of bias or reasonable suspicion of bias in judicial
proceedings

Prescribed reading (62 pages)

Handbook pages 262 - 264; 266 – 270 (selected pages)

Dube v The State (523/07) [2009] ZASCA 28

The President of the Republic of South Africa v South African Rugby

Football Union CCT 16/98 paras 35 – 49; 63 – 76; 104

Jacob Zuma’s application for recusal of the Chairperson of the

Commission.

Commission’s ruling on recusal page 23 - 32

Recommended reading

C Okpaluba and L Juma ‘The problems of proving actual or apparent

bias: An analysis of contemporary developments in South Africa’ 2011
PER/PELJ 14(7) 14 - 23

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TOPIC 7: Arraignment and plea of an accused

This topic focuses on:

Understanding the process of arraignment and plea of the accused

Listing and understanding the different kinds of pleas available to an accused

person, particularly pleas of guilty and not guilty

Drafting pleas of guilty and not guilty

Prescribed reading (25 pages)

Sections 112 and 115 of the CPA

Textbook pages 295 - 309

S v Khoza 1989 (3) SA 60 (T) (headnote)

S v McIntyre 1997 (2) SACR 333 (T)

Mudau v S (276/13) [2013] ZASCA 172 (28 November 2013)

Recommended reading

Steyn, E ‘Plea bargaining in South Africa: current concerns and future

prospects’ (2007) 2 SACJ 206

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TOPIC 8: The conduct of the trial

This topic focuses on:

The trial process from arraignment until closing arguments (opening statements,
examination-in-chief, cross-examination)
Differences between examination-in-chief and cross-examination
Section 174 applications

Prescribed reading (22 pages)

Section 150 and 174 of CPA

Textbook pages 336 - 347

S v Shuping 1983 (2) SA 119 (B)

S v Lubaxa 2001 (2) SACR 703 (SCA); 2001 (4) SA 1251 (SCA)

S v Mathebula 1997 (1) SACR 10 (T) (headnote)

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TOPIC 9: Verdict and sentence

This topic focuses on:

The right of an accused in relation to a verdict

Competent verdicts

The court’s discretion in sentencing and the impact of prescribed minimum

sentences

Types of sentences (custodial and non-custodial)

Prescribed reading (44 pages)

Section 106, sections 256 – 270 of the CPA

Section 51 Criminal Law Amendment Act 105 of 1997

Textbook pages 348 – 352; 356 - 372

S v Fielies and another 2006 (1) SACR 302 (C)

S v Zinn 1969 (2) SA 537 (A)

S v Malgas 2001 (1) SACR 469 (SCA)

S v Dodo 2001 (1) SACR 594 (CC) (headnote)

Recommended reading

Handbook pages 384 – 398

SS Terblanche ‘Sentencing in South Africa: Dominated by minimum

sentences’ 2020 South African Journal of Criminal Justice 33(1) 4 – 22.

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TOPIC 10: Appeal and review

This topic focuses on:

The differences between appeal and review

Different rules in the lower courts and superior courts

Different process for appeals and reviews for the state and the accused

Types of appeals and reviews

Prescribed reading (35 pages)

Textbook pages; 396 – 410; 411 - 426

S v Tshabalala 2002 (1) SACR 605 (W) (headnote)

Shinga v The State & Another: S v O’Connell 2007 (2) SACR 28 (CC)
(headnote)

Mshudulu v Regional Court Magistrate, Kimberley and Another 2023 (1)

SACR 108 (NCK)

Recommended reading

Minister of Justice v Ntuli 1997 (2) SACR 19 (CC)

Qhinga v The State [2011] ZACC 18

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