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CRIMINAL PROCEDURE A

TOPIC 1:
NATURE AND ORIGINS OF CRIMINAL PROCEDURE

What is criminal procedure?

 It is adjectival law, meaning that it is procedural and not subjective. It is how the
criminal law is applied.
 Based mainly in English law, but developed over time to suit local conditions.
 Sources include:
- The Constitution
- Common Law
- Criminal Procedure Act
- Various other statutes (e.g. Magistrates’ Court Act)
 Characteristics of the system:
- Accusatorial: confrontational and presiding officer is more of an umpire than a
participant.
- Adversarial
- State-driven: influenced by politics.

Criminal procedure involves the whole community

 Some of the parties involved in criminal procedure:
- The criminals/alleged criminals
- Victims/potential victims
- Witnesses
- Police and other law enforcement officials
- Judicial officers
- Officers of the court (prosecutors, defence lawyers, clerks etc)
- Taxpayers (as the cost of the criminal justice system is borne by them)

Three phases of Criminal Procedure:

1. Pre-trial
2. Trial
3. Post-trial (e.g. appeal or review)

Hierarchy of the Courts

 Constitutional Court
- Has jurisdiction over all Constitutional issues.
 Supreme Court of Appeal
- Deals with some Constitutional issues.
- Deals with appeals from High Court.
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 High Court
- These divisions are the Provincial Divisions as well as the local divisions.
- They can deal with trials of first instance or appeal.
 Lower Courts
- These are made up of the regional Courts and the Magistrates’ Courts.
- These govern the hundreds of magisterial districts of South Africa.
- Regional Courts have the power to impose more severe penalties than Magistrates’
courts, and they have territorial jurisdiction over a number of magisterial districts.

Jurisdiction of the Courts

 The power or competence of a court to deal with a matter, i.e. hear the case and make
an order.
 Power relates to 4 main types of issues:
- Area
- Type of offence
- Severity of sentence
- Type of procedure
 The prosecuting authority has the discretion of which court is to hear a dispute.

MAGISTRATE’S COURT
The Magistrate’s Court is limited in all four ways. Section 89(1) of the MCA gives a list of
offences the Magistrate’s Court may hear.

 Area:
- The entire country is divided into magisterial districts; each presided over by a
magistrate.
- Section 90 gives jurisdiction to cover their districts and extensions.
- The size of the district depends of whether it is rural or urban.
- E.g. Grahamstown is in the Albany district.
 Type of Offence:
- These include all offences except treason, murder and rape.
 Type of Sentence:
- Section 92 lays down the sentences they may ordinarily impose.
- A fine not exceeding R60 000 and/or imprisonment not exceeding three years.
- This is determined from the time by notice in the Government Gazette by the
Minister of Justice.
- Special provisions can increase this sentence jurisdiction. E.g. the Drugs and Drug
Trafficking Act 140 of 1992.
 Types of Procedure:
- May only hear trials of first instance, therefore, no appeals or reviews.
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REGIONAL COURTS
Regional courts are limited by all four ways, but have a wider scope than the Magistrate’s
Courts. Given jurisdiction over their regions under section 90 of the MCA. Regions are
made up of a number of magisterial districts.

 Area:
- Limited to their regions.
 Type of Offence:
- Section 89(2) says they may try any type of case except treason.
 Type of Sentence:
- Section 92(1)(b) of the MCA says they may give a sentence of up to 15 years
imprisonment and/or a fine of up to R300 000.
- Maximum fine determined from time to time by notice in the Government
Gazette by Minister of Justice.
- When the sentence jurisdiction of a court is increased by statute, that increase
does not govern cases which have already commenced:
 Veldman v DPP: V was brought to trial for murder before the regional
court. When the trial started, the regional court maximum sentencing
jurisdiction was 10 years, during the trial the maximum sentence
increased to 15 years. When V was sentenced, he got more than 10
years. He contested that is was unfair and the issue went to the CC.
 The right to fair trial includes more than the rights identified in s35(3) to
cover the notions of basic fairness and justice.
 Type of Procedure:
- Regional courts cannot hear appeals, but may be a court of first instance and
hear reviews.

HIGH COURT
The jurisdiction of the HC is determined by statute and cannot extend beyond what is
conferred on it by statute. The HC derives its statutory authority to adjudicate over offences
committed within its territory from the Supreme Court Act 59 of 1959. The HC is only
limited in terms of area.

 Area:
- Their power is confined to their divisions (made up of clusters of magisterial
districts).
 Types of Offences:
- The HC may try any type of offence and there is no limit to the punishment they
may impose, provided it is permitted by law and does not exceed maximum laid
down by a particular statutory offence.
 Types of Sentence:
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- Some other statutes giver certain maximum punishments they may be imposed
for certain offences.
- More than one type of court may have jurisdiction to try any particular case. For
example, a shoplifting case from GHT could be tried in the MC for the district of
Albany, the RC for the Regional Division of the EC, or the EC Division of the HC. It
would be up to the prosecuting authorities to choose which of those three courts
should try the case.
 Types of Procedure:
- HC’s In addition to the jurisdiction to try cases themselves, have appeal and
review jurisdiction over the lower courts that fall within their areas of
jurisdiction.

SUPREME COURT OF APPEAL

This court sits in Bloemfontein, and is only limited in terms of its procedure.

 Area:
- Has jurisdiction over the entire country, so there is only one of it.
 Type of Offence:
- May hear any offence before it. If it hears Constitutional matters the decision
must be referred to the CC.
 Type of Sentence:
- There is no limit to its sentencing powers, other than the limits prescribed by a
particular statute in terms of certain crimes.
 Type of Procedure:
- It does not try cases at first instance.
- Only hears appeals coming from different divisions of the HC.

CONSTITUTIONAL COURT
 Area:
- The CC has jurisdiction over the whole country.
 Type of Offence:
- Only deals with Constitutional matters.
 Type of Sentence:
- May impose any sentence.
 Type of Procedure:
- Access by way of appeal or referral by the HC or SCA, therefore does not hear
cases at first instance.
- Only occasionally direct access.

TERRITORIAL JURISDICTION
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Lower Courts (NB)

The areas of jurisdiction of the lower courts are set out in s90 of the MCA.

 S90 (1) gives them jurisdiction to cover their districts (MC’s) and divisions (Regional
Courts) but it is extended in s90(2) as follows:
 S90 (2) extends the territorial jurisdiction to crimes:
a) Committed within 4km beyond a district/division boundary – because sometimes
it is confusing as to the division of the districts.
b) Committed on a vehicle undertaking a journey which goes through, or within
4km of the boundary of any district/region. E.g. a Greyhound trip from GHT to
CT, you get assaulted on the bus, the trial can be heard anywhere along the
journey.
c) Committed on a vessel travelling on a river in SA: similar extension to journey
under (b).
d) Committed on a vessel travelling within SA territorial waters may be tried in any
district/division touching on those territorial waters. (e.g. From CT to Durban).
e) Begun or completed within any district/division, even if parts/elements of the
offence occur outside that area. (E.g. driver negligently rums over a pedestrian
in GHT, but the victim dies in PE, the case may be heard either in GHT (where
offence began) or PE (where it ended).
 S90 (3): where there is uncertainty which of several districts/regions has jurisdiction,
each of them has jurisdiction.
 S90 (4): where any act/omission/event of an offence takes place in a district/division,
that district/division has jurisdiction, even of other acts/omissions/events forming part
of that offence took place in other districts/divisions.
 S90 (5): in the case of theft, jurisdiction is extended to any area where the accused has
the stolen property, or is found to be in possession of it.
- This is because (i) it is in accordance with s90(2)(b); and (ii) it is a continuing
offence.
 S90 (6): the same as above applied for charges of kidnapping, child stealing or
abduction.
 S90 (7): provisions of s90 do not oust special provisions in other legislation which may
extend area jurisdiction for special purposes.
 S90 (8): Director of Public Prosecutions may move case to other area within its territory
which gives jurisdiction to that area.

Extension of Jurisdiction with respect to the HC

In the HC trials there are no provisions which extend jurisdiction.
S v Be Beer
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 The SCA held that there is no corresponding statutory extension of the territorial
jurisdiction of the HC. Such an extension would manifestly conflict with s19(3) of the
Supreme Court Act which prohibits the section from being construed in a way that
deprives any Provincial Division from lawfully exercising jurisdiction conferred to it by
statute.
 It follows that Provincial Divisions of the HC may not assume territorial jurisdiction over
an offence committed outside its territorial limits even though such offence is covered
by the 4km rule and as such falls within the jurisdiction of a magistrate’s court within the
provincial division.
 They do however, have appellate and review jurisdiction over district and regional
courts within its geographical area even in those cases where an offence was committed
beyond its territorial limits, but has been dealt with by a MC within its territory on the
basis of the 4km rule.

Failure to object to jurisdiction timeously

S110: if accused fails to object to territorial jurisdiction before plea they lose the right to
complain about lack of jurisdiction i.t.o. s110 of the CPA. This provision does not apply to
other meaning of jurisdiction, only area.

This provision does not give our courts jurisdiction to try cases from other countries, barring
special legislation to the contrary, just because an accused fails to challenge jurisdiction
before plea.

Section 110 – Accused brought before court which has no jurisdiction

1) Where an accused does not plead that the court has no jurisdiction and it at any
stage –
a) After the accused has pleaded a plea of guilty; or
b) Where the accused has pleaded any other plea and the court has determined
such plea against the accused.

Appears that the court in question does not have jurisdiction, the court shall for the
purposes of this Act be deemed to have jurisdiction in respect of the offence in
question.

2) Where an accused pleads that the court in question has no jurisdiction and the plea
is upheld, the court shall adjourn the case to the court having jurisdiction.

Power of the NDPP to centralise cases

 In terms of s22(3) of the National Prosecuting Authority Act, read with s111 of the CPA,
the NDPP may in certain circumstances move a case from one area of jurisdiction to
another.
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 S111 only makes sense when read with s22(3) of the NPAA.

Irregular Capture of the Accused

The SCA has held that SA courts do not have jurisdiction of South African agents capture the
accused irregularly beyond SA borders, and then bring the accused into SA. This constitutes
a violation of international law.

S v Ebrahim
- Appellant, Ebrahim, was a member of the military wing of the ANC.
- He fled South Africa and was in exile in Swaziland.
- Persons acting as agents of the South African State captured him and took him
back to SA where he was handed to the police.
- In the court a quo, appellant argued courts did not have jurisdiction to hear the
case.
- He had been arrested outside of the country and illegally brought into SA and
thus in contravention of international law.
- The court a quo held, in fact did have requisite jurisdiction.
- The SCA however held that the court a quo did not in fact have jurisdiction and
the conviction and sentence were set aside.

S v Mahala
- The appellants were convicted on charges of murder and sentenced to death.
- They raised a special lea that Court lacked jurisdiction after breaching
international law.
- The appellants claimed they had been unlawfully arrested in the Republic of
Ciskei and/or removed from Ciskei without their consent and brought to SA.
- Held in court a quo that they had not been unlawfully arrested and convicted of
murder and sentenced to death.
- The first appellant was initially arrested in Ciskei but released from arrest by
them and handed to the SAP. He then voluntarily agreed to travel with the SAP
back to East London.
- The second appellant was seized (intercepted) by members of the SAP while still
in Ciskei and requested to accompany them to SA, where he was arrested.
- Held: the appellants were not unlawfully arrested and the court thus had the
jurisdiction even though there was no proper extradition management.
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TOPIC 2:
METHODS OF GETTING ACCUSED TO COURT

Four methods
1) Arrest – This is the most invasive.
2) Summons – this is a document ordering appearance.
3) Notice under s56 of the CPA.
4) Indictment

Arrest
This is governed by s39 of the CPA.

 S39(1): may arrest with or without a warrant. The manner of arrest may include
submission, touching or the use of force.
 S39(2): the accused must be informed of the reason for arrest, if arrest with a warrant,
given copy of the warrant on demand.
 S39(3): the effect of arrest is that is placed in lawful custody.
 If the arrest was not affected lawfully, a subsequent escape or resistance is not
an offence. The arrestor may be charged with an assault – R v Reabow.
 Therefore, subsequent detention would be unlawful, with the possibility of civil
damages – Minister of Law and Order, Kwandebele v Mathebe:
o Accused arrested in SA by members of KwaNdebele police force. The
KwaNdebele police force do not in normal course have powers of arrest
in SA. This was in terms of Regulation 3(1) of emergency regulations
made in terms of s3 of Public Safety Act 3 of 1953, which does not
provide KwaNdebele police with such power.
o Held – further detention of a detainee arrested unlawfully in SA by
members of KwaNdebele police but detained in KwaNdebele also illegal.
 However, an unlawful arrest does not render the ensuing trial automatically
invalid. This was the principle in National Coalition Gay and Lesbian Equality and
Another v Minister of Justice and Others.
 S40: Arrest without a warrant
 Peace officers: the police may arrest without a warrant in terms of the
circumstances set out in s40 such as:
a) Any person committing/attempting to commit an offence in the presence of
the peace officer.
b) Any person whom the peace officer reasonably suspects of having committed
a Schedule 1 offence (found at the back of the CPA).
 “Reasonable Suspicion”
Duncan v Minister of Law and Order
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- Duncan, a minor, was suspected of stabbing someone at a party. The

police investigated and found the information pointed to Duncan.
However, Duncan was discovered to be innocent and he sued for
damages.
- Held – although Duncan was innocent, the police were acting on a
reasonable suspicion and were therefore acting lawfully.
- The “reasonable suspicion” which s40(1)(b) of the CPA requires of a
peace officer making an arrest without a warrant does not imply that
there must be a prima facie case against the suspect. Nor does such a
peace officer, when effecting the arrest, necessarily have to have the
intention of bringing the arrestee before court to be prosecuted.
- A reasonable suspicion, coupled with the intention to make further
inquiries before deciding whether the case merits prosecution, will
suffice. The strong possibility that an arrested person will be released
before his appearance in court is not abnormal. It arises from the
difference between the test laid down for a lawful arrest without a
warrant under s40(1)(b) of the CPA, and the practical requirement of a
prima facie case for a prosecution.

Ralekwa v Minister of Safety and Security

- The police got information from a bank about a fraud and immediately
arrested without doing a proper check.
- A peace officer arrested a man in terms of s40(1)(b), with the presence of
reasonable suspicion to the commission of a schedule 1 offence.
- In testimony it was discovered that the peace officer acted on the
allegations of the assistant bank manager and did not ever objectively
create his own reasonable suspicion.
- The court found that this was not sufficient to meet the requirements of
reasonable suspicion and therefore the man was entitled to damages.

c) Any person who has escaped or attempts to escape from lawful custody.

 S41(1): A peace officer may call upon a person whom he has the power to arrest, or
whom he reasonably suspects of having committed/attempted to commit any offence,
or whom the peace officer is of the opinion may be able to give evidence of offence/ the
suspected offence, to furnish their full name and address.
 S42(2): failure to comply with the above request will constitute an offence.
 S42: Private Arrest: private person may arrest without a warrant in the following
circumstances:
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a) Any person committing/attempting to commit a schedule 1 offence in the presence

of that person, or whom such person reasonably suspects of having committed a
schedule 1 offence.
b) Any person he reasonably believes to have committee an offence and is escaping
from lawful custody and being freshly pursued by a person why they reasonably
believe has the authority to arrest that person.
c) Any person found committing an offence on property/lawfully occupied by such
private person.
 S43: Arrest with a warrant:
 S43(1): A magistrate or justice of the peace (E.g. a police officer above a certain rank),
may issue a warrant of arrest, upon written application by the DPP, prosecutor or
commissioned police officer (E.g a rank of captain and upwards).
 The application must:
- S43(1)(a) – set out the alleged offence.
- S43(1)(b) – make allegations vesting jurisdiction with the court.
- S43(1)(c) – make an oath that there is reasonable suspicion that the
person in question committed the offence.
 Execution of warrants:
- S44 – warrants are executed by peace officers.
- S45 – telegraphic or written communication from a magistrate/justice of
the peace/ peace officer stating that a warrant has been issued is
sufficient to authorise a peace officer the arrest in question.
 General:
- S47 – any male inhabitants of RSA between 16 and 60 are obliged to
assist with an arrest if called upon to do so by a police official. Failure to
do so attracts criminal liability and constitutes an offence.
- S48 – anyone who may lawfully arrest a person and who
knows/reasonably suspects such person to be on premises may, after
audibly demanding access and giving reasons, if necessary break open,
enter, search and arrest the suspect.
 Arrest when lesser means would suffice. The AD previously held that even if less
invasive means of securing attendance would suffice, arrest, was lawful provided all
requirements were present.
 Tsose v Minister of Justice
- If the object of an arrest, though professedly to bring an accused person
before the court, is really not such, but is to frighten or harass and so induce
him to act in a way desired by the arrestor, without his appearing in court,
the arrest is unlawful. But if the object is to bring the arrested person before
the court in order that he may be prosecuted to conviction, the arrest in not
rendered illegal because the arrestors motive is to frighten or harass the
arrested person into desisting from his illegal conduct.
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- Held – it is desirable in cases where there is no urgency and the person to be

charged has affixed and known address that a summons should be issued.
But there is not rule of law which requires this method to be used whenever
it would be equally effective as arrest.
- In other words, reasonableness of arrest was not a requirement.
 TPD has not held that reasonableness is a requirement for a lawful arrest:
 Louw v Minister of Safety and Security
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TOPIC 3:
PROCUDURE AFTER ARREST

After a person has been arrested they must be “brought to a police station as soon as
possible and cannot be detained for a period exceeding 48 hours.”

The procedure to be followed after arrest is dealt with in s50 of the CPA.

S50 can be regarded as consisting of 2 periods post arrest:

1) Post arrest but prior to arrival at the police station.
2) The period after an arrestee has been bought to the police station.

Step 1: Arrestee to be taken to the police station

 S50(1)(a) – any person arrested with or without a warrant for allegedly committing an
offence, of for any other reason shall as soon as possible be bought to a police station.
- Unless in the case of a warrant and the warrant specifies some other place,
the arrestee must be taken there.
 S50(1)(b) – a person who is in detention as contemplated in paragraph (a) shall as soon
as reasonably possible be informed of right to initiate bail proceedings.
 Law enforcement officers other than the police who have power to arrest in terms of
s40 have some powers of detention during this period (however, none whatsoever in
step 2 – police only have the power).
 This stage is the procedure is pivotal for ensuring that arrestees are bought into the
custody of the police as soon as possible so that he may be detained and charged.
 This stage of the process is governed by (and tested in light of) the words “as soon as
possible.”

Step 2: To be brought before a court within 48 hours

 S50(1)(c) – unless the accused has already been released because –
- no charges are to be brought against him; or
- bail has already been granted,
Then the Act does allow for their detention, but arrestee to be brought before lower
court (for his first appearance) as soon as reasonably possible, but not later than 48 hours
after arrest.
 This provision is extremely significant as it applies equally to all persons regardless of the
manner in which they were arrested and it upholds/embodies a guaranteed rights of an
arrestee provided for under the Constitution particularly:
- S35(1)(d): “Be brought before a court as soon as possible” – which has been
subject to statutory implementation setting the maximum period of
detainment at 48hours (but as soon as reasonably possible is still a factor of
consideration).
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Extension of the 48 hour period

 The period of 48 hours may be extended in the following circumstances:
 If it expires after normal court hours (9.00 – 16.00), or on a day which is not an
ordinary court day (the weekend and public holidays). The period expires at
16.00 on the next court day thereafter.
 If arrestee’s physical condition does not permit court appearance, then the court
may, on application of the prosecutor, supported by medical evidence, authorise
detention of arrestee at specified places (e.g. hospital) for purposes of
recuperation).
 If the arrestee is in transit from area outside court’s jurisdiction, period expires at
16.00 on day following day on which arrestee is brought within area of court’s
jurisdiction.
 Note: “day on which court normally sits” does not cover position of periodical court
which may only sit, say, once a week:
 Sias v Minister of Law and Order
- Sias was detained for a period of 9 days.
- The issue before the court in this instance was whether is was permissible to
detain a person for longer than 48 hours before bringing him to court
because the 48hour period had expired on a day which was not a court day
for the periodical court.
- Court held that s50 was to stop people from being held in detention for long
periods of time without proper authority.
- Held- although the periodical court was not in session that day, the
magistrate’s court that had jurisdiction over the periodical court also had
concurrent jurisdiction over the accused, thus the case could have been
heard in the MC as well. This was in terms of the MCA s27 read with s91 –
MC’s have jurisdiction to hear cases that are to be heard in lower courts of its
jurisdiction.
- Held- upon expiration for the 48 hour period the detained person was being
held unlawfully. Therefore “normal court days” is not applicable to periodical
courts as they do not sit daily. Such issues need to be heard within the main
court in the district.

S35(1)(d) of the Constitution

 S35(1)(d) of the Constitution provides that arrested persons to be brought before court
within 48 hours or, if 48 hours expires outside ordinary court hours, before the end of
the following court day.
 The question is whether s50 of the CPA conflicts with the Constitutional provision.
 The argument is that s35 is merely subject to statutory implementation setting the
maximum period of detainment at 48 hours and that it is a justified limitation especially
when one realistically considers possible reality restraints or hindrances. The provision
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in fact gives effect to the right to be brought before a court as soon as reasonably
possible.

Civil Remedy of s50 not Complied with

 Normally the detention of a person would be permissible only for as long as it would be
necessary to bring them to trial:
- This is acknowledged in our Constitution and by s50 with its 48 hour custody
limit which is coupled with an order of further detention if necessary for trial
purposes.
 S50 and other sections of the CPA enable courts to guard against unnecessary and
wrongful attacks upon an individual’s freedom if the authorities fail to bring an arrestee
before court within the period allowed.
 Moreover, the common law also provides a remedy by means of which the unlawful
detention of someone may be speedily ended. This remedy is the interdictum de libero
homine exhibendo.
- interdictum de libero homine exhibendo – compels person detaining person
to present this free person before the court so the court may release them.
- English equivalent is habeas corpus (“you may have the body”) – this term
sometimes referred to in our law.
- The arrestee or some other interest person may bring the application.
Ganyile v Minister of Justice
An accused was arrested in Lesotho and unduly held for a long period. An application was
made, but judgment was reserved for a month and then denied.

Case went to appeal and was overturned. This remedy is simply used to secure the release
of the detained person.

Examples
1. Bob is arrested in Grahamstown on Thursday at 10:00. By when does he have to be
brought before the lower court?
Answer: MONDAY BEFORE 16:00
2. Pete is arrested at 18:00 on Tuesday immediately before Easter weekend (Easter
weekend – holidays on Friday and Monday). By when must Pete be brought before
the court?
Answer: Next week Tuesday before 16:00.
3. Lungi is arrested in Zimbabwe at 15:00 on Tuesday. The police bring him by car for
his first appearance in Grahamstown. The car arrives within the Albany Magistrate
district at 14:00 on Thursday. By when does Lungi have to be brought before the
court
Answer: 16:00 on Friday.
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TOPIC 4:
MEANS OF SECURING ATTENDANCE OTHER THAN ARREST

There are other means of securing an accused’s attendance at trial, including:

 Summons
 Written notice
 Admission of guilt
 Indictment

SUMMONS
This procedure is governed by s54 of the CPA (MC):
 S54(1): where the prosecution intends prosecuting an accused in respect of any offence
and the accused is not in custody in respect of that offence and no warrant has been or
is to be issued for the arrest of the accused for that offence, the prosecutor may secure
the attendance of the accused for a summary trial in a lower court having jurisdiction by
drawing up the relevant charge and handing such charge, together with the information
relating to the name and, where known and where applicable, the residential address
and occupation or status of the accused, to the clerk of the court who shall:
a) Issue a summons containing the charge and the information handed to him by the
prosecutor, and specifying the place, date and time for the appearance of the
accused in court on such charge; and
b) Deliver such summons, together with so many copies as there are accused to be
summoned, to a person empowered to serve a summons in criminal proceedings.
 S54(2)(a): except where otherwise expressly provided by any law, the summons shall be
served by a person referred to in ss (1)(b) by delivering it to the person named therein
or, if he cannot be found, by delivering it at his residence or place of employment or
business to a person apparently over the age of 16 and apparently residing or employed
there.
b) a return by the person who served the summons that the service thereof has been
effected in terms of Para (a) may, upon failure of the person concerned to attend the
relevant proceedings be handed in at such proceedings and shall be prima facie proof of
such service.
 S54(3): a summons under this section shall be served on the accused so that he is in
possession thereof at least 14 days (Sundays and public holidays are excluded) before
the date appointed for the trial.
 A summons is only possible when the accused is not in custody, and no warrant or arrest
has been issued or is to be issued against the accused.
 Prosecutor may issue summons: not obliged to go that route.
 Only for the lower court – MC and RC – the heading of the section is misleading.
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What has to be in a summons?

Primarily the prosecutor is responsible for the preparation of summons.
 First prepares a charge sheet in accordance with s84.
 Charge must contain info about:
- Alleged crime (accused to ascertain what the State’s case involves).
- Personal particulars of the accused (no capacity or quality must be attributed
to accused that is prejudicial).
 Summons therefore contains:
- Names, address, etc of accused.
- Place, date, time of appearance.
- Details of charge.

S54: How the summons is to be served

The issuing of summons is the task of the clerk of the court.
 Issue of the summons means in effect the preparation of the document.
 Prepared with view of handing it to the messenger of the court who in turn serves it.
 Service is affected by an authorised official by serving copy on the accused.
 Summons is served by the sheriff, or by police of any messenger of the court appointed
in terms of s44 of the MCA.
- Method of service governed by s54(2)(a).
 Alternative forms of service may be resorted to only when the person named in the
summons cannot be found. The serving official, before adopting alternative forms, must
display diligence in trying to effect personal service. Service official not required to
furnish reasons why the person named in the summons could not be found, neither is
her required to explain why the alternative method used qualifies.
 Return of service: prima facie proof that summons has been served – ss2(b). this is a
from filled out at the back of the v\serving officials copy of the summons, with the
signature of the accused.

S54(3): Adequate notice to be given

 At least 14 working days’ notice of trial date is to be given.
 If lesser notice given, accused is not obliged to attend and no warrant of arrest may be
issued.
 Accused may nevertheless attend voluntarily, in which case notice is waived.
- Singh v Blomerus NO
- Held – where summons has been so served and the accused had appeared,
had pleaded and had not objected that he had not been duly served; he was
precluded thereafter from objecting to such short notice.

S55: Consequences of non-attendance

 ~ 17 ~

 Procedure to be followed where the accused is absent is of a sui generis nature and
consists of 2 phases:
1) Court investigates whether summons was properly served, reliance on proof of
return. If there is no doubt of proper service, warrant of arrest issued.
2) Comes into play once the accused appears in court under the warrant for his arrest.
The court summarily enquires into the reasons for the accused’s failure to attend.
 The court informs the accused of the case against him and asked whether he has
received the summons.
 If accused admits receipt of the summons and offers no excuse for his failure to attend,
the court will convict him and oppose an appropriate sentence.
 Should he deny service, may tender rebuttal and so discharge the onus on himself.
 If the court is satisfied no good excuse exists, accused is convicted and sentenced.

The nature of proceedings relating to enquiry into reasons for absence

The procedure is summary.
S55(2) places onus on the accused

S55(2): the court may, if satisfied from the return of service referred to in Para (b) of s54(2)
that the summons was served on the accused in terms of Para (a) of that section and that
the accused has failed to appear at the place and on the date and at the time specified in
the summons, or if satisfied that the accused has failed to remain in attendance at the
proceedings in question, issue for his arrest and, when he is brought before the court, in a
summary manner enquire into his failure so to appear or so to remain in attendance and
unless the accused satisfies the court that his failure was not due to any fault on his part,
convict him of the offence referred to ss(1) and sentence him to a fine not exceeding R300
or to imprisonment for a period not exceeding 3months: provided that where a warrant is
issued for the arrest of an accused who has failed to appear in answer to summons, the
person executing the warrant –
a) May, where it appears to him that the accused received the summons in question
and that the accused will appear in court in accordance with a warning under s72;
b) Shall, where it appears to him that the accused did not receive the summons in
question or that the accused has not paid an admission of guilt fine ito s57 or that
there are grounds on which it appears that the failure of the accused to appear on
the summons was not due to any fault on the part of the accused, for which purpose
he may require the accused to furnish an affidavit of affirmation,
Release the accused in warning under s72 iro the offence of failing to appear in answer to
the summons, whereupon the provisions of that section shall mutatis mutandis apply with
reference to the said offence.

S v Singo: Constitutional Court ruled that such onus is unconstitutional

 ~ 18 ~

Facts: concerns the validity of s72(4) of the CPA. It provides for summary proceedings
when an accused person failed to appear in court at the time and on the date fixed by a
warning so to appear. Unless the accused can satisfy the court as to his innocence, fine or
imprisonment may be imposed. Three questions were examined:
1) Does the summary nature of procedure limit the right to a fair trial, and thus limit
right to be presumed innocent and right to remain silent?
2) If there is a limitation, is it justifiable in term of s36 of the Constitution.
3) If not, what relief is appropriate?
Court held: requirement that the accused must satisfy the court limits the rights mentioned
above, the accused is forced to speak for failure to do so will result in conviction. In addition
may be convicted despite the existence of a reasonable doubt, thus limiting the
presumption of innocence.

Held that such onus was unconstitutional and so “read in” the words “reasonable
possibility” to take away the revers onus and remove the problem. CC ruled that the
summary procedure itself was not unconstitutional.

Special Provisions relating to warrant issued under s55

 S55(2) contains special provisions for police officials to release on warning persons who
have been arrested on warrant issued under s55.
 Courts also have special power to fix admission of guilt for the charge of contravening
s55(2A):
a) If the court issues a warrant of arrest ito ss(3) iro a summons which is endorsed in
accordance with s57(1)(a) –
(i) An endorsement to take the same effect shall be made on the warrant in
question;
(ii) The court may make further endorsement on the warrant to the effect that the
accused may admit his guilt in respect of the failure to appear in answer to the
summons or to remain in attendance at the criminal proceedings, and that he
may upon arrest pay to a clerk of the court or at a police station a fine stipulated
on the warrant in respect of such failure, which fine shall not exceed the amount
to be imposed ito ss(2), without appearing in court.
b) The fine paid ito Para (a) at the police station or to the clerk of the MC other than
the MC which issued the warrant of arrest shall, as soon as is expedient, together
with the warrant of arrest in question, be forwarded to the clerk of the court which
issued the warrant, and such clerk shall thereafter, as soon as is expedient, enter the
essential particulars of such admission of guilt in the criminal record book for
admission of guilt, whereupon the accused concerned shall be deemed to have been
convicted by the court in respect of the offence in question.
 In certain circumstances issue of non-attendance can be dealt with by court of different
jurisdiction.
 ~ 19 ~

WRITTEN NOTICE (s56)

S56 written notice as method of securing attendance of accused in magistrate’s court.

1) If an accused is alleged to have committed an offence and a peace officer on

reasonable grounds believes that a MC, on convicting such accused of that offence,
will not impose a fine exceeding the amount determined by the Minister from time
to time by notice in the Gazette, such a peace officer may, whether or not the
accused is in custody, hand to the accused a written notice which shall:
a) Specify the name, residential address and the occupation or status of the
accused;
b) Call upon the accused to appear at a place and ion a date at a time specified in
the written notice to answer to a charge of having committed the offence in
question;
c) Contain an endorsement ito s75 that the accused may admit his guilt iro the
offence in question and that he may pay a stipulated fine in respect thereof
without appearing in court; and
d) Contain a certificate under the hand of the peace officer that he has handed the
original of such written notice to the accused and that he has explained to the
accused the import thereof.
2) If the accused is in custody, the effect of a written notice handed to hum under ss(1)
shall be that he be released forthwith from custody.
3) The peace officer shall forthwith forward a duplicate of the written notice to the
clerk of the court which has jurisdiction.
4) The mere production to the court of the duplicate original referred to in ss(3) shall
be prima facie proof of the issue of the original thereof to the accused and that such
original was handed to the accused.
5) The provisions of s55 shall mutatis mutandis apply with reference to a written notice
handed to an accused under ss(1).

 Written notice procedure intended for minor offences.

 Used where peace officer is of the opinion that the magistrate will not impose a fine in
excess of the amount determined by the Minister.
 Max amount determined: R2500 ito s56(1).
 Written notices are issued and served by the peace officer without the intervention of
the prosecutor or clerk of the court.
 Contains:
- Personal particulars of the accused
- Offence allegedly committed
- Date, time, place at which offender must appear in court
 The notice always offers the accused the option of paying a set admission of guilt fine in
order to avoid having to appear in court.
 ~ 20 ~

 It always incorporates a certificate by the peace officer in which he inter alia states that
he handed the original notice to the accused.
 A duplicate sent to clerk of the court with jurisdiction, this constitutes prima facie proof
of service.
 Should accused fail to pay the fine or appear in court, the procedure in s55 will be put
into operation and he can be convicted of the offence in s55(1).
 Similar in principle to s54 summons.
 Differences:
- Can only be issued by peace officer (not clerk of court at request of
prosecutor).
- Must contain provision for payment of admission of guilt.

ADMISSION OF GUILT (s57)

Purpose:
 Avoid unnecessary court appearance on a trivial charge of an accused who is
prepared to admit guilt by paying an admission of guilt fine in respect of the relevant
charge.
 Creation of speedy and simple procedure.
Immediate practical effect:
 Accused excused from court appearance upon completion of formalities prescribed
by s57(6).
 Deemed to be convicted and sentenced by the court in respect of the relevant
charge.
Note:
 The prosecutor must respect the individual’s right not to be harassed by a
prosecution which has no reasonable prospects of success. The fact that the
prosecutor doubts the strength of the State’s case is no good ground for fixing an AG
in summons in the hope that the accused might pay the admission of guilt fine and
thereby relieve the state of the burden of proving its case.
- It is important because many accused persons pay an AG in order to rid of the
worry but are however not in fact guilty.
- Improper for prosecution to secure successful prosecution through this
manner as payment of AG fine does for criminal record purposes amount to a
previous conviction.

S57(1)(a): prosecutor can fix admission of guilt when issuing summons under s54.
(b): peace officer must fix admission of guilt when issuing notice under s56, admission
of guilt: amount and date by which payable to be specified. Payable at MC or police station
within jurisdiction, or in certain circumstances at local authority. NB: not payable directly to
peace officer.
 ~ 21 ~

S57(4): prosecutor may reduce amount payable on good cause shown.

S57(5): magistrate may make determinations of amount of admission of guilt for various
offences: if s/he has done so, AG to be in accordance therewith. If magistrate has not made
such a determination, prosecutor or police official of at least the rank of inspector can
determine AG in individual case.
S57(5)(b): AG may not exceed max set by Minister. Currently R5000.

Admission of guilt procedures

 S57(6): once clerk of the court has entered the particulars in the record book after
payment, accused deemed guilty and sentenced, unless magistrate later sets aside
under s57(7).
 S57(7): administrative procedures relating to examination of documents by magistrate
and possible interference/setting aside: the magistrate looks at documentation, and sets
aside if amount of fine inappropriate or not in accordance with determination.
 S57(A): in certain circumstances prosecutor may fix admission of guilt where accused in
custody awaiting trial.

Compounded fine
S341 provides for compounded fine (eg traffic ticket)
 Essential difference between admission of guilt and compounded fine:
- In case of compounded fine being paid, payer is not deemed convicted and
sentenced.

INDICTMENT
 This procedure only applies to trial/sentence in HC.
 S144 sets out various procedural requirements.
 S144(2):
- Charge(s)
- Name, address etc of accused
 S144(3): the indictment is to contain:
- summary of substantial facts
- name and addresses of State Witnesses (can be withheld to prevent
tampering and intimidation)
 s144(4) indictment to be served on accused at least 10 working days before trial, but
accused can waive this period.
 Return of service similar to summons.
 ~ 22 ~

TOPIC 5:
BAIL

Purpose of bail
 To minimise the impact on accused’s freedom when he has not yet been convicted of a
crime.
 It therefore ensures that an accused enjoys his right to freedom, while at the same time
ensuring that justice will be served in that he will still stand trial even though he has not
remained in prison until the time of trial (also ties in with the right to be presumed
innocent).
 Additionally, releasing accused persons out on bail also relieves the pressures on prisons
ito overcrowding.

Chapter 9 of the CPA

 S v Dlamini: describes bail as a “complex and interlocking mechanism.”
 The issue was whether the provisions of the CPA relating to bail were constitutional.
The court held that chapter 9 created a complex and interlocking mechanism that was
clearly designed to govern the whole procedure whereby an arrested person maybe
conditionally released from custody.
 It was further held that the grant of bail was unmistakably a judicial function and the
Legislature viewed bail in a serious light.
 It held that although societal interests may demand that persons suspected of having
committed crimes forfeit their personal freedom pending the determination of their
guilty, such deprivation is subject to judicial supervision and control.
 The court also pointed out that the objective of bail proceedings and that of the trial are
completely different. That is the task of the trial court. The court hearing the bail
application is concerned with the question of possible guilt only to the extent that it may
bear on where the interests of justice lie in regard to bail.

Inherent power to grant bail

 The earlier view was that the HC did not have an inherent power to release an accused
on bail if there was no statute granting them that power.
S v Kaplan
- After having been convicted and sentenced the applicant unsuccessfully
applied for leave to appeal which was also refused.
- He now applied inter alia for an order for bail, or alternatively the extension
of present bail.
- It was held that the court did not possess inherent jurisdiction to allow bail in
a case not covered by legislation.
- Application was therefore refused.
 ~ 23 ~

 The more recent view held by courts is that they do have an inherent Common Law
power to release an accused on bail even if there is no statutory provision permitting
such release.
S v Hattingh
- An application was made for bail pending an application for leave to appeal
against dismissal of an appeal from a regional court.
- It was held that although the SCA has no statutory power to grant bail to an
accused who has unsuccessfully appealed from a sentence in a lower court
and who wished to petition the Chief Justice for leave to appeal to the
Appellate Division, the Court does have the power to grant bail as an incident
of its common law power to control its own judgments.
S v Malcolm
- Application for bail pending an appeal against an order detaining an accused
as a state patient ito s77(6) of the CPA.
- Held that an accused person detained ito s77(6), and who appeals that order,
may apply for and receive bail pending the outcome of the appeal.
- This is implied by s77(8) which provides that an appeal may be made in the
same manner and subject to the same conditions as an appeal against a
conviction by the court for an offence.
- Even if there was no such implication, the HC has an inherent, original power
to grant bail to an accused person who appeals against an order ito s77(6).

Nature of Bail
 Bail is essentially a contract between the accused and the State ito which the accused is
released from custody on payment of an amount/furnishing of a guarantee.
 The accused is to appear at date and place appointed for trial or to which proceedings
are adjourned.
 Released until verdict stage, unless at time of giving verdict the court extends bail to the
sentencing stage, taking into account the fact that the accused has been convicted of a
crime as well as taking into consideration a possible sentence which may be imposed.
 Accused must comply with conditions of bail.
 Section 58: the effect of bail granted ito of the succeeding provisions is that an accused
who is in custody shall be released from custody upon payment of, or the furnishing of a
guarantee to pay, the sum of money determined for his bail, and that he shall appear at
the place and on the date and at the time appointed for his trial or to which the
proceedings relating to the offence in respect of which the accused is released on bail
are adjourned, and that the release shall, unless sooner terminated under the said
provisions, endure until a verdict is given by a court in respect of the charge to which the
offence in question relates, or, where sentence is not imposed forthwith after verdict
and the court in question extends bail, until sentence is imposed.
 ~ 24 ~

Provided that where a court convicts an accused of an offence contemplated in Schedule

5 or 6, the court shall, in considering the question whether the accused’s bail should be
extended, apply the provisions of section 60(11)(a) or (b), as the case may be, and the
court shall take into account:
a) The act that the accused has been convicted of the offence; and
b) The likely sentence which the court might impose.

Some General Bail Principles

 Bail applications are always a matter of urgency as the freedom of the accused should
not be infringed for an unreasonably long period of time.
 The granting or refusal of bail is not a form of anticipatory punishment; it is non-penal
on nature and takes several factors into account.
 S v Acheson:
Acheson was an Irish citizen charged with the murder of a prominent member of the
governing party of Namibia. The State opposed the granting of bail on grounds that the
accused might not stand trial, regard being had to the fact that he had no real roots in
Namibia or any African state; there was no extradition treaty with Ireland; Namibian
borders are extensive and difficult to police. It was held that the following had to be
taken into account:
1) Was it more likely that the accused would stand trial or was it more likely that he
would abscond and forfeit bail? Considered issues such as:
a) How deep his ties were to Namibia.
b) What his assets were there.
c) What means he had to flee.
d) Whether he could afford to forfeit the bail money.
e) What travel documents he had to leave the country.
f) Whether extradition arrangements existed if he fled to another country.
g) How serious the offence which he was charged with was.
h) How w\strong the case against him was.
i) How severe the punishment is likely to be.
j) How stringent the conditions of his bail would be and how difficult it would be to
police his movements.
2) Was there a reasonable likelihood that if he were released that he would tamper
with the witnesses or interfere with the relevant evidence?
3) How prejudicial it might be for the accused to be kept in custody by being denied
bail.
a) Duration for which he has already been incarcerated.
b) Duration for which he would be held before the completion of trial.
c) Cause of any delay in completion of his trial and whether he had any role to play
in such delay.
 ~ 25 ~

d) Extent to which he needed to keep working in order to meet his financial

obligations.
e) Extent to which he might be prejudiced in engaging legal assistance for his
defence and in effect, preparing his defence if he was in custody.
f) Health of the accused.

Court concluded that bail should be granted subject to stringent conditions designed to
minimise the danger that the accused might abscond or otherwise prejudice the interest of
justice.

Accused was released on bail of R4000, had to report to police and had limitations on:
a) His freedom to leave his home address outside of working and reporting hours,
b) His freedom of movement between his home address, his work address and the
police station.

 In a bail application, the rules of evidence are relaxed.

 The court should ensure that they ignore improper pressure for or against bail.
 S v Minister of Justice
In an application for bail, the applicant went on a continuous hunger fast and stated that
he was prepared to comply with any condition of bail which the Court might attach to
his release. He stated that he would resume eating if bail was granted to him. It was
held that if the courts have to surrender to this kind of pressure, then the very
foundations of justice would be subverted in a manner which might do irreversible
damage to the image of justice and to the values upon which any civilised system of law
must be based.

Bail can be fixed by 3 authorities

1) Bail fixed by Police before first appearance in court

 S59: a police officer of rank of sergeant or higher can fix bail before first appearance if
the offence for which accused is in custody is of a less serious nature (ie is not a part II or
part III of the Schedule 2 offences - s59(1)(a).
 The police official must complete and hand a receipt to the accused reflecting the money
deposited as bail, the offence in respect of which the bail was granted and the place,
date and time of trial – s59(1)(b).
 The police official must also lodge a copy of the receipt with the clerk of the court with
jurisdiction – s59(1)(c).

2) Bail fixed by the DPP before first appearance in court

 S59A: DPP or prosecutor authorised by DPP may authorise the release of a person on
bail before their first court appearance if accused in custody for a Schedule 7 offence (ie
 ~ 26 ~

one slightly more serious that the ones which the police may fix bail for – culpable
homicide, assault GBH, robbery, theft and fraud where amount not exceeding R20000,
possession of drugs).
 The accused may be subject to conditions imposed by the DPP or prosecutor.
 The bail is regarded in the same light as bail fixed by a court and is therefore treated in
that manner.

3) Bail fixed by court at or after first appearance

 General principle: accused entitled to bail at any stage prior to conviction if the court is
satisfied that the interests of justice so permit (s60(1)(a)).
 Bail lapses on conviction unless the court extends it (s58).
 If the prosecutor or the accused have not raised the issue of bail, the court has a duty to
bring it up (s60(1)(c)).

General powers of courts at bail hearings

 S60(2)(a): the court may postpone any proceedings as contemplated in s50(6).
 S60(2)(b): may, in respect of matters that are not in dispute between the accused and
the prosecutor, acquire in an informal manner the information that is need for its
decision or order regarding bail.
 S60(2)(c): may, in respect of matters that are in dispute between the accused and the
prosecutor, require of the prosecutor of the accused, that evidence be adduced.
 S60(2)(d): shall, where the prosecutor does not oppose bail in respect of matters
relating to Schedule 5 and 6, require of the prosecutor to place on record the reasons
for not opposing the bail application. (Schedule 5 offences- attempted murder, rape,
indecent assault of a minor. Schedule 6 – premeditated murder, rape and indecent
assault with the infliction of GBH)
 S60(3): shall order further evidence or information to be placed before the court if
necessary to reach a decision.

When the interests of justice to not permit release on bail

1) S60(4)(a) read with s60(5)
 S60(4)(a) – where there is the likelihood that the accused, if released on bail, will
endanger the safety of the public or any particular person or will commit a Schedule 1
offence.
 S60(5) – take into account:
a) The degree of violence towards others implicit in the charge against the accused,
b) Any threat of violence which eh accused may have made to any person,
c) Any resentment the accused is alleged to harbour against any person,
d) Any indisposition to violence on the part of the accused, as is evident from pst
conduct,
 ~ 27 ~

e) Any disposition of the accused to commit offences referred to in Schedule 1, as is

evident from past conduct,
f) The prevalence of a particular type of offence,
g) Any evident that the accused previously committed an offence referred to in
Schedule 1 while released on bail,
h) Any other factor which in the opinion of the court, should be taken into account.

 S v Baker; S v Doyle
- Likelihood that accused will endanger the public safety is a common law
consideration in granting bail.
 S v Kyriacou
- Accused being tried in HC on 102 counts of theft involving an amount of R4.5million.
- State applied for cancellation of the accused’s bail of R100000.
- Evidence was led to show that the accused was planning to flee the country whilst
undergoing medical treatment.
- There was also evidence of further offence of theft of goods valued at R300000
found at appellant’s business premises.
- It was held that there was some substance to the perception that the goods found
were part of the work of organised crime and the fact that they found their way to
the accused’s business premises was not coincidental.
- A prima facie case had been made out that the accused had indulged in further
criminal conduct since being granted bail.
- Court exercised discretion in favour of the state and cancelled the accused’s bail.

2. S60(4)(b) read with s60(6)

 S60(4)(b): where there is a likelihood that the accused, if he or she is released on bail,
will attempt to evade his/her trial.
 S60(6): will take into account –
a) Emotional, family, community or occupational ties of accused to place of trial,
b) Assets held by the accused and where held,
c) Means, travel documents held by accused, which may enable flight from country,
d) Extend, if any to which accused could afford to forfeit bail money,
e) Ease of extradition in event of flight across the border,
f) Nature and gravity of charge,
g) Strength of state case,
h) Nature and gravity of punishment in event of conviction,
i) Binding effect and enforceability of possible bail conditions and ease with which
conditions could be breached.
j) Any other factor (common law ground).

 S v Vermaas
 ~ 28 ~

- Applicant was standing trial in the SCA on charges of so-called round tripping by the
illegal use of the financial rand and applied for bail.
- It was held that after considering the interest of justice and the relevant provisions
of s60 including s60(6), the court held that the applicant had not discharged the onus
of showing that he would stand trial until the conclusion thereof (ie. There was a risk
that he would evade).
- Application was dismissed.
 S v Hudson
- When accused applies for bail and confirms on oath that he has no intention of
absconding, due weight must be given to his statement on oath.
- But the court should also consider the surrounding circumstances, such as the likely
heavy sentence in the event of conviction and the foreign nationality of the accused.
 S v Lulane and Others
- Several accused were awaiting trial for murder and attempted murder.
- Issue was whether they would defeat the ends of justice if released on bail.
- They were in custody and awaiting trial for about 18 months while the state built its
case.
- In some of the cases, it was unable to clearly ascertain whether or not the interests
of justice would be damaged if they were granted bail.
- It was held that if bail were granted, there was a substantial likelihood that they
would flee.
- The application was refused.

3. s60(4)(c) read with s60(7)

 S60(4)(c): where there is the likelihood that the accused, if he or she were released on
bail, would attempt to influence or intimidate witnesses or to conceal or destroy
evidence.
 S60(7): take into account:
a) Whether accused is familiar with the identity of the witnesses and the evidence they
can give,
b) Whether witnesses have already made statements and have agreed to testify,
c) Whether police investigation of case completed,
d) relationship of accused with witnesses and extent of possible influence/intimidation,
e) how effective possible bail conditions prohibiting communication with witnesses
would be,
f) whether accused has access to evidentiary material to be presented at trial,
g) ease with which evidentiary material could be concealed/destroyed,
h) Any other factor (common law ground).

 S v Hlongwa
 ~ 29 ~

- Accused has onus of proving that if bail is granted the interests of justice will not be
prejudiced by absconding or tampering with state witnesses.
- If there is a possibility that this will happen, bail will be denied.
- Court may rely on investigating officer’s opinion.
- Evidence of previous convictions is also acceptable.

4. S60(4)(d) read with s60(8)

 S60(4)(d): where there is the likelihood that the accused, if s/he were released on bail,
will undermine or jeopardies the objectives of the proper functioning of the criminal
justice system, including the bail system.
 S60(8): will take into account:
a) Whether accused deliberately supplied false information at time of arrest or during
bail proceedings,
b) Whether accused in custody on another charge, or on parole,
c) Previous failure to comply with bail conditions, or any indication that accused will
not comply,
d) Any other factor.

5. s60(4)(e) read with s60(8A)

 S60(4)(e): where in exceptional circumstances there is the likelihood that the release of
the accused will disturb the public order or undermine the public peace or security.
 S60(8A): take into account:
a) Whether nature/circumstances of the offence are likely to induce a sense of
shock/outrage in the community concerned,
b) Whether shock/outrage might lead to public disorder if accused released,
c) Whether safety of accused might be jeopardised by release,
d) Whether sense of peace/security by public would be undermined/jeopardised by
release,
e) Whether release will undermine/jeopardise public confidence in criminal justice
system,
f) Any other factor.

 S v Mahommed
- One of the grounds for refusing bail is contained in s60(4)(e) which provides that
refusal shall be in the interests of justice “where in exceptional circumstances there
is a likelihood that the release of the accused will disturb the public order or
undermine the public peace or security.”
- Where there is an exceptional circumstance it is necessary to find out whether the
requisite likelihood exists.
- Even if one of the elements mentioned in s60(4)(e) exists, there may be the
existence of the likelihood.
 ~ 30 ~

 S v Bennet
- Appellant appeared in the MC on a warrant of arrest issued.
- An interdict had been granted against the appellant and according to his ex-wife he
had grossly violated the terms of the interdict.
- Appellant and complainant had been married 3 times and had a tempestuous
relationship.
- The complainant had previously laid charges against him and the Magistrate held
that there was no smoke without fire, but these allegations were said to be false
which the magistrate failed to consider.
- There was also no evidence that he would disturb the public order to undermine the
public peace or security.
- His appeal against the refusal to grant bail was therefore upheld and he was granted
bail of R100.

6. S60(9)
 In considering the question is ss(4) the d\court shall decide the matter by weighing the
interests of justice against the right of the accused to his/her personal freedom and in
particular the prejudice s/he is likely to suffer if s/he were to be detained in custody,
taking into account, when applicable, the following factors:
a) Period already in custody since arrest,
b) Probable period of detention until disposal of case if no release,
c) Reason for delay, and whether fault on accused’s part,
d) Financial loss accused may suffer on account of detention,
e) Any impediment to defence which custody may cause,
f) Accused’s health,
g) Any other factor.

 S v Acheson
- Acheson was an Irish citizen charged with the murder of a prominent member of the
governing party of Namibia.
- The state opposed the granting of bail on grounds that the accused might not stand
trial, regard being had to the fact that he had no real roots in Namibia or any African
state, there was no extradition treaty with Ireland; Namibian borders are extensive
and difficult to police.
- Court concluded that bail should be granted subject to stringent conditions designed
to minimise the danger that the accused might abscond or otherwise prejudice the
interests of justice.
- Accused was released on bail of R4000. Had to report to police and had limitations
on his freedom to leave his home address outside of working and reporting hours;
and his freedom of movement between his home address, his work address and the
police station.
 ~ 31 ~

When there is onus on accused during bail application

 S60(11)(a): where an accused is charged with an offence referred to in schedule 6, the
court call order that the accused be detained in custody until s/he is dealt with in
accordance with the law, unless the accused, having been given a reasonable
opportunity to do so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his/her release.
 S60(11)(b): where an accused is charged with an offence referred to on schedule 5, but
not in schedule 6, the court shall order that the accused be detained in custody and
dealt with in accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces evidence which satisfies the court that the
interest of justice permit his/her release.
 Note that it must be in relation to a scheduled offence.
 S v Kock
- Appellant was charged with the indecent assault on boys under the age of 16.
- At bail proceedings, state relied on s60(11)(b) to contend that the appellant be
denied bail unless he could satisfy the court that interests of justice permitted his
release.
- No charge sheet had been drawn up and none of the complainants had testified.
- Evidence only disclosed allegations of ‘grooming’ – ie. There was no physical act yet,
but they were being prepared for more adventurous sexual acts.
- There was no evidence that consent was lacking.
- It was held that indecent assault was in essence an assault of an indecent nature.
The acts of the appellant did not fall into the category where they were so bad that
even if there was consent they would still be an offence.
- There was no bodily harm involved and the evidence did not suggest the unlawful
application of force or threat to inflict such force.
- The accused had to receive the benefit of the doubt because the state’s case was so
weak.
- In these circumstances, the interests of justice and the personal circumstances of the
appellant (he would not try and interfere with witnesses, he had a medical condition,
he would not try and evade trial) leant strongly in his favour.
- He was therefore granted bail.

Proof that the offence is a Scheduled offence

There MUST be proof that it is a scheduled offence.
 S60(11A)(a): if the attorney general intends charging any person with an offence
referred to in schedule 5 or 6, the attorney general may, irrespective of what charge is
noted on the charge sheet at any time before such person pleads to the charge, issue a
written confirmation to the effect that s/he intends to charge the accused with an
offence referred to in schedule 5 or 6.
 ~ 32 ~

 (b): the written confirmation shall be handed in at the court in question by the
prosecutor as soon as possible after the issuing thereof and forms part of the record of
that court.
 (c): whenever the question arises in a bail application or during bail proceedings
whether any person is charged or is to be charged with an offence referred to in
schedule 5 or 6, the written confirmation shall, upon its production at the application or
proceedings be prima facie proof of the charge to be brought against the person.

Duty to disclose information regarding previous convictions

 S60(11B)(a): in bail proceedings the accused, or his/her legal advisor is compelled to
inform the court whether:
i) The accused had been previously convicted of any offence, and
ii) There are any charges pending against him/her and whether he/she has been
released on bail in respect of those charges.
 (b): where the legal advisor submits the info on behalf of the accused, the accused will
have to declare on oath whether or not he confirms that info.
 (c): the record of proceedings, excluding the info, shall form part of the record of the
trial following bail proceedings: provided that if the accused elects to testify during the
course of bail proceedings, the court must inform him that anything he says may be
used against him in trial and becomes admissible evidence in subsequent proceedings.
 (d): accused who wilfully –
i) Fails or refuses to comply with provisions of (a), or
ii) Furnishes the court with false info required by (a).
- shall be guilty of an offence and liable on conviction to a fine or
imprisonment for a period not exceeding 2 years.

Accused not ordinarily entitled to police docket, etc, for purposes of bail application
 S60(14): notwithstanding anything to the contrary contained in any law, no accused
shall have access to any info, record or document relating to the offence in question,
which is contained in or forms part of, a police docket, including any info, record or
document which is held by any police official charged with any investigation in question,
unless the prosecutor directs otherwise.
 Provided that this subsection shall not be construed as denying an accused access to any
info etc, to which he/she may be entitled for purposes of his/her trial. (ie. Only applies
to bail proceedings).

Constitutionality of s60

S v DLAMINI ; S v DLADLA AND OTHERS; S v JOUBERT; S v SCHIETEKAT

In the respective cases before the Court the constitutionality of certain provisions of s 60 of the
 ~ 33 ~

Criminal Procedure Act 51 of 1977 (the Act) was challenged. Those provisions were tested against s
35(1)(f) of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution).
Section 35(1)(f), in its context, makes three things plain. The first is that the Constitution expressly
acknowledges and sanctions that people may be arrested for allegedly having committed offences
and may for that reason be detained in custody. The Constitution itself places a limitation on the
liberty interest protected by s 12 of the Constitution. The second is that, notwithstanding lawful
arrest, the person concerned has a right, but a circumscribed one, to be released from custody
subject to reasonable conditions. The third basic proposition is that the criterion for release is
whether the interests of justice permit it. Section 35(1)(f) postulates a judicial evaluation of different
factors that make up the criterion of the interests of justice, and the basic objective traditionally
ascribed to the institution of bail, namely to maximise personal liberty, fits snugly into the normative
system of the Bill of Rights.

Although societal interests may demand that persons suspected of having committed crimes forfeit
their personal freedom pending the determination of their guilt, such deprivation is subject to
judicial supervision and control. Moreover, in exercising such oversight in regard to bail the court is
expressly not to act as a passive umpire. If neither side raises the question of bail, the court must do
so. If the parties do not of their own accord adduce evidence or otherwise produce data regarded by
the court to be essential, it must itself take the initiative. Even where the prosecution concedes bail,
the court must still make up its own mind. In principle, that policy of the Act, and the consequential
provisions mentioned, are in complete harmony with the Constitution.

There is a fundamental difference between the objective of bail proceedings and that of the trial. In
a bail application the enquiry is not really concerned with the question of guilt. That is the task of the
trial court. The court hearing the bail application is concerned with the question of possible guilt only
to the extent that it may bear on where the interests of justice lie in regard to bail. The focus at the
bail stage is to decide whether the interests of justice permit the release of the accused pending
trial; and that entails in the main protecting the investigation and prosecution of the case against
hindrance.

Whether s 60(4) - (9) offends against the separation of powers principle

If one were to read the opening sentence of ss (4) without regard to the provisions of ss 60(1)(a) and
60(9) of the Act and s 25(2)(d) of the Constitution of the Republic of South Africa Act 200 of 1993
(the interim Constitution), it could possibly be understood as a mandatory injunction to a judicial
officer to conclude that something is or is not in the interests of justice, irrespective of the officer's
own conclusion. That certainly would constitute an objectionable deeming provision. But one must
read the provisions together. Subsections (4) - (9) are not intended as deeming provisions at all.
What those subsections do is to list, respectively, the potential factors for and against the grant of
bail to which a court must pay regard. Neither ss (4) nor ss (9) commands a court to come to an
artificial conclusion of fact. On the contrary, courts are told that, if they find one or more of the
factors listed in s 60(4)(a)-(d) to have been established, a finding that continued detention is in the
interests of justice will be justified. Put differently, judicial officers are pointed towards categories of
factual findings that could ground a conclusion that bail should be refused. By like token a court is
not enjoined to accord decisive weight to the one or other or all the personal factors mentioned in ss
(9). In short, the Legislature was providing guidelines as to what are factors for, and what are factors
 ~ 34 ~

against, the grant of bail. Whether and to what extent any one or more of such pros or cons are
found to exist and what weight each should be afforded is left to the good judgment of the presiding
judicial officer. Such guidelines are no interference by the Legislature in the exercise of the
Judiciary's adjudicative function; they are a proper exercise by the Legislature of its functions,
including the power and responsibility to afford the Judiciary guidance where it regards it as
necessary.

Criterion of the 'interests of justice'

In s 60(4), (9) and (10) the drafters must have contemplated something closer to the conventional
'interests of society' concept or the interests of the State representing society. That must also be the
sense in which 'the interests of justice' concept is used in ss (4). That subsection actually forms part
of a functional unit with ss (9) and (10). Between them they provide the heart of the evaluation
process in a bail application, ss (9) being predominant. If it is read first and 'the interests of justice'
bears the same narrow meaning akin to 'the interests of society' (or the interests of justice minus
the interests of the accused), the interpretation of the three subsections falls neatly into place. In
deciding whether the interests of justice permit the release on bail of an awaiting trial prisoner, the
court is advised to look to the five broad considerations mentioned in ss (4)(a)-(e), as detailed in the
succeeding subsections. And it then has to do the final weighing up of factors for and against bail as
required by ss (9) and (10). Section 60(4), (9) and (10) should therefore be read as requiring of a
court hearing a bail application to do what courts have always had to do, namely to bring a reasoned
and balanced judgment to bear in an evaluation in which the liberty interests of the arrested person
are given the full value accorded by the Constitution. In this regard it is well to remember that s
35(1)(f) itself places a limitation on the rights of liberty, dignity and freedom of movement of the
individual. In making the evaluation, the arrested person therefore does not have a totally
untrammelled right to be set free. More pertinently than in the past, a court is now obliged by s
60(2)(c), (3) and (10) to play a pro-active role and is helped by ss (4) - (9) to apply its mind to a whole
panoply of factors potentially in favour of or against the grant of bail.

Use of factors unrelated to trial in ss (4)(a) and (5)

Section 35(1)(f) presupposes a deprivation of freedom - by arrest - that is constitutional. This
deprivation is for the limited purpose of ensuring that the arrested person is duly and fairly tried. But
s 35(1)(f) neither expressly nor impliedly requires that, in considering whether the interests of justice
permit the release of that detainee pending trial, only trial-related factors are to be taken into
account. The broad policy considerations contemplated by the 'interests of justice' test can, in that
context, legitimately include the risk that the detainee will endanger a particular individual or the
public at large. Less obviously, but nonetheless constitutionally acceptable, a risk that the detainee
will commit a fairly serious offence can be taken into account. The important proviso throughout is
that there has to be a likelihood, ie a probability, that such risk will materialise. A possibility
or suspicion will not suffice. At the same time, a finding that there is indeed such a likelihood is no
more than a factor, to be weighed with all others, in deciding what the interests of justice are. That
is not constitutionally offensive. Nor does it resemble detention without trial, the reprehensible
institution really targeted when one speaks of preventive detention. Absent a proper basis for the
original arrest, it will be set aside. But if there was a proper cause, one cannot justify release solely
on the absence of trial-related grounds.
 ~ 35 ~

Whether ss (4)(e) and (8A) frustrate the right to bail

Ordinarily, the factors identified in s 60(4)(e) and (8A) would not be relevant in establishing whether
the interests of justice permit the release of the accused. Although they do infringe the s 35(1)
(f) right to be released on reasonable conditions, they are saved by s 36 of the Constitution. Open
and democratic societies based on human dignity, equality and freedom, after weighing the factors
enumerated in s 36(1)(a)-(e) of the Constitution, would find s 60(4)(e) and (8A) reasonable and
justifiable in the prevailing climate in South Africa. The constitutional principle is clear: a court may,
not must, take the factors enumerated in ss (8A) into account, and must do so judicially; and the
ordinary appeal and review mechanisms can remedy any undue deference that may be afforded to
public sentiment. It is important to note that ss (4)(e) expressly postulates that it is to come into play
only 'in exceptional circumstances'. This is a clear pointer that this unusual category of factors is to
be taken into account only in those rare cases where it is really justified. What is more, ss (4)(e) also
expressly stipulates that a finding of such exceptional circumstances has to be established on a
preponderance of probabilities ('likelihood'). Once the existence of such circumstances has been
established, para (e) must still be weighed against the considerations enumerated in ss (9) before a
decision to refuse bail can be taken. Having regard to these jurisdictional prerequisites, the field of
application for ss (4)(e) and (8A) will be extremely limited.

'Exceptional circumstances' in s 60(11)(a). Under ss (11)(a) the lawgiver made it quite plain that a
formal onus rests on a detainee to 'satisfy the court'. Furthermore, unlike other applicants for bail,
such detainees cannot put relevant factors before the court informally, nor can they rely on
information produced by the prosecution; they actually have to adduce evidence. In addition, the
evaluation of such cases has the predetermined starting point that continued detention is the norm.
Finally, and crucially, such applicants for bail have to satisfy the court that 'exceptional
circumstances' exist. To the extent, therefore, that the test for bail established by s 60(11)(a) is more
rigorous than that contemplated by s 35(1)(f) of the Constitution, it limits the constitutional right.
Section 60(11)(a) does not contain an outright ban on bail in relation to certain offences, but leaves
the particular circumstances of each case to be considered by the presiding officer. The ability to
consider the circumstances of each case affords flexibility that diminishes the overall impact of the
provision. What is of importance is that the grant or refusal of bail is under judicial control, and
judicial officers have the ultimate decision as to whether or not, in the circumstances of a particular
case, bail should be granted. There is no validity in the complaint that the term 'exceptional
circumstances' is so vague that an applicant for bail does not know what it is that has to be
established. An applicant is given broad scope to establish the requisite circumstances, whether they
relate to the nature of the crime, the personal circumstances of the applicant, or anything else that
is particularly cogent. In requiring that the circumstances proved to be exceptional, the subsection
does not say they must be circumstances above and beyond, and generically different from those
enumerated in ss (4) - (9). The evaluation is to be done judicially, which means that one looks at
substance, not form. Although the inclusion of the requirement of 'exceptional circumstances' in s
60(11)(a) limits the right enshrined in s 35(1)(f), it is a limitation which is reasonable and justifiable in
terms of s 36 of the Constitution in the current circumstances in South Africa.

The accused must be 'given a reasonable opportunity' to establish what the subsection requires. The
lawgiver did not specify how that is to be done, nor what would be necessary to qualify as
'reasonable'. This much is clear, however: an opportunity has to be afforded and it has to be
 ~ 36 ~

reasonable; and it has to be reasonable having regard to the limits that the subsection places on the
category of arrested persons concerned. The requirement of reasonableness is peremptory, though
the subsection does not spell out what that means. Nor need it do so. What is or is not a reasonable
opportunity must depend upon the facts of each particular case. No accused can ever be lawfully
confronted with the dilemma that the onus and the duty to begin is on her or him to prove the
exceptional circumstances with no knowledge of the prosecution case - the presiding judicial officer
would be failing in his or her duty were that to be permitted to happen. It is one of the fundamentals
of a fair trial, whether under the Constitution or at common law, standing co-equally with the right
to be heard, that a party be apprised of the case which she or he faces.

Semble: whether a court is entitled under ss (11) to make its own evaluation of the facts in order to
allocate the case to the one paragraph of ss (11) or the other is open to considerable doubt. On the
wording of the subsection and of ss (11A), and having regard to the informal and interlocutory
nature of bail proceedings, it seems that the formulation of the charge - if necessary supported by a
certificate - is ordinarily decisive on this question.

Prohibition on access to the docket for the purposes of a bail application (s 60(14))
What is in issue at the stage of a bail application is not the fairness or otherwise of the trial, but the
qualified right of an arrested person under s 35(1)(f) of the Constitution to be released from custody
if the interests of justice permit. And what is more particularly in issue here is the effect that s 60(14)
may have on that right. Notwithstanding the provisions of ss (14), a prosecutor may have to be
ordered by the court, under ss (11), to lift the veil in order to afford the arrested person the
reasonable opportunity prescribed there. Subsection (14) can therefore not be read as sanctioning a
flat refusal on the part of the prosecution to divulge any information relating to the pending
charge(s) against the arrested person, even where the information is necessary to give effect to the
'reasonable opportunity' requirement of ss (11). And there is a ready - and less absolute -
interpretation of ss (14) which is both consistent with its language and in harmony with ss (11). The
words 'have access to' in ss (14) are to be interpreted as barring physical access to the contents of
the docket, in the sense of having sight of or perusing such contents. In the result ss (14), read
restrictively as indicated, does no more than make plain that, whatever access to the police docket
an accused may have to be afforded in order to protect the right to a fair trial guaranteed by the
Constitution, there is no correspondingly general right at the bail stage. And in order to make that
intention completely plain, the proviso to the subsection expressly excludes access required for trial
purposes from its prohibitory ambit. It follows that there is no constitutional fault to be found with
the subsection.

Admissibility of bail proceedings at trial (s 60(11B)(c))

It cannot be denied that there is a certain tension between the right of an arrested accused to make
out an effective case for bail by adducing all the requisite supporting evidence, and the battery of
rights under s 35(1) and (3) of the Constitution. But that kind of tension is by no means unique to
applicants for bail. Nor does its mere existence sound constitutional alarm bells. Choices often have
to be faced by people living in open and democratic societies. Indeed, the right to make one's own
choices is an indispensable quality of freedom. And often such choices are hard. It goes without
saying that an election cannot be a choice unless it is made with proper appreciation of what it
entails. It is particularly important in this country to remember that an uninformed choice is indeed
 ~ 37 ~

no choice. The responsibility resting upon judicial officers to ensure the requisite knowledge on the
part of the unrepresented accused need hardly be repeated. The protection of an arrested person
provided under the right to remain silent in the Constitution - or the right not to be compelled to
confess or make admissions - offers no blanket protection against having to make a choice. It is true,
the principal objective of the Bill of Rights is to protect the individual against abuse of State power;
and it does so, among others, by shielding the individual faced with a criminal charge against having
to help prove that charge. That shield against compulsion does not mean, however, that an applicant
for bail can choose to speak but not to be quoted. As a matter of policy the prosecution must prove
its case without the accused being compelled to furnish supporting evidence. But if the accused,
acting freely and in the exercise of an informed choice, elects to testify in support of a bail
application, the right to silence is in no way impaired. Nor is it impaired, retrospectively as it were, if
the testimony voluntarily given is subsequently held against the accused. There is no warrant for
creating a general rule which would exclude cogent evidence against which no just objection can be
levelled. The trial court must decide whether it is a valid objection, based on all the peculiar
circumstances of the particular case, not according to a blanket rule that would throw out good and
fair evidence together with the bad. Provided trial courts remain alert to their duty to exclude
evidence that would impair the fairness of the proceedings before them, there can be no risk that
evidence unfairly elicited at bail hearings could be used to undermine accused persons' rights to be
tried fairly. It follows that there is no inevitable conflict between s 60(11B)(c) of the Act and any
provision of the Constitution. Subsection (11B)(c) must, of course, be used subject to the accused's
right to a fair trial and the corresponding obligation on the judicial officer presiding at the trial to
exclude evidence, the admission of which would render the trial unfair. But it is not only trial courts
that are under a statutory and constitutional duty to ensure that fairness prevails in judicial
proceedings. The command that the presiding judicial officer ensure that justice is done applies with
equal force to a bail hearing. There the presiding officer is duty bound to ensure that an accused
who elects to testify does so knowing and understanding that any evidence he or she gives may be
admissible at trial. Indeed, it could well happen that an arrested person adopts the attitude that, for
the purposes of the bail application, guilt is conceded but a compelling case for release is still made
out. It would also be proper for an arrested person when testifying in support of bail to refuse to
answer any questions relating to the merits of the charge and the defence thereto. Not only are the
innocent entitled to their release on bail pending trial.

Accordingly none of the provisions of the Act impugned in the cases before the Court infringed the
Constitution on any of the grounds advanced.

The decision in the Natal Provincial Division in S v Dlamini confirmed. The decisions in the Cape
Provincial Division in S v Schietekat and S v Joubert reversed.

Bail granted subject to conditions

 S60(12): the court may make the release of an accused on bail subject to conditions
which, in the courts opinion, are in the interests of justice.
 General principles applicable to conditions of bail:
 Not contra bonos mores
 ~ 38 ~

S v Louw
- Appellant had been charged along with 5 other accused on various counts of
theft and fraud.
- Theft charges related to activities of a car theft syndicate.
- Appellant was a widower and therefore a single father of 2 children who had
experienced a lot of disruption in their lives.
- But the case against the accused was strong and there was a possibility that
the accused was going to marry one of the state witnesses who would then
not be able to give evidence against him (marital privilege).
- It was held that even though a condition could be imposed restricting him
from making contact with the witness, he had a constitutional right to
freedom of association and such a condition would be contra bonos mores.
- Held that he would not be granted bail as it was not in the interests of justice
to do so.

 Not vague or ambiguous- S v Budlender

 Not ultra vires-
S v Russell
- Appellant charged with obstructing and hindering officers of the Bantu Affairs
Administration and the police in their performances of their duties at certain
squatter camps.
- Applied for bail and magistrate imposed condition that he did not enter any
of the squatter camps in the Belville Magisterial area.
- But the condition was struck down because it resulted in the magistrate
imposing a restriction on the appellant, preventing him from carrying out his
duties as an Anglican priest.

 Should be practically feasible

R v Fourie
- A court is entitled to go in to all the circumstances to determine what type of
man the accused is and it is entitled to have regard to the type of crime
committed by the accused.
- From this the court can estimate whether there will be tampering with
witnesses and therefore whether it will be practically feasible to impose
conditions.
 Further conditions can be added subsequently on application by the prosecutor
 S62: court before which a charge is pending in respect of which bail has been
granted at any stage after granting bail may add further conditions on
application by prosecutor:
- With regard to reporting in person by the accused at any specified time or
place to a specified person/authority.
- With regard to any place to which he is forbidden to go.
 ~ 39 ~

- With regard to any prohibition of or control over communication by the

accused with witnesses for prosecution.
- With regard to place at which document may be served on him under this
Act.
- Which, in the opinion of the court, will ensure that the proper
administration of justice is not placed in jeopardy due to the release of
the accused.
- Which provides that the accused shall be placed under the supervision of
a probation officer or correctional officer.
 S63: court may amend or supplement any conditions or may increase or
decrease the amount of bail on application by the prosecutor or the accused.

Release on warning instead of bail, or amendment to bail conditions

 A head of prison may initiate release on bail when the conditions of awaiting trial
prisoners become intolerable (eg due to overcrowding).
 He must be of the opinion that the human dignity, physical health or safety of the
accused is threatened imminently.
 Only in terms of offences for which a police official may grant bail in terms of s59 or
those referred to in schedule 7.
 Must lodge a written application to the clerk of the court for the release of the accused.

S64 – Bail proceedings to be recorded in full

 All the relevant proceedings must be recorded, including the imposition of conditions
and any amendments or supplementations.
 The record will be prima facie proof of the conditions or any amendment or
supplementation thereof.

Appeal to the HC against refusal of bail by the lower courts, or against an amount /
conditions
S65: an aggrieved accused may appeal to the high court.
 May not bring new facts into the appeal, unless the new facts were first brought before
the lower court which dealt with the application.
 Must serve notice of intention to appeal to the attorney general and on the magistrate
who must then furnish reasons for his decision not to grant bail.
 The judge hearing the appeal shall only set aside the original decision if it is satisfied that
the decision was wrong.

Appeal by the DPP to the HC against a decision to release on bail or against a bail
condition
The DPP needs leave to appeal.
 The provisions relating to the application by the accused apply equally here.
 ~ 40 ~

 S65A must be read with s310A in terms of which the prosecutor must give reasons for
why the appeal should be heard.

Three situations for the cancellation of bail / forfeiture of bail money

1. Failure of the accused to observe the conditions of bail
S66: the prosecutor can apply to have bail cancelled.
 S66(1) - If the accused is present, he may give evidence as to why he failed to observe
the conditions.
 S66(2) - If he is not present, a warrant for his arrest is issued following which he gives
evidence.
 S66(3) - If the court decides that he is at fault in failing to comply, it may cancel his bail
and order that the bail money be forfeited.
 These proceedings are also recorded

2. Failure of the accused to appear

 S67 (1) - If he fails to appear in court on the due date, his bail is provisionally cancelled
and bail money provisionally forfeited to State and a warrant of arrest is issued.
 S67 (2) - If he appears within 14 days the court conducts an enquiry into his absence and
either confirms the cancellation and forfeiture or, if the accused shows no fault, reverts
back to the previous position.
 Note: this contains a reverse onus and a similar reverse onus in the case of non-
appearance after being released on warning was modified by the Constitutional Court to
read that the onus is on the state.
S v Singo
The court read in the words “there is a reasonable possibility that”…
Therefore in terms of s67, it would be changed to read that there must be a
reasonable possibility that the failure to appear was not due to the fault of the
accused.
 Criminal liability for failure for failure to observe conditions of bail:
 According to s67A it is now a criminal offence to not appear when on bail or to
not observe a condition of bail.

3. Cancellation of bail in circumstances other than s66 and s67

 S68: bail can also be cancelled in the following circumstances:
a) Accused about to evade justice or abscond
b) Accused has interfered with, or threatened/attempted to interfere with witnesses
c) Accused has defeated or attempted to defeat the ends of justice
d) Accused poses threat to safety of public or individual
e) Accused has not fully disclosed all previous convictions during bail hearings
f) Further evidence or factors come to light which might have affected the decision
to grant bail
 ~ 41 ~

g) If generally in the interests of justice.

 Note: s68 only allows for cancellation, no forfeiture as there has in fact been no breach
of the conditions yet, therefore it would be unfair and harsh to forfeit when there is no
actual breach.

Release on warning in lieu of bail

S72: an accused may be released on warning instead of on bail and conditions may also be
imposed. This is also referred to as ‘free bail’.
 If he fails to adhere to conditions or to appear, a similar situation as with bail occurs.
 The burden of proof created by the reverse onus has been lessened by S v Singo
which stated that if there is a reasonable possibility that the failure to appear is not
the fault of the accused, then he can avoid further payment of a fine and
imprisonment.
 Therefore he does not have to prove beyond a reasonable doubt that the failure to
appear was not his fault, it must just be reasonably possible that it wasn’t his fault.
 ~ 42 ~

TOPIC 6
BAIL PENDING APPEAL OR REVIEW

Noting of an appeal against conviction / sentence / order of lower court does not
automatically suspend the operation of sentence unless bail granted (S309 (4)(b) read with
307).

S307(2)(a) If bail granted previously the court may extend bail after conviction pending
appeal
S397(2)(b) If not previously on bail the court may now grant bail on the condition that
the required amount is deposited
S397(2)(c) the court can permit the furnishing of a guarantee instead of cash
S307(3) the bail shall contain a surrender of freedom clause: on the correct notice the
person in question must surrender their freedom and make themselves
available to commence with any sentence imposed by the lower court or
court of appeal
S307(4) the court may add conditions deemed necessary or advisable in the interests
of justice e.g. provisions relating to:
 Reporting.
 Locality (i.e. places where the convicted person may not go, e.g. the
airport).
 Conduct of the convicted person.
 The likelihood of tampering with witnesses is non-existent as they
have already given evidence, and now the appeal is heard on the
record, not on merits or evidence. This is the difference between bail
pending appeal and bail pending trial.

Application of certain pre-sentence bail conditions

63 Court may subsequently amend conditions of bail.
64 Bail proceedings to be recorded in full.
65 Convicted may appeal to the High Court in regards to the granting of, or
conditions of bail.
66 Failure to comply has the same consequence as pre-trial.
68 Bail cancellation provisions are the same for pre-trial.
60 Not applicable, although s60 still relevant to the extent that it embodies the
common law concepts

 In the bail application the practical considerations are different. The accused is no longer
presumed innocent and further they are convicted and therefore there is a greater
incentive to evade justice. The key consideration in bail proceedings however is whether
the convicted will report for sentence:
R v Milne & Erleigh
 ~ 43 ~

- Very obscure case in this regard, mostly pertaining to a Director’s fiduciary duty
towards the maintenance of the company books.
 Even if no indications that the accused will try and evade justice, bail may be refused on
grounds that the chance of success of the appeal is slim- S v Beer.*
 However bail should not easily be refused on this ground alone, especially by the lower
courts which are less competent to assess the chance of success of appeal. May refuse
bail if appeal, whether win or lose, will incur prison time.
 Logically a court may refuse bail, pending appeal if there is an appeal against sentence
only and at best for the convicted person, whichever way the appeal goes, s/he will still
end up serving a lengthy period of imprisonment.
 If a convicted person loses their appeal to HC s/he may still be released on bail pending
application for leave to appeal or petition to the SCA- R v Patel.
 Note that in such later case there is no statutory provision for bail: courts have relied on
inherent power.
 ~ 44 ~

TOPIC 7
ASCERTAINMENT OF BODILY FEATURES OF THE ACCUSED

This is governed by s37 of the CPA

• This section governs powers/rights of State to take bodily samples, etc, from accused
for purposes of comparison, analysis and evidence (note valid reason for such).
• But such has potential to clash with various constitutional rights of accused (dignity,
bodily integrity)

Police powers without the need for a court order

 In terms of the Act the police in certain circumstances can do various things to ascertain
bodily condition etc. of accused These circumstances are:
• S37(1) a person arrested on any charge or
• Person released on bail or warning under s72.
 When person arrested on any charge, or released on bail or warning, police can do
following without need for court order (s 37(1)):
(i) take finger-, palm- or footprints;
(ii) make arrestee available for ID parade;
(iii) take steps to ascertain whether body of arrestee has any mark, characteristic or
distinguishing features or shows any condition or appearance (blood tests fit in
here);
 Police may not take blood sample themselves, or examine a female unless
the examiner is also female.
(iv) Take photographs.

 In cases in which the police are authorised in terms of s37(1) to undertake steps etc:
• Certain medical officers may take steps, including blood samples, as may be
necessary as to ascertain whether body has mark, characteristic or distinguishing
features.
• S37(2) (a) Medical officers (prison doctor, district surgeon) do not need police
request to take blood samples etc.
• However other medical practitioners and nurses do need police request.
• However, an exception is s37(2) (b): Where medical doctors who are attached to a
hospital may take blood samples of a person admitted to the hospital if they are of
the reasonable opinion that such samples may be relevant at later criminal
proceedings (here use of doctor’s own initiative).

Court can order taking of a sample

 S37(3) - In cases where the police etc. are not entitled to act / empowered to take steps
(eg not fall within s37(1) (i) or (ii) because accused summonsed, not arrested) the court
 ~ 45 ~

before which the criminal proceedings are pending may take same steps (i.e. order
samples).
 S37(5) - If no prosecution instituted, or if accused acquitted, samples, etc to be
destroyed.

Constitutionality of s37
 Two types of constitutional challenge thus far:
(1) Taking/Furnishing of sample constitutes self-incrimination or violates the
accused’s right not to incriminate self: Constitution, s 35(3)(j)
(2) Process itself violates constitutional rights:
– Dignity: s 10
– Cruel, inhuman, degrading treatment: s 12(1)(e)
– Body and psychological integrity: s 12(2)

(1) DOES S37 OF CPA ATTEMPT TO SANCTION SELF-INCRIMINATION?

 No!
 Courts have consistently held that the taking of such samples does not violate the right
not to incriminate oneself :
 s 35(3)(j) of Constitution only protects accused against self-incriminating by way of
communications, and not other types of incrimination (such as samples).
S v Huma
- During the course of a criminal trial, the State indicated that it wished to take the
fingerprints of accused 1 so as to enable its expert witness to compare them with the
fingerprints found on a vehicle. Accused 1 refused to submit himself for this purpose,
claiming that the taking of fingerprints impaired his constitutional right to dignity
and infringed his right to remain silent.
- Held – the taking of fingerprints was not inhuman nor degrading: the practice was
accepted worldwide as a proper form of individual identification; the taking of
fingerprints in private could not lower a person’s self-esteem; it did not constitute an
intrusion into a person’s physical integrity; if taken in terms of s37 of the CPA, they
would be destroyed if the person was acquitted; and the taking of fingerprints could
be a useful method for ensuring the acquittal of an accused.
Levack v Regional Magistrate
- The police arrested the accused for making obscene phone calls to a woman.
- Police wanted to compare accused’s voice recordings with recordings of the phone
calls.
- The accused refused on the basis that it violated his right not to incriminate himself.
- Court held s35(3) (j) only relates to admitting of guilt etc.
- Samples therefore do not amount to self-incrimination, based on an objective fact.
S v Maphumalo
 ~ 46 ~

- Application for an order allowing police to take fingerprints of an accused indicted

on charges of murder and housebreaking.
- Accused claimed such was unconstitutional.
- Held: taking of fingerprints whether voluntary or by compulsion under s37(1) of the
CPA does not constitute evidence by the accused in the form of testimony emanating
from the accused and does not violate s25(2) (c ) or 25(3) (d) of Constitution.
Ex Parte Minister of Justice: In Re Matemba
- Though the common law condemns the interrogation of the accused and prohibits
an accused person from being compelled to testify, no privilege is violated by the
taking of palm prints, as they are obtained from the accused’s body itself.
- Before Matemba’s trial, a print of his palm was taken by a police officer.. in the
course of the trial the print taken from the accused’s palm was tendered as evidence
to prove that the markings on it corresponded with the markings on the imprint of a
palm made by someone on the window sill of the premises broken into. The purpose
of the evidence was to prove that the accused was the person who had left the
imprint on the window sill and thus to identify him as the person who had broken
into the premises.
- Evidence of a palm print is not rendered inadmissible by the fact that the print was
taken against the will of the accused and neither the maxim nemo tenetur se ipsum
prodere nor the confession rule apply to such evidence.
Minister of Safety & Security v Gaqa
- There was a robbery involving a shootout. The applicants applied for an order
compelling the respondent to submit himself to an operation for the removal of a
bullet from his leg. The applicants alleged that they had reason to believe that the
respondent had been shot and injured in the course of the attempted robbery. The
respondent opposed the application.
- The court granted the police an order for the removal of the bullet from the suspects
leg for identification purposes- to compare with the firearm used at the scene of the
crime. The court took a purposive approach, holding that s27 of the CPA provided for
the use of force in order to search a person.
- Held – s37 of the Act permitted an official to take such steps as he deemed necessary
to ascertain whether the body of any person had any ark. The court held that the
police would be hamstrung in fulfilling their constitutional duty if the order were not
granted.
 But in Minister of Safety & Security v Xaba, a person arrested with a bullet in his leg and
refused to have it removed. The court held that removal would be going to far and
refused to grant an order for the operation.

(2) DOES S37 VIOLATE RIGHTS TO DIGNITY, BODILY INTEGRIT ETC?

 Courts have held s 37 to constitute a reasonable limitation under s36 of Const to rights
of dignity, integrity, etc:
 ~ 47 ~

– S v Huma
– Minister of Safety & Security v Gaqa (see above)
– S v Orrie

Types of situations in practice

The following examples are quite common:
 Fingerprints
 Blood samples (eg for DNA or alcohol level)
 Hair samples
 X rays
 ID parades
 Handwriting
 Photographs
 Voice samples: see Levack's case where held voice sample held to be included under
‘distinguishing features’.

ID Parades
 Some recognised principles have been developed over years for ID parades.
 These recognised procedures ensure fairness and reliability:
R v Masemang
 The identity of an accused fixed at identity parade not conducted according to the
recognised procedure.
 Where the Id of an accused rested upon the testimony of a single witness and the
accused was identified at a parade which was admittedly conducted in a manner
which did not guarantee the standard of fairness observed in a recognised procedure
but was calculated to prejudice the accused.
 Held that such evidence standing by itself could have little weight in court
proceedings. Some of the procedures laid down include:
- Should have at least 12 people participating in id parade;
- People should look vaguely similar;
- Person who organises parade should have no connection to the investigation;
- Witnesses must not have a chance to talk to each other.
 Police have standing orders/rules to govern for conduct of ID parades.(s37)
 Nowadays ID parades are often videotaped, to reduce arguments about fairness and to
minimise disputes about what occurred.
 Also can now get special ID parade rooms (yes like in the movies) so that witnesses do
not feel intimidated by confrontation with possible suspect.

Id by photographs
 Sometimes however id parades are not feasible and as such photographs are shown to
witnesses or potential witnesses to see if they can identify suspect (photo parades)
 ~ 48 ~

 Such procedure not necessarily wrong or valueless, but great care should be taken
 S v Ndika: Here the identification done by photographs was found not to be
automatically valueless but need suitable conditions.

TOPIC 8
TRIAL IN LOWER COURT: CHARGES
 ~ 49 ~

PROCEDURES RELATING TO ESSENTIALS OF VALID CHARGE

Nature of the charge

 Charge is the basic document setting out formally what the prosecutor (‘State’) alleges
against the accused
 The prosecutor decides on what the allegation(s) are
 Prosecutor is the dominus litis (one who has the initiative in the case)
 As such decides who to charge, on what charge(s), how to frame the charges, etc.

Joinder of charges
81(1) Any number of charges may be joined in same proceedings against same
accused: charges to be numbered consecutively (eg Count 1, Count 2, etc).
81(2) Court can, if it thinks in interests of justice, direct that one or more charges
be tried separately.
 Such order can be made even after plea
 Effect: charge iro of which an accused is not accused is not then tried shall
be proceeded with in all respects as if the accused had in respect thereof
been charged separately.
 Charges can be added up to the stage before evidence is led.

Where there is uncertainty as to what the facts will prove

83 Where there is uncertainty as to what the facts will prove when the evidence is led, the
accused can be charged with all or any of the possibilities at once.
 In such a situation the charges can be alleged consecutively.
 Or they can be alleged in the alternative.
 Objection cannot be taken to so-called ‘splitting of charges’ only to duplication of
convictions.
S v Grobler en ‘n ander
Held: s83 is a sanction to include in the charge sheet all the charges which could
possibly be supported by the facts, even if they overlap to such an extent that
conviction on all or on some of the counts would amount to a duplication of
convictions. It is however, the task of the court to see to it that an accused is
not convicted of more than one offence if the crime with which the accused
is charged in the relevant charges rests on the same culpable fact. In short, it
is the court’s duty to guard against a duplication of convictions and not the
prosecutor’s duty to refrain from the duplication of charges. The purpose of
the principle is not to avoid multiple charges, but rather multiple convictions
in respect of the same offence.

What the charge must contain: s84

 ~ 50 ~

S84(1) Charge must contain: time, place of offence, person against whom offence
committed (if appropriate), property in respect of which offence committed
(if appropriate)
 This is to inform accused with reasonable particularity of nature of charge
 Enabling accused to prepare his defence.
 Where time is not a material element of the offence, failure to refer to it
will not render the charge defective.
 Same rationale applies to place, where material must be indicated
precisely.
 If offence falls outside the courts JD where the matter is pending, charge
sheet must refer to the exception upon which the State relies.
 Where the accused fails to object to jurisdiction, court assumed to have
jurisdiction.
 With reference to person against whom the offence was committed,
charge to contain: full name, residential address, occupation, race,
nationality, sex, age (where appropriate).
 Where various names – what he is generally known as will suffice.
 If theft – owner of property details also to be included.
 Offences in respect to property- described in such a manner that it is
identifiable.
S84(2) Where any of particulars unknown to prosecutor, sufficient to state that fact
in the charge.
S84(3) In a statutory offence it is sufficient to describe the offence in the words of
the statute
 The number of statutory provisions and particular section in which the
offence is created should also be included in the charge.
 Omissions of the above will be overlooked provided that the particulars
of the contravention still remain clear
 Where the accused is charged with a common law offence, sufficient to mention the
name of the offence in the charge
 To use the name that schedule 1 of the CPA assigns to that particular offence
 Precise name is not essential in circumstances in which the particulars of the act are of
such a nature that the accused would inevitably be aware of the charge against him

S85: Objection to the charge

S85(1) Objection to charge must be taken before plea, on grounds that:
a) Charge not comply with provisions of CPA relating to charge
b) Charge not set out an essential element of offence charged
c) Charge not disclose offence
d) Charge not contain sufficient particulars of any matter alleged in charge
e) Accused not correctly named or described in charge
 ~ 51 ~

 If objection is to be taken, reasonable notice to be given to the prosecutor, unless

prosecutor waives notice.

S85(2)(a) If court agrees with objection, it may order that the charge be amended, or
that the prosecutor deliver more particulars.
S85(2)(b) If the prosecutor does not deliver satisfactory particulars in response to such
an order, court may quash charge.

TOPIC 9
 ~ 52 ~

AMENDMENT OF CHARGES

Section 35 (3) (a) of the Constitution says the accused is entitled to reasonable clarity about
their charge.

Section 86
 Court may amend the charge at any time before judgment if there is no prejudice to the
accused.
 The court will prefer to amend rather than substitute.
 The grounds for amendment are as follows:

1. Want of essential averment

S v Hugo
- Appellant charged on seven counts of fraud, pleaded not guilty to main charge in all
seven counts but guilty to alternative charge for all but one of the counts.
- Accused entitled to require that he be informed of the charge with precision or at
least with a reasonable degree of clarity. This is vital to ensure accused is aware of
what he is pleading.
- Appellant alleged to have been misrepresented on two specific instances. The trial
court overruled this objection.
- Held - Potentially serious prejudice to appellant if he was misrepresented. It was
found that he was and conviction and sentence were set aside.

2. Variance between charge and evidence

S v Grey
- Accused charged with attempted housebreaking with intent to steal. Evidence
showed actual housebreaking and prosecutor applied to amend charge at end of
State’s case to amend the charge accordingly.
- Amendment granted by magistrate but regional magistrate queried whether
proceedings were in accordance with justice and matter referred to Provincial
Division.
- Was neither necessary nor desirable to seek to define parameters of permissible
amendments.
- Was clear that these parameters were wide for basic test seemed to be that of
prejudice.
- There was no prejudice and although it was a consideration that amendment
possibly introduced a more serious charge itwas not significant in this situation.

3. Missing words or particulars

R v Crause
 ~ 53 ~

- Appellant charged with contravening s 31 (1) (c) instead of s 31 (1) (b). He had driven
while under the influence of narcotic drugs.
- On date of appearance the matter was postponed at request of defence.
- On return day accused pleaded not guilty, exception to charge as disclosing no
offence.
- Public prosecutor applied for amendment to charges, which were granted despite
defence objections. Appellant applied for postponement which was refused.
- Held - On second appeal was found that amendment did not introduce a wholly new
offence but merely filled a gap in the setting out of an offence.
- Magistrate had acted in his powers in granting the amendment.

4. Excess words or particulars

5. Any other error

 Note that s86(1) allows a charge to be amended even if the original charge does not
disclose an offence.
 It was necessary for the legislation to introduce this so as to correct the effect of R v
Herschel.
- The argument was that the court couldn’t amend the charge if there was no offence.
Innes CJ found a different way of dealing with the matter because there was not
statutory provision dealing with it.

Section 86 (2)
 Court may, when granting amendment, grant adjournment to accused if it thinks fit.
 As long as the accused is not prejudiced in their defence (section 86 (1)).
 Basic test is to determine whether adjournment is fit is looking at the prejudice to the
accused.
S v Coetzer en ‘n ander
- First appellant convicted on charge of dealing in 16.75g of dagga and given
compulsory sentence of five years imprisonment.
- On appeal it was found that he had dealt in more than the previously stated amount.
- First appellant had not been misled into conducting his case in any other way than
he would have done if the charge had been absolutely correctly worded. Therefore it
was held that there was no prejudice to accused and invocation by magistrate was
fully justified.
S v Sithole
- The appellant was convicted in a magistrate's court of fraud and sentenced to 12
months' imprisonment with labour of which six months was suspended on condition
that the appellant performed 180 hours community service at the rate of seven
hours per day for five days per week.
 ~ 54 ~

- The appellant argued that the conviction could not stand as the charge was fatally
defective for lack of the allegation of prejudice which rendered it bad in law as not
disclosing the offence of fraud. It was alleged that prejudice must be allegedly or
readily inferred and that there should be a link between the misrepresentation
particularised and the prejudice suffered.
- The trial court agreed with the submission bet stated that as the State had proved
potential prejudice the defect had been cured by virtue of the provisions of s203 of
the Criminal Procedure and Evidence Act.
- Held - the charge would not be fatally defective if the allegation of prejudice could
be inferred from the factual allegations set out in the charge-sheet.
- The court drew a distinction between an intention to deceive and an intention to
defraud. The former meant an intention to make a person believe that something
was true when it was false and the latter involved an intention to induce a person to
embark on a course of action which was actually or potentially prejudicial to himself
as a result of the misrepresentation.
- Held - it is normally sufficient if the State proved a wilful false statement made with
the intention to deceive, and objectively, that prejudice flowed from it. The
appellant's claim that he acted altruistically was rejected especially in light of the
appellant's behaviour in relation to the moneys paid to him.

Section 86 (4)
 Fact that charge not amended shall not affect validity of proceedings, unless court
refuses to grant amendment.
 Amendment permissible but substitution is not.
S v Barketts Transport (Edms) Bpk en ‘n ander
- Appellants holder and user of public road transport permit
- Convicted in court a quo of contravention of provisions of Road Transportation Act
as they had unlawfully conveyed a quantity of yarn which was confirmed on appeal.
- At the hearing of the subsequent appeal, State attempted to amend the charge
sheet by substituting the provision that was contravened.
- Held - Section 86 (1) of CPA did not authorise amendment which in effect created
new charges. Words in s 86 (1) ‘any error in the charge’ had to be interpreted so it
referred to a defect in the charge.
- In this case appellant was charged with an incorrect offence which did not amount to
‘any other error in the charge’, so charge could not be amended because the
amendment would amount to substitution of the charge.
- Appeal successful and decision reversed.

S v Grey
- The accused was charged with attempted housebreaking with intent to steal.
 ~ 55 ~

- Evidence showed actual housebreaking and prosecutor applied to amend charge at

end of State’s case to amend the charge accordingly.
- Amendment granted by magistrate but regional magistrate queried whether
proceedings were in accordance with justice and matter referred to Provincial
Division.
- Held - Was neither necessary nor desirable to seek to define parameters of
permissible amendments. It was clear that these parameters were wide for basic test
seemed to be that of prejudice.
- There was no prejudice and although it was a consideration that amendment
possibly introduced a more serious charge. This was not significant in this situation.

Defect in charge cured by evidence (section 88)

 S88: where a charge is defective for the want of an averment which is an essential
ingredient of the relevant offence, the defect shall, unless brought to the notice of the
court before judgment, be cured in evidence at the trial proving the matter which should
have been averred.
 This section is superfluous due to the overlap between section 86 (4) and it has been
discussed that they should be combined
S v Van Wyk
- The appellant had been convicted of committing the offence of driving a car without
the consent of the owner. In an appeal the conviction was confirmed and in a further
appeal it was contended on the appellant's behalf that the words "or person having
lawful custody of a vehicle" in the sub-section were a material element of the
offence and that the omission of them from the charge sheet had resulted in the
appellant being convicted of a non-existent offence. Held - it had not been
established that the appellant was under a mistake of fact or that it was a case for
the application of the principle de minimis non curat lex. The appeal was dismissed.
 Any amendment can be made before the verdict if it is non-prejudicial to the accused.
 ~ 56 ~

TOPIC 10
PLEA OF GUILTY

112(1): Applies where the accused pleads guilty to the offence or a lesser competent
verdict which is accepted by the prosecutor (murder and culpable homicide)

 Legal effect of a prosecutor accepting a plea of guilty to a lesser offence: if the

prosecutor accepts then the court has no say in the matter: the prosecutor’s
action is binding:
S v Ngubane
- A plea of guilty to culpable homicide accepted by State where accused
charged of murder. The court not being satisfied that written statement in
terms of s 112 (2) of Act 51 of 1977 admitted all the elements of offence of
culpable homicide and changing plea to not guilty and directing prosecution
to lead evidence. The accused thereafter being convicted of murder after
evidence led. Court on appeal holding that acceptance by State of such a
plea a sui generis act by the prosecutor which limited ambit between the
State and the accused in accordance with accused's plea.
- A failure of justice resulting from irregularity entitling Court to intervene on
appeal. Conviction altered to one of guilty of culpable homicide.

112(1)(a): Where the accused pleads guilty to offence and conviction follows on plea only.

 Presiding officer must be of the opinion that the offence does not warrant
imprisonment without option of a fine or a fine exceeding R1500.
 Presiding officer cannot exceed this verdict if 112(1)(a) is used.
 It was held in S v Sinque, that this provision should not be used in serious
matters.

112(1)(b): If the accused pleads guilty and either Presiding officer

(i) The presiding officer is of the opinion that the offence warrants punishment
exceeding those allowed for in 112(1)(a), or;
(ii) The prosecutor requests that 112(1)(b) questioning be instituted

Then the presiding officer must ask questions of the accused to satisfy himself that
the accused is guilty.

The purpose of section 112(1)(b)

S v Mkhize
 ~ 57 ~

- S112 (1)(b) of the CPA must be read with s113 of the CPA. S112 (1)(b) allows an accused
person who has pleaded guilty to an offence to be convicted of it without evidence,
provided, however, that the court is satisfied that he is indeed guilty of it.
- Before they are capable of satisfying the court that the accused is actually guilty of the
offence to which he has pleaded not guilty, they must at least cover all the essential
elements of the offence which the State would otherwise have been required to prove.
If any of these is not admitted, the court cannot be satisfied of the accused’s guilt. It
may not then convict him in terms of s112 (1)(b) on his plea of guilty. Instead s113 takes
effect. The court is, therefore, bound to record a plea of not guilty, and to require the
prosecutor to proceed accordingly.
- Held – when the court is called upon to decide whether an accused person’s response
to its questions adequately support the conviction under s112 (1)(b) of the Act, its
function is not to evaluate the answers as if it were weighing evidence, or to judge their
truthfulness or plausibility. It is simply to interpret them to see whether they
substantiate the plea. The test is what the accused person has said, not what the court
thinks of it.

S v Naidoo
- S112 (1)(b) of the CPA was designed to protect an accused from the consequences of an
unjustified plea of guilty, and that in conformity with the object of the Legislature, the
courts have correctly applied the section with care, and on the basis that where an
accused’s responses to the questioning of the court suggest a possible defence or leave
room for a reasonable explanation other than the accused’s guilt, a plea of not guilty
should be entered and the matter clarified by evidence.
- The appellant had been charged in the magistrate’s court on two main counts of dealing
in prohibited dependence-producing drugs (dagga and mandrax). In replying to the
magistrate’s questioning under s112 (1)(b) of the CPA, the appellant admitted that he
knew that the drugs were prohibited and explained that three men had come to him
asking for dagga and mandrax, that he had gone to someone and bought the drugs for
R60 and that he had returned to the three men and given the drugs. He had told them to
pay the R60 to him, whereupon they arrested him.
- Held – where the appellant had acted as an intermediary, all the facts pertaining to the
transaction had to be established before it could be determined whether the appellant’s
conduct constituted activities relating to the supply of drugs, or the acquisition of them,
or to both. Therefore the magistrate’s conviction of the appellant as based on the
appellant’s explanation could not be supported.
- Held – the order of the court a quo should be set aside and the matter remitted to the
magistrate who had convicted and sentenced the appellant to record pleas of not guilty
(in terms of s113) to the two main counts and to require the prosecutor to proceed with
the prosecution.

S v Diniso
- Court not to ask questions requiring mere affirmation by accused of legal conclusions.
The accused had been charged of failure to pay maintenance in contravention of s 11(1)
of Maintenance Act 23 of 1963 pleading guilty, and, as to defence of lack of means in s
11(3) of Act, merely asked whether he had 'right to disobey' order of court.
 ~ 58 ~

- It was held that it was not sufficient enquiry. The court was to explore facts giving rise to
inability to pay.

There is uncertainty as to whether the accused should be warned of their right

S v Nkosi
- There is no need to inform of right to silence.
- The position where an accused has pleaded not guilty and is then questioned is quite
different to that where he actually has pleaded guilty. On the plea of not guilty in terms
of s 119 of Act 51 of 1977 the questioning is primarily directed at establishing the issues
in the case and it is necessary that the accused should be protected from inadvertently
jeopardising his plea of not guilty. On the plea of guilty in terms of s 119 of Act 51 of
1977 the accused has already admitted the State's case. The questioning by the
magistrate in terms of s 119 read with ss 121 (1) and 112 (1) (b) is not primarily directed
to self-incrimination by the accused but indeed to the protection of the accused against
the consequences of an unjustified plea of guilty. The necessity of an explanation (of the
accused's right to silence or the right not to incriminate himself) conflicts with the whole
spirit of s 119 read with ss 121 (1) and 112 (1) (b) and the scheme of Act 51 of 1977.

DPP Natal v Magidela

- As a requirement of fairness, the right to silence should be explained, especially to an
unrepresented accused.
- Section 25(3) (c) of the interim Constitution Act 200 of 1993 provided that one of the
requirements of a fair trial was that an accused person had the right to remain silent
during plea proceedings. However, the interim Constitution did not expressly provide
that the accused was entitled to be informed of the right so to remain silent.
Nonetheless, fairness would, in general, require that the accused should be informed of
the right. However, the mere failure to inform an accused of the right to remain silent
does not ipso facto render inadmissible, at a subsequent trial, the record of the plea
proceedings in question. It is not every breach of the provisions of the interim
Constitution that automatically leads to the trial being unfair, as fairness is an issue that
has to be decided on the facts of each case.
- The judgment in S v Nkosi and the majority judgment in S v Mbaso and (to the effect
that an accused who has pleaded guilty to a charge does not have to be informed of his
right to remain silent before he is questioned in terms of s 112(1) (b) of the Criminal
Procedure Act) may have to be revisited, in the light of constitutional advances which
require criminal trials to be conducted according to basic notions of fairness and justice.

Basic rules governing questioning

 No cross- examination of accused.
 Avoid leading questions.
 More than whether the accused admits each charge: S v Mkhize
 Court should not persuade the accused that the denial of facts is incorrect
 Avoid unnecessary legal terminology
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 Care to be taken when asking the accused to admit information outside of their personal
knowledge:
S v Naidoo
- This case dealt with the plea of guilty. Questioning in terms of s 112 (1) (b) of Act 51
of 1977. Admissions therein by accused. It was held that it was wrong to state that a
court can never be satisfied as to the existence of a fact on the admission of that fact
by the accused where the fact admitted is not within his personal knowledge.
- In deciding on weight to be accorded to admission, court to have regard to the
sufficiency of accused's source of knowledge relating to the admitted fact. The court
on review confirming conviction on a plea of guilty where accused was constrained
to plead guilty by the force of the evidence available to the State.

 Accused’s answers are not evidence to be evaluated: S v Naidoo

 There is no need to eliminate all possible defences: S v Phundula

Written statement in lieu of questioning

s112(2): in lieu of questioning under section 112(1)(b), accused, or legal representative,

may hand in a written statement setting out facts admitted and on which
grounds he or she has pleaded guilty.

S v Nixon
- The appellant was charged with 9 counts of fraud. He pleaded guilty and was
convicted and sentenced to 16 years. Counsel read into the record a statement
signed by the appellant in terms of s112(2).
- On appeal it was argued the magistrate ought to have entertained a doubt
concerning whether the appellant was in law guilty of the offence to which he had
pleaded guilty.
- Held – there was no reason why a defect in a charge sheet could not be remedied by
an admission by the accused and there was no policy reason in the present inquiry
why an admission made in a statement in terms of s112 (2) should not be competent
material to remedy a charge sheet. The court held that the admissions in the
statement in fact cured the defect in the charge sheet.
- Held – the magistrate should have applied s113 (1)

s112(3): notwithstanding conviction on basis of questioning or written statement, there can

still be evidence can be led on sentence.

Correction of a plea of guilty (must know!)

s113: if there is any doubt as to the accused’s guilt before sentence, the court can
enter a plea of not guilty on the accused’s behalf. The court then proceeds in
ordinary way.
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There is no onus on accused when seeking to alter plea of guilty to not guilty
at the trial stage. This is different if the accused seeks to change the plea on
appeal: the onus is then on the accused to satisfy the court:

Qoko v La Grange
- This case dealt with the alteration of plea of not guilty after conviction and sentence.
Application for review to set aside plea of guilty and refer matter to trial court to
consider changing plea to not guilty - Onus on applicant - Every justification for not
saddling accused person with onus where she or he wishes to change plea from guilty to
not guilty at trial stage - Position different when trial over - Person convicted and
sentenced can no longer approach trial court for further relief - She or he no longer
presumed to be innocent - State relieved of onus of proving accused's guilt beyond
reasonable doubt by plea of guilty - Accused having to approach Superior Court either
on appeal or review - In either case she or he to discharge onus - Once trial over there is
no basis for treating applicant for review on ground of irregularly obtained plea of guilty
any differently from applicants who bring application for review on other grounds.