UNIT 1

1. Basic Introduction to Criminal Procedure

Reading Chapter 1

This chapter attempts to teach students how to approach criminal procedural law.
 Different models according to which the criminal process can be classified:
There are different criminal procedure models based on different possible perspectives on the criminal
process.
 Of importance are the accusatory and inquisitory criminal procedure systems; the “due process” model
and the “crime control model”.
 The main difference between the systems is the role and function of the judicial authority

Information in the Handbook is of particular importance here.

 Presumption of innocence/right to remain silent/ privilege against self-incriminations:
 Looks at the presumption of innocence and juridical guilt as against absolute, moral or factual guilt.
 This section explains the difference between the burden and the quantum of proof in civil as compared
to criminal cases.
 Constitutional rights-The Constitution and the Bill of Rights are construed and applied definitively by the
Constitutional Court, and are sovereign now. A Bill of Rights serves, amongst other things, as a
restriction of state power and a limitation of democracy.

Learning outcomes:
 You must be able to distinguish between the different models of criminal justice systems and
how they operate
 You must understand what is meant by the position of the accused as a full legal subject, rather
than just an object of an investigation.
 You should be able to distinguish between absolute and relative rights.

Proposed questions:
Test and examination questions will be in the form of primarily theory questions.
 Explain how an inquisitorial justice system operates as opposed to an accusatorial system
 Explain the difference between the crime control model and the due process model
 What does Section 35 of the Constitution provide for?
 1. Basic Introduction to Criminal Procedure

Criminal Procedure plays a pivotal role in preventing, detecting, and coping with crime. If we have criminal law,
without Criminal Procedure, there will be no way to enforce the laws that criminal law provides for.

In order to understand the role of Criminal Procedure, it is important to understand first and foremost the distinction
between Substantive & Adjectival law.

Substantive law are the legal rules that determine the rights and responsibilities of the State as well as the
Individuals living within a State. This is inclusive of both Public and Private Law. For example, substantive law
would prescribe the elements for the crimes of murder, fraud, theft. It further provides a punishment in the event
that a law is broken. However, it is not enough to merely provide a penalty with no means to enforce it. The
measures that are aimed at enforcing substantive law, are known as adjectival law. Criminal Procedure is a form
of adjectival law and works alongside the law of evidence to ensure that the substantive criminal laws do not stay
stagnant. The Criminal Procedure Act 51 of 1977 provides primarily for the rules of criminal procedure.

However, please note: Criminal procedure has to operate with common law and constitutional rights in mind.
Therefore, the right to life, human dignity, privacy and bodily integrity have to be borne in mind throughout this
module. Whilst the State has the power to enforce the rules of criminal law and criminal procedure, it has to be
ensured that this is done in accordance with the procedural laws and the Constitution.

Criminal procedure works as fundamental part of the ‘criminal justice system’.

The ‘Criminal Justice System’ comprises of the following:

 Criminal Procedure
 Substantive Criminal Law
 The Law of Evidence
 The Law of Sentencing
 Laws governing prisoners and prisons

The above branches all work in tandem as and as a whole in order to ensure that the interests of society are looked
after and that there is a fair but firm enforcement of the substantive laws of the country.

So at this stage you may be wondering, what exactly is criminal procedure?

Criminal procedure regulates the following:

 Duties and powers of criminal courts

 Duties and powers of prosecutorial authority
 Duties and power of the police
 The rights of suspects, arrested and accused persons
 Pre-trial procedural matters
 Bail
 Charge Sheets
 Indictments
 Pleading
 The course of criminal trial
 Trial rights and the duties of the prosecution
 Trial rights and the duties of the defence
  Verdict
 Sentencing
 Post-trial remedies
 Executive Action

Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248 CC and Others where the
constitutional court said that ‘an effective criminal justice system is… vital to our democracy’.

The law of criminal procedure aims to bring a person having been suspected of committing an offence before the
court in order for the court to determine whether that person is to be found guilty or not. Criminal procedure only
provides for broad principles that courts are to follow and courts are expected to exercise discretion.

Double Functional nature of some rules

Some criminal procedural rules serve a double function in that not only do they regulate procedure, they also serve
as a means to justify certain aspects of substantive law.

For example: The provisions of search and seizure, limit the right to privacy of an individual but for a legitimate
reason. A police officer is allowed to legally search an individual according to the laws of procedure and cannot be
charged for doing so. Instances where there is a wrongful search and seizure are different and will be dealt with
during the search and seize learning outcome 9.

In addition to the function of the criminal procedural rules, it is important to understand why we have these rules
and the values which inform them.

Striking a Balancing of values

It is important to keep in mind that whilst criminal procedure aims to ensure that the interest of society is looked
after via effective criminal law enforcement, it is also important to protect society by way of protecting rights and
freedoms of the individuals suspected of, arrested for, charged with, convicted of and sentences for crime.

The balance that criminal procedure seeks to obtain is best understood by exploring the models of criminal process
first outlined by Packer in The Limits of the Criminal Sanction (1968). Models of criminal process provide a means
to judge the actual or positive operation of the criminal justice system, and further they provide a normative guide
on what values should influence criminal law.

Both models aim to further the goals set out in the substantive law, but provide different ways to achieve this. It is
important to understand that in real-life, most systems do not conform to any single model but may incorporate
aspects of both of these models in order to obtain a balance.

The Crime Control Model

The crime control model is based on repressing criminal conduct and convicting the offender as the most important
function to be performed by criminal procedure. This model focusses on police investigation and prosecutions to
control crime. It aims to ensure that prosecutors screen out the innocent persons and ensure that they secure a
conviction of the guilty without delay.

The crime control model is based on the premise that if criminals are not detained and justice is not seen to be
done it will appear that there is a failure in the justice system. In order for the criminal control model to achieve its
purpose, efficiency is paramount to the enquiry.

The Due Process Model

Based on the principle that the primary function of the criminal justice system is to ensure that the rights of
individuals are properly acknowledged during each step of the criminal process namely: pre-trial, trial and post-
trial. In this model, securing a conviction is not merely the only goal, but rather the goal is to achieve convictions
in terms of the rules which acknowledge the rights of an individual at every stage of the criminal process. Other
factors such as the costs involved with conviction, the efficiency of the system, are all secondary factors to be
considered.

How do we strike a balance between ensuring that criminals are convicted, but also ensure that we are paying due
respect to the rights of individuals?

1. If we proceed on the premise that the criminal procedural rules will be applied to ‘criminals’ only and don’t
account for the fact that innocent people may be filtered into the system, we may end up punishing the
innocent. This is most often seen in the pre-trial stage.
2. If we proceed on the premise that the innocent tend to filter into the system, we may end up acquitting
the guilty.
3. In addition, If the state were to have too much power to police criminality, it would produce a cruel and
oppressive government rule.
4. On the flip side, if the rights of the individual were absolute, the state would be unable to enforce criminal
law.

Criminal Procedure should regulate the powers that the state holds both in a positive and negative sense. For
example, although the police have a power of arrest, the right should not be absolute and it should be somewhat
restricted in an effort to protect the rights of others within a constitutional democracy. It is important to strike a
balance between the rights of the accused and the rights of the victim.

In South Africa the criminal justice system is based on the principles of the due process model. S 35(5) of the
Constitution, provides that evidence obtained in a manner that violates any rights in the bill of rights, it is to be
excluded if the admission of the evidence would render the trial unfair or detrimental to the administration of justice.

What is important to note here is that sometimes this can be used in court and the result of which is that an accused
may be acquitted despite the fact that there is incriminating evidence against them, due to the manner in which the
evidence was collected.

In S v Naidoo 1998 (1) SACR 479 evidence was excluded by the court on the basis that it contravened s 35(5) of
the Constitution. This resulted in an acquittal of the accused for the crime of robbery, which at the time was the
biggest crime of robbery in South Africa.

This case illustrates that obtaining evidence illegally has serious consequences at trial stage.

In Tandwa 2008 (1) SACR 613 (SCA) evidence obtained by way of police brutality is not fit for receipt in civilised
proceedings. Evidence obtained by way of torture, assault, beating and other forms of coercion violate the
accused’s right to a fair trial.

The Rule of Law

Now that we have made the distinction between due process and the crime control model, it is often felt that
modern criminal procedure practices place too much emphasis on due process. The important thing to consider is
that due process does not intend to ignore the rights of the victims to pursue justice, however, it does aim to ensure
that during the administration of justice that the rights of accused persons are respected. The rights of the state to
pursue justice cannot be absolute.

There must be practical limitation on state power. As a country, South Africa has suffered a great deal due to abuse
of state power in the criminal justice system. Now that there is no longer a system of Parliamentary supremacy but
rather a system of Constitutional supremacy the Constitution has brought the state under the Rule of Law.

The Constitution has had an immense impact on South African law in general, and criminal procedure is no
different.

Constitutional Criminal Procedure

Due to the Supremacy of the Constitution, it is impossible to have legislation which conflicts with the Constitution
or the Bill of Rights. S 2 of the Constitution states that the Constitution is the Supreme law of the land.
Therefore, law that is inconsistent with its provisions will be declared invalid.

Despite the supremacy of the Constitution and the Bill of Rights, they have to be interpreted authoritatively. This
means that precedent that deals with the Constitutionality of Criminal Procedure has to be studied throughout this
course. As per the case of Zuma 1995 (2) SA 642 the Constitution is to be interpreted in line with the values it
seeks to nurture.

In terms of the Criminal Procedure provisions of the Bill of Rights, they appear to have a vertical operation. This
means that they regulate the relationship between the state and the individual and not between individuals as such.

S 8(2), however, provides for a horizontal application of the Bill of Rights. Therefore, the Bill of Rights binds both
natural persons and juristic persons and the application of the right would depend on the nature of the right and
the nature of the duty the right imposes.

The rights in Criminal Procedure are usually limiting in nature in terms of the power of the State to act. In certain
instances, there are mandatory provisions such as the right to free representation.

In the same way, the rights in the Bill of Rights place a limitation on Democracy as we are a Constitutional
Democracy. There are limits to what may be legitimised by the people and by the State.

Importantly, the not all rights under the Bill of Rights are absolute. This is due to the fact that in certain instances,
a right may need to be limited where this is necessary. S 36 of the Constitution provides for the scope of the rights
within the Bill of Rights and how they may be limited. The section states that rights may be limited ‘by law only to
the extent that such limitation is justifiable and reasonable in an open and democratic society based on human
dignity, equality and freedom, taking into account:

 The nature of the right;

 The importance of the purpose of limitation
 The nature and extent of the limitation
 The relation between the limitation and the purpose
 Less restrictive means to achieve the purpose.

Please note that the rights in the Bill of Rights do not reduce common law rights to a nullity. However, as per early
rulings on the Interim Bill of Rights have stated that the rights in the Bill of Rights should be interpreted liberally
and should not be restricted so as to try and bring them in line with common law (Zuma 1995 (2) SA 642 (CC)).

Due to the fact that the judiciary are subject to the values of the Bill of Rights, they have to be strong and impartial
and this involves sometimes going against popular opinion in order to uphold the values in the Constitution.

S 35 of the Constitution

S 35 (3) of the Constitution prescribes that accused persons have a right to a fair trial and this section requires
more than what is contained in S 35 (3) (a) – (o) as per the case of Veldman v Director of Public Prosecutions
WLD 2006 (2) SCAR 319 (CC). The right to a fair trial requires that criminal trials are conducted in accordance
with the notions of basic fairness and justice and it is the duty of the court to pay due regard to these notions.
‘35. (1) Everyone who is arrested for allegedly committing an offence has the right—
(a) to remain silent;
(b) to be informed promptly—
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used in evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day
which is not an ordinary court day;
(e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue,
or to be released; and
(f) to be released from detention if the interests of justice permit, subject to reasonable conditions.

(2) Everyone who is detained, including every sentenced prisoner, has the right—
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly; Chapter 2: Bill of Rights 15
(c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would
otherwise result, and to be informed of this right promptly;
(d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state
expense, of adequate accommodation, nutrition, reading material and medical treatment; and
(f) to communicate with, and be visited by, that person’s—
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.

(3) Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would
otherwise result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings
interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it
was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or
convicted; Chapter 2: Bill of Rights 16
(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been
changed between the time that the offence was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.

(4) Whenever this section requires information to be given to a person, that information must be given in a language that the
person understands.

(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence
would render the trial unfair or otherwise be detrimental to the administration of justice.’
Criminal courts are to ensure that criminal trials are conducted in a manner that is inline with the notions of fairness
and justice.

The Presumption of Innocence

Criminal procedure is concerned with suspects and accused persons and not with criminals. A ‘Suspect’ is a person
who has not yet been charged, an ‘accused’ refers to a person who already has been charged.

IMPORTANT: In South Africa all persons are regarded as innocent until they are properly convicted by a court
of law. Properly refers to adherence with the principles of criminal procedure and evidence.

Conviction refers to the official pronouncement that a person has been found guilty of an offence by a court of law,
and that the State has succeeded in proving the accused guilty. Despite the fact that the public may feel that
morally a person is guilty of a crime, he has to be proved to be legally guilty.
Burden of proof on the State

As per s 35(3)(h) every person has a right to be presumed innocent. This means that a person is considered
innocent until the contrary is proven and the person is convicted by a competent court.

The State has a burden to prove that an accused person is guilty beyond reasonable doubt in every criminal
case. The burden of proof differs to civil litigation which as you are all aware is on the balance or preponderance
of probabilities. This is due to the fact that as there is a presumption of innocence, the burden of proof must fall
on the State to prove otherwise. Therefore, the State has the duty to cover each element of the substantive crime
and this must be set out in the charge sheet / indictment to be proved by admissible evidence. This will assist in
establishing a prima facie case that the accused committed the crime.

NOTE: As discussed previously, the State needs to prove every element of the defence as set out in the
substantive criminal law, this means that each element has to be proved beyond reasonable doubt, if there is an
element of the defence missing the accused cannot be convicted of the defence and must be acquitted.

Doctrine of Legal Guilt: Involves treating a person as if they are innocent until they have been found guilty by a
legally competent court. This involves establishing guilt beyond a reasonable doubt through the admission of
admissible evidence and after considering all the accused rights and defences.

Factual Guilt: Factual guilt is where according the the facts, it appears that the accused is guilty of the offence.
Essentially, that it is ‘probable’ that the accused committed the offence.

Factual guilt is not enough to convict an individual.

In the case of S v V 2000 (1) SACR 453 it was held that the court cannot convict unless it is satisfied not only that
the explanation of the accused is improbable but that beyond that it is beyond reasonable doubt it is false.

In addition, it is important to note that when examining the presumption of innocence and the nature of the alleged
offence, the presumption cannot be affected by the prevalence, serious or offensiveness of the crime.

It is possible for the State to submit a prima facie case and if the accused does nothing to dispute the case, the
evidence may ‘harden’ into proof beyond reasonable doubt as there is nothing that would reasonably make the
court doubt the fact that the accused is guilty of the offence. Reasonably refers to that which is reasonable in the
circumstances and not what is speculative.

If the accused can raise any doubt by way of cross-examining state witnesses that one or more of the elements
are not proven beyond reasonable doubt he will be acquitted.

The burden of proof is higher than a civil case in that if there is a ‘possibility’ that one of the elements has not been
proved, the accused will be acquitted.

This burden of proof is applicable regardless of the nature of the offence or the severity of the offence. Judge
Sachs stated in the judgment of Coetzee 1997 (1) SACR 379 (CC) that the the presumption of innocence serves
to protect the individual at trial but also serves to ensure that the public have confidence in the legal system. The
prevalence or the severity of the crime doesn’t add anything to the determination of the onus of proof.

The right to silence

An accused person cannot be forced to testify and has a right to silence. This right is also termed the privilege
against self-incrimination or the right to a passive defence.

This right is applicable at pre-trial stage, the trial stage and at sentencing. The Constitution prescribes this right to
an accused and the accused cannot be compelled by authorities to make a confession or incriminate themselves
which may be used as evidence against them.

In the case of Zuma 1995 (2) SA 642 the court explored the previous s 217 (1) (b) (ii) of the Criminal Procedure
Act which provided that in certain instances if an accused made a confession they had to prove that the confession
was not freely and voluntarily made which in effect created a reverse onus on the accused. The Constitutional
Court declared the section unconstitutional.

The accused is a full legal subject and not merely an object of the enquiry. Therefore, the accused is entitled to
make his own decisions and to be assisted if he wishes to be by a legal representative. The accused must be able
to participate in his trial in a meaningful manner, in that he must be able to understand the process.

If the accused is represented, then his counsel will assist him in understanding throughout the process, however,
if the accused is not represented, then he will need to be informed of his rights throughout the process in times of
decision-making or option-choosing stages the accused must be informed of their rights and options and the
implications thereof.

As the accused is a full legal subject, it follows that if he is unable to participate in the process meaningfully due to
his mental capacity, he cannot be tried.

Further, as the accused has certain rights for example: the right to silence, right to call witnesses, and the right to
counsel, if the accused wishes to exercise these rights he should not be penalised for exercising these rights.
Therefore, no adverse inferences should be drawn from the fact that the accused has exercised their right to remain
silent.

What are some possible reasons an accused would choose to remain silent?

 The accused may believe that the State’s case is so weak that it does not merit a response
 The accused may not trust the legal system and may be afraid to testify
 The accused may be concerned about cross-examination from the State

It is important to note that whilst there can be no adverse inference taken by the accused’s decision not to testify
it does not follow that in practice there can be no negative effects of the accused’s decision not to testify.

If the State alleges a prima facie on each element of the offence (assumed to be true unless proven otherwise)
and the accused has not testified to provide a contrary sequence of events in order to raise reasonable doubt of
any of the elements, the accused will be found guilty of the offence. This is due to the fact that the court only has
the prima facie version put before it and as such, the prima facie version would harden into sufficient evidence to
secure a conviction.

NOTE: This happens because the accused did not do anything to disturb the State’s case, and as such the silence
of the accused has not done anything to positively affect the state’s case.

In the case of Tandwa 2008 (1) SACR 613 (SCA) the Supreme Court of Appeal stated that if an accused elects to
exercise his right of silence, this would not interrupt the ‘…. ordinary rational process.’ This means that the court
would have to consider the case on the facts that they have present before them.

Accusatorial and Inquisitorial Procedures

The most notable distinction between the accusatorial and inquisitorial procedure is the role of the parties within
the system.

Inquisitorial Procedure

In an inquisitorial system, the Judge acts as the master of proceedings, the Judge actively conducts the trial and
searches for the truth, questioning of witnesses and the accused and this is not done by counsel. The role of Judge
starts from the beginning when the accused is arrested he will be questioned by the investigating Judge and not
by the police.

This procedure is often used in modern Western European Counties.

Accusatorial Procedure

The accusatorial system the Judge is detached from the proceedings and plays the role of the adjudicator. The
Judge remains impartial as if he becomes involved he may become partial or may lose perspective on the case.

Therefore, the police are tasked as the investigators, they collect the evidence, and hand the evidence over to the
prosecution in a dossier (file) format. The prosecution will become the dominus litis, the Master of the Suit. This is
because the will decide on what charges to file against the accused, the appropriate court to institute the
proceedings in.

During court proceedings the trial takes the form of a contest between the prosecution and the defence, who will
do the questioning, leading of witnesses and cross-examining opposition’s witnesses. The accusatorial system
relies heavily on both the prosecution and the defence to do their job correctly.

Can you guess which system South African has been following?

South Africa has been accusatorial, however, what does differ is that a Judge does have the ability to call a witness
as per s 186 of the Criminal Procedure Act. The court is to establish the views of the prosecution and defence
before calling the witness. This element of criminal procedure is inquisitorial in nature.

The Western European system in the modern day is due process inquisitorial system. This is especially prevalent
in Germany.

It must be noted that not all accusatorial systems are due process systems. South Africa is a prime example of this
as previously, it was possible for a person to be detain without access to a lawyer or to courts and illegally obtained
evidence was admissible. As I am sure you have all picked up, the modern day South African system has shifted
to the due process model due to the Constitutional model that we have adopted.

Dictation for Students

The Accusatory and inquisitorial systems are different in the way they seek to achieve rapid and fair criminal trials.
The main distinction between the two systems is the role that the Judge and other parties take within the process.

In the accusatorial system, the police are tasked as the investigators, they collect the evidence, and hand the
evidence over to the prosecution in a dossier (file) format.

The Judge acts as an impartial decision-maker whose task is to regulate the contest that occurs between the
prosecution and the defence. The prosecutor becomes the dominus litis (the Master of the Suit). The Judge is to
ensure that the laws of criminal procedure are followed throughout the trial process and must be impartial in the
process. The Judge will decide in favour of either the prosecution or the defence.

Whereas the inquisitorial system assumes that the truth may be discovered through investigative process. The
Judge is the Master of proceedings and identifies relevant witnesses, and summons, questions and screens them.
The judge may ask questions to supplement the questioning lead by advocates. Therefore, the Judge acts as
investigating Judge from the moment the accused is arrested.

South Africa adheres to an accusatorial system, however, what does differ materially in our system from that of
ordinary accusatorial systems, is that a Judge does have the ability to call witnesses of his own in some instances
in terms of s 186 of the Criminal Procedure Act.