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Criminal Procedure Notes - prescribed text

Criminal Procedure (University of the Witwatersrand, Johannesburg)

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CRIMINAL PROCEDURE
PRE-TRIAL

CHAPTER 1 INTRODUCTION

THE PLACE, SOURCES AND PHASES OF CRIMINAL

PROCEDURAL LAW

Define criminal procedure and indicate its place?

Criminal procedure is a branch of procedural law containing rules concerning how

to punish people who contravene the norms of criminal law. It is the procedure to be
followed in punishing criminals. Criminal procedure regulates:
• the workings of the entire prosecutorial machinery – the courts’ structure,
• the structure of prosecution, the position of suspects or accused persons,
• police powers,
• pre-trial procedure, detention, bail, charge sheets/indictments, pleading,
• the trial, verdict, sentencing,
• post-trial remedies (such as appeal and review), and
• executive action (ie mercy, indemnification and free pardon).

The law of evidence is very closely connected with criminal procedure; it regulates the
manner in which relevant issues may be proved in court.

Has the Constitution had a significant effect on criminal procedure?

• The Constitution Act 108 of 1996 has fundamentally changed the legal order in SA;
• The Constitution is supreme, all acts of parliament are subject to it;
• The Constitutional Court is the highest court in the land;
• Acts of parliament which clash with the Constitution (Bill of Rights) may be
challenged in court;
• Criminal procedural rules must be consistent with the Bill of Rights or they will be
declared invalid.

What is meant by the double-functional nature of criminal procedure?

Many rules of criminal procedure are double-functional in the sense that apart
from regulating procedure, they also operate as grounds of justification in
substantive law, ie substantive criminal as well as civil law.

For example; when a police officer lawfully/legally searches, or arrests a suspect,

the act of lawful searching, or arrest, is both a regular procedural action and a
lawful limitation of the suspect’s right to privacy, or dignity and freedom. In
terms of substantive law the suspect cannot charge the peace officer with an
offence or sue him in a delictual matter.
However; if the search, or arrest, was illegal (i.e. it was not permitted by the law of
criminal procedure), then, in terms of criminal procedure and the consequences of
procedural actions, the procedural/evidential consequences of the action will be that
the evidence thus obtained will not be admissible (i.e illegally obtained

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evidence); the substantive consequences may be a criminal charge, and/or an

action for damages against the police officer.

Also grounds of justification in substantive law may also be double-functional and may
be used to great effect in criminal procedure. If a peace officer may lawfully arrest a
suspect and the latter attacks the officer, the officer may rely on the criminal law
ground of justification called self-defence and defend himself. While self-defence as
such is primarily a ground of justification in substantive criminal and civil law (meaning
that action which would otherwise be unlawful is rendered lawful in the
circumstances), it here also empowers the officer to act in a criminal procedural
sense.

Is Criminal Procedure a system?

Criminal procedure should be viewed as a system, namely a step-by-step process

which moves along according to set legal rules. The various stages in the process
have their own characteristics. Later stages are also to a large extent dependent upon
earlier stages. If, for instance, poor quality work done by the police in the investigatory
phase (e.g. a coerced confession) is fed into the trial phase by the prosecution, it may
contaminate the trial and even, if it is not excluded at the trial, have repercussions at
the appeal or review stage, leading to the eventual acquittal of the accused. Pre-trial
criminal procedure is accordingly just as important as trial procedure.

The various phases of the criminal process are dependent on each other:

The INVESTIGATION/PRE-TRIAL STAGE

leads on to the TRIAL STAGE

leads on to the SENTENCING STAGE

leads to the APPEAL/REVIEW STAGE.

What are the differences between a civil case and a criminal case?

Civil Law Criminal Law

i) Private law Public law

ii) Pleadings Charge sheet
iii) Plaintiff Accused
iv) Damages Imprisonment

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BASIC PRINCIPLES

MODELS OF CLASSIFICATION

1. Accusatory and Inquisitorial Models

The differences between these two models is to be found in the functions of the judge,
prosecution and the defence.

Inquisitorial model:
i) The judge (dominus litis) actively conducts and controls the questioning of
witnesses and the accused.
ii) The questioning of the arrested accused at the pre-trial stage is conducted by an
investigating judge (in conjunction with the police).
iii) At trial the presiding judge does most of the questioning, not the prosecution or
the defence, who are sidelined.
iv) All relevant evidence is admissible and there is no cross-examination.

Accusatorial model:
i) The judge is neutral (a detached umpire), objective and impartial.
ii) At the pre-trial stage the police do all the investigatory questioning.
iii) The prosecution is dominus litis, by deciding on the charge and the appropriate
court.
iv) At trial, the contest is a debate between two equal parties, the state and the
defence, involving examination-in-chief and cross-examination.
v) Some kinds of relevant evidence are excluded from trial by artificial exclusionary
rules and privileges.

2. Due process and crime control models

Due process model (usually found in an accusatorial system):

i) The suspect is a full legal subject with rights (dignity, privacy) and powers
(access to legal advice, right to silence, etc).
ii) The suspect has complete procedural power whereas the state powers are limited
by law and the constitution.
iii) The most important and unlimited power for the suspect is the presumption of
innocence which places a burden of proof on the state.

Criminal control model (usually but not always an inquisitorial system):

i) Crime control is exactly the opposite of due process, the state has absolute and
unlimited power to prosecute, whereas the suspect has limited procedural rights.
ii) The suspect is not a full legal subject, is a mere object of inquiry, and the state is
all powerful.
iii) In an extreme crime control model, there is a presumption of guilty and torture,
involuntary confessions, prolonged detention is allowed.

Note: No real-life legal system conforms to the above theoretical distinctions, for
example, South Africa is an accusatorial (due process) system with certain
inquisitorial elements. For example the Child Justice Act includes many
inquisitorial elements – the preliminary inquiry, and bail applications. In the Criminal
Procedure Act a bail application hearing is also inquisitorial in procedure

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3. Balance of Interests

Two social interests need to be balanced

One of the great dilemmas of our criminal procedure law is how to balance two social
interests that tend to be mutually exclusive, namely;
• society’s interest in individual freedom on the one hand, and
• society’s interest in the effective control of crime

Rights and powers

An accused person has rights; but also has duties, for example the duty to submit to
lawful arrest. The content of a right of an accused is in inverse proportion to a
power of the state;
• the greater or stronger the state power (ie the power to search), the smaller or
weaker the accused’s rights (ie right to privacy). If the state were to have
absolute powers, it would probably be able to curb criminality to a very large
extent, but we would be living under a tyranny and we would have no rights; we
would be objects, not legal subjects.
• If the individual’s rights, on the other hand, were absolute, the state would be
powerless and unable to cope with crime or operate a criminal justice
system.
• One of the tasks of the law of criminal procedure is to devise a balance between
powers and rights which makes life bearable and acceptable to citizens and
which nevertheless can control crime at a tolerable level

A reasonable balance of interests

A reasonable balance must be found between two competing community

interests, viz the community’s interest in crime control and the community’s interest
in fair treatment of its members.

The rules of criminal procedure and the relevant constitutional provisions must
give enough powers to the police so that they can operate with an acceptable
measure of efficiency. (Crime control and prevention depends more on effective
policing than on severe punishment). This dilemma of constitutional law and the law of
criminal procedure accordingly requires compromises:

‘It is to the public good that the police should be strong and effective in preserving law
and order and preventing crime; but it is equally to the public good that police power
should be controlled and confined so as not to interfere arbitrarily with personal
freedom’.

Example

We shall give an illustration of how a balance is struck. It should be realised that the
converse of a police power is a duty on the part of the citizen to submit; the
exercise of the power diminishes or shrinks the citizen’s rights, albeit often only
temporarily. If a peace officer has reasonable grounds for searching a suspect and
on the suspect’s premises finds the relevant objects and seizes them (and all the
other legal requirements for a lawful search and seizure are complied with), the
suspect will not be able to sue the officer or the state if it later turns out that the seized
objects were not stolen property and that the suspect is innocent. When the exercise
of police powers is reasonable and lawful, the innocent citizen’s property rights and
right to privacy diminish in inverse proportion to the police powers and the citizen

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simply has to submit to, or tolerate, the state action. Thus it is possible for an innocent
person to be arrested, searched, fingerprinted and lined up for an identification parade
quite lawfully; if the criminal procedural requirements have been met, he has a duty to
submit. If, on the other hand, the police acted unlawfully by going beyond the
provisions of law or by not complying therewith, the suspect has a whole variety of
remedies, such as resistance, suing for damages, obtaining an interdict, instituting the
rei vindicatio to get his property back, laying criminal charges against the police, as
well as other possibilities.

THE CONSTITUTION AND CONSTITUTIONALISM

In terms of the Constitution (Act 108 of 1996) the Constitution and the Bill of Rights
(contained in chapter 2 of the Constitution) create a Higher Law. Parliamentary laws
(i.e. such as the Criminal Procedure Act & Child Justice Act) are subject to
scrutiny and challenge in the Superior Courts.

The Constitution and the Bill of Right must be interpreted authoritatively – this
is called the principle of justiciability. Zuma 1995 (4) BCLR 401 (SA) emphasises
that the Constitution is to be interpreted so as to give clear expression to the values it
seeks to nurture.

Constitutionalism

Constitutionalism consists of a number of foundational principles of which the most

important are the “rule of law” and the legality principle required by a constitutional
state to function effectively. Other important principles include the presumption of
innocence, right to silence, right to legal representation and juridical guilt.
Constitutionalism has the following consequences for a constitutional state:
• It is not important to secure a verdict of guilty at any cost and by any means
whatsoever,
• The principle of reasonableness as explained above (and further in the notes
below) requires that a reasonable balance be found between the procedural rights
of the accused and the state’s interest in security and preservation of law and
order.(S. 36 limitation clause – we can limit a right so long as it is reasonable in an
open and democratic society – therefore we can arrest, IF reasonable suspicion)
• It is important that the rules of evidence and criminal procedure law be complied
with according to the entrenched rights in the Constitution.
• It also means that the burden of proof generally falls on the state to prove the guilt
of the accused beyond reasonable doubt (see section 35)

TWO FUNDAMENTAL RIGHTS (in the constitution):

(1) Presumption of innocence (a fundamental right in sec 35(3)(b) of the

Constitution)

• Due to the presumption of innocence, every person is regarded as innocent

until proven guilty and convicted by a court of law, through compliance with the
rules of evidence and criminal procedure.
• A conviction is an objective and impartial official pronouncement that a
person has been proved legally guilty by the state (prosecution) in a properly
conducted trial, in accordance with the principle of legality, i.e. in a trial where
the state obeys the rules of criminal law, criminal procedure, evidence, and the
Constitution. (No crime without a law – no punishment without a law)

The presumption of innocence consists of four basic elements:

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(a) Juridical guilt

The purpose of criminal procedure is to find the truth, in order to convict the
guilty and release the innocent. However a distinction should be drawn between
factual truth, moral truth, absolute truth and legal (juridical) truth. Legal truth is
sometimes different from factual truth, i.e. you may know factually that the accused is
guilty of a crime but do not have enough evidence to establish truth beyond a
reasonable double (juridical truth). The presumption of innocence requires that
juridical quit be proved beyond a reasonable doubt.

(b) Beyond a reasonable doubt/burden of proof

• In order to obtain a conviction, the prosecution must prove the accused’s guilt
beyond a reasonable doubt.
• The onus or burden of proof rests on the prosecution because of the above-
mentioned presumption of innocence regarding the accused. This means that
an accused person does not have to prove that he is innocent.
• The prosecution must prove every element of a crime by presenting concrete and
admissible evidence in order to establish prima facie that the accused is guilty

(c) Onus and presumption of law

The presumption of innocence has a profound impact on the validity of presumptions

in the law of evidence (which, of course, is closely related to the law of criminal
procedure) which purport to shift the burden of proof (onus) to the accused. For
instance, in Zuma 1995 (1) SACR 568 (CC), Bhulwana 1995 (12) BCLR 1579 (CC),
Mbatha 1996 (3) BCLR 293 (CC), and Scagell v Attorney-General of the Western
Cape 1996 (1) BCLR 1446 (CC) statutory presumptions which shift the onus from
the state to the accused (creating a reverse onus) were struck down by the
Constitutional Court since they infringed the right to be presumed innocent until the
state proves guilt above reasonable doubt.

(d) The ethics of defending the guilty

The accused is by law presumed innocent and therefore is by reason of the principle
of legality and due process entitled to legal representation. The onus of proof rests
on the prosecution and function of the defence lawyer is to check and
challenge the prosecution’s performance.

(2) Right to silence/Privilege against self-incrimination (s35(1)(a))

• Related to the presumption of innocence is the rule that an accused can never
be forced to testify; he has a right to silence, which is also called his
privilege against self-incrimination or his right to a passive defence.
• This applies to the pre-trial stage (ie the investigative or police phase, as well as
the pleading phase), the trial phase and also the sentencing stage – Dzukuda
2000 (2) SACR 443 (CC).
• Accordingly, the Constitution guarantees the right of every arrestee to:
Ø remain silent (s35(1)(a))
Ø and not to be compelled to make a confession or admission which could
be used in evidence against him or her (s35(1)(c)),
Ø as well as the right of every accused to remain silent and not to testify
during proceedings (s35(3)(h) and (j)).

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The interrelatedness of the presumption of innocence and the right to silence is

apparent in section 35(3)(h) and was explored in S v Zuma 1995 (4) BCLR 401
(SA), which declared unconstitutional the principle of a reverse onus. The
presumption of innocence is the basis for the rule that the onus in criminal cases
should always rest on the state.

A person who exercises his right to silence at his trial should accordingly not be
penalised for the exercise of the right and;
• no evidentiary inference should be drawn against his decision not to testify, for
several reasons:
• first, no such inference can be drawn, for there may be a multitude of reasons
why he does not wish to testify (he may think the State case is so weak that it
does not merit an answer; he may not trust the court or legal system, or be afraid
or ignorant as to legal strategy.
• Secondly, no logical inference can be drawn from silence.
• Thirdly, this does not mean that silence at trial cannot be damaging to the accused,
i.e. if the accused through his/her silence fails to rebut a prima facie case
produced by the prosecution, the likelihood of a guilty conviction becomes
stronger.

(3) Other procedural rights

Most of the additional rights of accused persons flow from the following fundamental
procedural rights:
• the presumption of innocence;
• including the right to silence/privilege against self-incrimination and the status
of the accused as legal subject;
• coupled with the notion of legality (ie that the state is not absolute, but is limited
or ruled by law).

Flowing from the presumption of innocence – right to silence – principle of legality are
the following additional constitutionally defined procedures set out in s 35 of the
Constitution:
• THE RIGHT TO LEGAL REPRESENTATION (see further below- chapter 4)
• the right of the accused to be informed of these rights and about the reasons
for restrictions of his rights (eg the reasons for arrest, or the contents of a search
warrant);
• the right to pre-trial release (bail, etc);
• the right to contact family, friends and counsel upon arrest;
• the right to a specified place of detention (the accused must be locatable in
order to effectively exercise his other rights);
• the right to silence at the interrogation;
• the right to an interpreter;
• the right to obtain a copy of a search or arrest warrant;
• the right to be brought speedily before a judicial officer – first appearance
• the right to be fully informed of the charges;
• the right to have any pre-trial procedure (ie arrest, search, bail) conducted upon
principles of reasonableness

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CONSTITUTIONAL REMEDIES (for the infringement of procedural rights)

The principle of legality states that in the interest of society, the police should act
lawfully and that a meaningful control should be exercised over the actions of the
state. The conduct and actions of law enforcement officials must conform to the
general requirements of the common, statutory and constitutional law.

The principle of legality requires judicial supervision and control over the activities of
law enforcement officials and a strong independent judiciary is a guarantee for the
maintenance of individual rights. A strong, independent judiciary also allows for
access to legal remedies.

Remedies for the infringement of fundamental procedural rights are:

• A writ of habeaus corpus. To prevent unlawful detention an order may be

obtained forcing the state to produce the person (body) of the detainee before the
court at a certain date and time.
• A civil action for damages. Delictual claim for damages in respect to wrongful
arrest and detention.
• A possible criminal charge - against the police officer who acted unlawfully.
• Interdict. To prevent the state from acting in a harmful manner towards the
suspect or detainee.
• Mandamus. A positive order forcing the state to perform its duty towards the
suspect or detainee.
• The exclusion from trial of illegally obtained evidence. A constitutional rule
which prevents the state from introducing at trial any evidence which was obtained
in an illegal manner by the police, ie involuntary confession, illegal pointing out, etc.
• Informal remedies.
• Constitutional remedies. S9 and s38 are mechanisms which promote the
maintenance of human rights against state infringing actions.

TWO REGIMES OF CRIMINAL PROCEDURE IN SOUTH AFRICA

• THE CRIMINAL PROCEDURE ACT FOR ADULT ACCUSED

• THE CHILD JUSTICE ACT 75 OF 2008 FOR THE CHILD ACCUSED

THE CHILD JUSTICE ACT 75 OF 2008

The CJA works parallel with the CPA. The legal professional must have a good
knowledge of both Acts whenever there is a child involved in the criminal
justice system.

GENERAL PRINCIPLE

• Establish a criminal justice system for minors,

• for the purpose of diverting matters involving minors who have
committed offences away from the criminal justice system,
• in appropriate circumstances,
• a definite role for victim’s (victim impact statement –s70) and family in
process of restorative justice
• while children, whose matters are not diverted, are to be dealt with in the
criminal justice system by child justice courts (juvenile courts);

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PURPOSE OF ACT (SEC 1)

1) Expand and entrench the principles of restorative justice in the criminal

justice system for children who are in conflict with the law, while ensuring
their responsibility and accountability for crimes committed;

2) Recognize the present realities of crime in the country and the need to be
proactive in crime prevention by placing increased emphasis on the
effective rehabilitation and reintegration of children in order to minimize
the potential for re-offending;

3) Balance the interests of children and those of society, with due regard to
the rights of victims.

4) Create incrementally, where appropriate, special mechanisms, processes

or procedures for children in conflict with the law by;
• raising the minimum age of criminal capacity for children;
• ensuring that the individual needs and circumstances of children in
conflict with the law are assessed;
• providing for special processes or procedures for securing
attendance at court of, the release or detention and placement of,
children;
• creating an informal, inquisitorial, pre-trial procedure, designed to
facilitate the disposal of cases in the best interests of children by allowing
for the diversion of matters involving children away from formal
criminal proceedings in appropriate cases;
• providing for the adjudication of matters involving children which are
not diverted in child justice courts; and
• providing for a wide range of appropriate sentencing options
specifically suited to the needs of children

See pg 1 of the CJA summary

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CHAPTER 2: THE HIERACHY OF CRIMINAL COURTS

INTRODUCTION

The ranking of criminal courts can be represented as a pyramid with three levels. The
bottom level is that of the lower courts. As the name indicates, they are lower in
stature, jurisdiction and powers than the High Courts on the middle level, while the
Supreme Court of Appeal and the Constitutional Court at the top of the pyramid are
invested with the highest authority.

The judicial authority of the Republic is vested in the courts (s165(1) of the
Constitution of the Republic of South Africa Act 108 of 1996). The courts are
independent and subject only to the Constitution and the law, which they must apply
impartially and without fear, favour or prejudice (s165(2) of the Constitution).

1. THE CONSTITUTIONAL COURT

The Constitutional Court (with its seat in Johannesburg) consists of a Chief Justice,
deputy Chief Justice and nine other judges (s167(1) of the Constitution). A matter
before the Constitutional Court must be heard by at least eight judges –s167(2). This
court is the highest court in all matters. It may decide all matters (and issues
connected with decisions on constitutional matters) and makes the final decision–
s167(3). Usually a court of appeal, but direct access can be requested. (EFF Nkandla
– pay back the money)

(NOTE – the Constitution Seventeenth Amendment Act of 2012 which makes the
Constitutional Court the apex court in SA which can hear any matter – on
appeal) – except if direct access granted ala EFF.

A constitutional matter includes any issue involving the interpretation, protection or

enforcement of the Constitution - s167(7). In terms of s167(4) only the Constitutional
Court may decide on –

• Disputes between organs of state in the national or provincial sphere concerning

the constitutional status, powers or functions of any of those organs of state;
• The constitutionality of any parliamentary or provincial Bill;
• The constitutionality of any amendment to the Constitution; or
• The question as to whether Parliament or the President has failed to fulfil a
constitutional obligation. Cf EFF and DA case Nkandla money.

The Constitutional Court makes the final decision whether an Act of Parliament, a
provincial Act or the conduct of the President is constitutional. It must confirm any
order of invalidity made by the Supreme Court of Appeal, a High Court or a court of
similar status, before that order has any force – s167(5).

2. THE SUPERIOR COURTS

a) The Supreme Court of Appeal

The Supreme Court of Appeal (with its seat in Bloemfontein – s4(1), Supreme Court
Act 59 of 1959) may decide appeals in any matter. It is the court of appeal from the
High Courts (in which respect the Constitutional Court is the highest court). Initially it
was possible to appeal from the Appellate Division (as the Supreme Court of Appeal
was known until 1996) to the British Privy Council, but from 1950 this was no longer
possible. In terms of s12(1) of the Supreme Court Act a quorum of the Supreme Court
of Appeal ordinarily consists of five judges for all criminal matters. In practice, three
judges of appeal usually hear a criminal appeal. (cf Oscar Pistorius appeal to SCA)

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b) The High Court

The High Court (the previous label “Supreme Court” has been replaced with the label
“High Court”) was created by the South Africa Act of 1909. In terms of the South
Africa Act, the Supreme Courts of the four colonies constituting the Union of South
Africa retained their former jurisdiction. This court structure was preserved by the
Supreme Court Act, which replaced the relevant sections of the South Africa Act. In
terms of the Supreme Court Act, there were six provincial divisions of the Supreme
Court, three of which had local divisions attached to them. These provincial and local
divisions, as well as the four courts which were established at Supreme Court level in
the former TBVC states, have become High Courts in terms of section 166 of the
Constitution. Although it is more correct to refer to them as separate and distinct High
Courts, they are, for convenience, referred to simply as the various “divisions” of the
High Court.
The Superior Courts Act of 2013 has established a single high court divided
between main and local divisions. (All references to Supreme Court Act should
be replaced by Superior Courts Act, 2013)
The High Court seated in the places mentioned in the first column of the table
hereunder are known by the names set out in the second column. The third column
indicates the current abbreviations (with the former abbreviations in brackets) of these
courts, and the fourth column indicates which are provincial and which local divisions:

Seat of Name of High Court Abbreviation Main and Local

High Court
Bloemfontein Free State High Court, Bloemfontein FB (O) Main
Cape Town Western Cape High Court, Cape Town WCC (C) Main
Pietermaritzburg KwaZulu-Natal High Court, KZP (N) Main
Pietermaritzburg
Durban KwaZulu-Natal High Court, Durban KZD (D) Local
Pretoria Gauteng Provincial Division, Pretoria GNP (T) Main
Johannesburg Gauteng Local Division, GSJ (W) Local
Johannesburg
Kimberley Northern Cape High Court, Kimberley NCK (NC) Main
Grahamstown Eastern Cape High Court, ECG (E) Main
Grahamstown
Port Elizabeth Eastern Cape High Court, Port ECP (SE) Local
Elizabeth
Bhisho Eastern Cape High Court, Bhisho ECB (Ck) Local
Mthatha Eastern Cape High Court, Mthatha ECM (Tk) Local
Mafiheng North West High Court, Mafiheng NWM (B) Main
Thohoyandou Limpopo High Court, Thohoyandou LT (V) Local

The courts listed above still reflect to some extent the political dispensation existing in South
Africa prior to April 1994. Item 16(6) of Schedule 6 to the Constitution provides that as soon as
it is practical the structure, composition and functioning of all courts should be
rationalised with a view to establishing a judicial system suited to the requirements of
the Constitution
The High Court is both a court of first instance (court a quo), which means that
a matter can be commenced in the High Court, but it also operates as a court of
appeal for the Magistrate’s Court within its area of jurisdiction. Two judges will usually
form the quorum for an appeal from a Magistrate’s Court. All the High Courts, except
the Local Divisions in Durban and the Eastern Cape, also operate as courts of appeal
in respect of decisions made by a single judge of the High Court. When a decision
made by a single High Court judge is appealed, it will either go to a three-judge bench
(full bench) of the same High Court or to the Supreme Court of Appeal. Appeals are
generally directed to the Supreme Court of Appeal when a matter of law is in issue
and to a full bench when issues of fact must be decided.

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3. LOWER COURTS

Magistrates’ Courts and Regional Courts

In terms of s1 of the Criminal Procedure Act ‘lower court’ means any court established
under the provisions of the Magistrates’ Courts Act 32 of 1944. The courts so
established are the magistrates’ courts with ordinary jurisdiction and the regional
courts – s2 of the Magistrates’ Court Act. In s2(1)(j) of the Magistrates’ Courts Act
provision is also made for the institution of periodical courts.

The magistrate’s court is instituted for a district (we shall for the sake of brevity, refer
to it as the district court) and a court for a regional division (to which we shall refer
simply as the regional court) was instituted in terms of s2 of the Magistrates’ Court
Act.

Periodical courts are magistrates’ courts which sit at regular intervals at places other
than the seats of fixed permanent district courts. Periodical courts perform the same
function in large and sparsely populated areas as circuit courts in the case of the High
Court. The jurisdiction of a periodical court is exactly the same as that of a district
court, except that there are certain limitations as regards its territorial jurisdiction.
However, no person shall, without his consent, be liable to appear as an accused
before any periodical court unless he resides nearer to the place where the periodical
court is held than to the seat of the magistracy of the district – s91(1)(b) of the
Magistrates’ Court Act.

3. Child justice courts

A juvenile is a minor under the age of 18 years. Minors accused of crimes are tried in
the ordinary criminal Magistrate's Courts but in many areas of South Africa special
Magistrate's Courts are set aside as child justice courts (i.e. Juvenile Courts).
These courts are not open to the public (called in camera) and if possible the parents
or other legal guardians must be present.

In certain circumstances a child justice court may refer a minor to a Children's Court.
This will happen if the court thinks that the child's parents or guardian may be unfit or
unable to look after the child, or if there are no parents or guardian. If the Children's
Court decides that the parents are fit and able to look after the child, then the case is
referred back to the criminal court and the trial will continue. If the Children's Court
finds that there are no parents or guardian, or that the parents or guardian are not fit
or able to look after the child properly, then the court may order that the child be
removed to a 'place of safety'. If the child is transferred from the criminal (juvenile)
court to the Children’s Court, the criminal trial must wait until the Children’s Court
comes to a decision

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JURISDICTION – is three fold-consists of appeal, offence(( +TERRITORY

where an OFFENCE committed), and sentencing
jurisdiction.

a) APPELLATE JURISDICTION

i) The Supreme Court of Appeal

The Supreme Court of Appeal has the authority by law to hear an appeal
against any judgment of a high court and to decide on such appeal – s16 , Act
10 OF 2013 and s315, Act 51 of 1977. This means that the Supreme Court of Appeal
has jurisdiction to hear and determine an appeal from any decision of a high court (ie
a provincial or local division) –. Persons who have been found guilty by a superior
court may not automatically appeal to the Supreme Court of Appeal. The general
principle is that leave has first to be sought from the High Court before an appeal can
be made to the Supreme Court of Appeal.

In addition to the jurisdiction just discussed, the Supreme Court of Appeal also has
certain powers in terms of s333, Act 51 of 1977. This section lays down that
whenever the Minister of Justice has any doubt as to the correctness of any decision
given by any high court in any criminal case on a question of law, or whenever a
decision in any criminal case on a question of law is given by any division of the High
Court which is in conflict with a decision in any criminal case on a question of law
given by any other division of the High Court, he may submit that decision or, as the
case may be, such conflicting decisions to the Supreme Court of Appeal and cause
the matter to be argued before it, in order that it may determine the said question for
the future guidance of all courts. (E.g In re Van Wyk – killing is defence of property)

ii) Provincial divisions of the High Court

The provincial divisions have appeal and review jurisdiction in respect of

criminal proceedings emanating from lower courts. Furthermore the provincial
divisions, when sitting as a ‘full court’ (ie two or three judges), have appellate
jurisdiction to hear an appeal in a criminal case decided by a single judge if the
questions of law and of fact and other considerations involved in the appeal are of
such a nature that the appeal does not require the attention of the Supreme Court of
Appeal.

iii) Local divisions of the High Court

The GAUTENG LOCAL DIVISION (previously the WLD, South Gauteng High Court)
has exactly the same appellate jurisdiction as a provincial division. All other local
divisions have no appellate jurisdiction.

b) JURISDICTION IN RESPECT OF OFFENCES (s 89-105 CPA)

i) The Supreme Court of Appeal

The Supreme Court of Appeal may act as a court of appeal only, except in cases of
contempt in facie curiae.

ii) Provincial and local divisions of the High Court

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Provincial and local divisions have original jurisdiction in respect of all offences.
They have no limits regarding sentence and can assume jurisdiction from anywhere in
South Africa but for practical purposes tend to only hear those within their provincial
jurisdiction.

iii) District court

A district MAGISTRATE’S court has jurisdiction to TRY ALL CRIMES EXCEPT

TREASON, MURDER AND RAPE. A district court can only assume jurisdiction within
the local magistrates’ jurisdiction –i.e. within the geographical boundaries of a local
city or town.

iv) Regional court

A regional court may TRY ALL CRIMES EXCEPT TREASON – see s89, Act 32 of
1944. A regional court may thus try murder and rape. Their geographic jurisdiction is
limited to the province in which they are situated.

c. JURISDICTION IN RESPECT OF OFFENCES COMMITTED ON SOUTH

AFRICAN TERRITORY

i) The Supreme Court of Appeal

The Supreme Court of Appeal has jurisdiction to hear an appeal against any
judgment of a high court in South Africa and to decide on such appeal – s16, Act 10
OF 2013 and s315, Act 51 of 1977.

ii) Provincial Divisions of the High Court

The provincial divisions have original jurisdiction in respect of all offences committed
within their respective geographical areas as defined in the Superior Courts Act 10 of
2013. The Cape Provincial Division does not have concurrent jurisdiction in the areas
of the Eastern and Northern Cape Divisions.

The rule that provincial divisions exercise jurisdiction in respect of offences committed
within their respective areas has been extended in the following respects:

a) In Hull 1948 (4) SA 239 (C), it was held that a division of the High Court has
jurisdiction to put into effect a suspended sentence imposed by another division or
magistrate’s court.
b) The legislature sometimes enacts that in respect of specific offences, such offence
shall for the purposes of jurisdiction be deemed to have been committed in any
place where the accused happens to be. An example is found in s4 of the Civil
Aviation Act 10 of 1972. Terrorism legislation (
c) In Fairfield 1920 CPD 279, it was held that if an Act creates an offence and
confers jurisdiction merely on a lower court in respect of such offence, the
jurisdiction of a high court is not ousted in respect of the offence (unless, of
course, there is an express provision in the Act to this effect).
d) Section 111 of the Criminal Procedure Act empowers the national director of
public prosecutions to order a trial in a court within the area of a director of public
prosecutions although the offence was committed within the area of another
director. This section is clearly applicable to lower as well as to high courts (ie
where it is deemed to be in the interest of justice).

iii) Local divisions of the High Court

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The area of jurisdiction of each of the local divisions includes a number of magisterial
districts – ss 2 and 6 and the First Schedule to Act 59 of 1959. In the areas of
jurisdiction of local divisions, the provincial divisions have concurrent jurisdiction. The
result is that a prosecution for an offence committed in an area falling under the
jurisdiction of a local division, may be instituted in either the provincial division or in
that local division.

The Judge-President of a provincial division may, by way of notices published in the

Government, divide the area of jurisdiction of that provincial division into circuit
districts. Circuit courts (also known as circuit local divisions) must sit at least twice
yearly – s7 of Act 59 of 1959.

iv) Regional courts and district courts

Here we must distinguish between a summary trial and a preparatory examination.

In a summary trial the accused is charged in the magistrate’s court and this
court itself decides whether he is guilty or not guilty. In the case of a preparatory
examination, there is a hearing in which the accused is not tried; the magistrate does
not judge whether he is guilty or not guilty, but only hears the evidence which is then
sent to the director of public prosecutions who will decide whether to institute a
prosecution or not, and in which court.

SUMMARY TRIALS (Magistrate Court)

PRINCIPLE OF TERRITORIALITY

Section 90 of the Magistrates’ Court Act sets down that a district court and a
regional court have jurisdiction to hear trials of persons who are charged with
an offence committed within the district or within the regional division
(consisting of a number of districts) respectively. This principle has been extended by
the further provisions of s90 as follows:

When any person is charged with an offence –

a) committed within the distance of four kilometres (formerly two miles) beyond
the boundary of the district, or of the regional division (the 4 km rule does not
apply to High Courts, only Magistrates Courts);
b) committed in or upon any vessel or vehicle on a voyage or journey, any part
whereof was performed within a distance of four kilometres from the boundary
of the district or the regional division;
c) committed on board any vessel on a journey upon any river within the Republic
(or forming the boundary of any part thereof) and such journey or part thereof
was performed in the district or regional division or within four kilometres of it;
d) committed on board any vessel on a voyage within the territorial waters of the
Republic, and the said territorial waters adjoining the district or regional division;
or
e) begun or completed within the district or within the regional division, such
person may be tried by the court of the district or of the regional division as the
case may be, as if he had been charged with an offence committed within the
district or within the regional division respectively.

With regard to the four kilometres rule, a person may be tried in a particular area for
an offence committed in another province but within four kilometres beyond the
boundary of the particular area if it is an offence under the common law (implicit in the
decision in Baba JS 376/33 (G)) and probably also if it is an offence in terms of
statutory law operative in both provinces concerned.

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1. Where it is uncertain in which of several jurisdictions an offence has been

committed, it may be tried in any of such jurisdictions.
2. A person charged with an offence may be tried by the court of any district or any
regional division, as the case may be, wherein any act, omission or event which is
an element of the offence is committed.
3. A person charged with theft of property or of obtaining property by an offence, or
of an offence which involves the receiving of any property by him, may also be
tried by the court of any district or regional division, as the case may be, wherein
he has or had part of the property in his possession.(Continuing Offence)
4. A person charged with kidnapping, child-stealing or abduction may also be tried
by the court of any district or of any regional division as the case may be, through
or in which he conveyed or concealed or detained the person kidnapped,
stolen or abducted.
5. Where by any special statutory provision a magistrate’s court has jurisdiction in
respect of an offence committed beyond the local limits of the district (or of the
regional division, as the case may be) such court is not deprived of such
jurisdiction by any of the provisions of s90 of the Magistrates’ Courts Act.
6. Where an accused is alleged to have committed various offences within different
districts within the area of jurisdiction of any director of public prosecutions, the
latter may in writing direct that criminal proceedings be commenced in a
magistrate’s court within his area of jurisdiction as if such offence has been
committed within the area of jurisdiction of such court. A regional court within
whose area of jurisdiction such magistrate’s court is situated, shall likewise have
jurisdiction in respect of such offence if the offence may be tried by a regional
court – s90(8), Act 32 of 1944.
7. In one instance the accused may even, upon a written order of the director of
public prosecutions, be charged in the court of any district or regional division of
the province or area for which that director holds office. This may happen when
the director of public prosecutions deems it expedient owing to the number of
accused involved in any criminal proceedings or with a view to avoiding excessive
inconvenience or the disturbance of the public order – s90(9), Act 32 of 1944.
8. In terms of the provisions of s110(1) of the Criminal Procedure Act, if a person is,
as far as territorial jurisdiction is concerned, wrongly charged before a particular
court, and fails to object timeously, such court will thereby acquire jurisdiction
to try him.
9. There are specific statutory provisions in terms of which a magistrate’s court
may exercise jurisdiction. Thus s18 of the Aviation Act 74 of 1962 provides that
in respect of any offence under that Act and in respect of any offence committed
on a South African aircraft, the offence is deemed for the purpose of criminal
jurisdiction to have been committed in any place where the accused happens to
be. See s4 of the Civil Aviation Offences Act 10 of 1972.
10. Lastly, s111 of the Criminal Procedure Act 51 of 19 confers upon the national
director of public prosecutions an unlimited discretion to order a trial to take
place in the area of another director of public prosecutions. Note the extension in
s22(3) of Act 32 of 1998 – item (4) in 5.3.2 above.

PREPARATORY EXAMINATIONS

S125 regulates the jurisdiction of magistrates’ courts. A preparatory examination is

conducted in a magistrate’s court within whose area of jurisdiction the offence has
allegedly been committed. The director of public prosecutions may, however, if it
appears to him expedient on account of the number of accused involved or in order to
avoid excessive inconvenience or a possible disturbance of the public order, direct
that the preparatory examination be held in another court within the area of his
jurisdiction.

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D. JURISDICTION FOR OFFENCES COMMITTED OUTSIDE SOUTH AFRICA

The general principle is that the courts of the Republic will exercise jurisdictions with
regard to offences committed on South African territory only – cf Makhutla 1968 (2)
SA 768 (O); Mathabula 1969 (3) SA 265 (N); and Maseki 1981 (4) SA 374 (T).
However, there are a number of exceptions. The exceptions apply with regard to the
following offences:

1. High treason. By its very nature high treason is an offence which is frequently
committed on foreign territory, eg where a South African citizen in wartime
happens to be resident in an enemy country and joins the enemy army.
2. A South African court will have jurisdiction to hear a charge of theft (which is a
continuing offence) committed in a foreign state – not because it is regarded as
theft in the foreign country, but because an accused is regarded to continue to
appropriate the stolen object with the necessary intention in South Africa –
Kruger 1989 (1) SA 785 (A).
3. Offences committed on ships. Here one has to distinguish between offences
committed on South African ships on the open sea or on other ships by South
African citizens (by virtue of the Merchant Shipping Act 57 of 1951), on the one
hand, and offences committed within the territorial waters of the Republic and
piracy, on the other. The territorial waters of a state must by virtue of international
law be considered as part of that state, so that legislation in this regard is
unnecessary. (S90(2) of Act 32 of 1944 now regulates the jurisdiction of
magistrates’ courts regarding offences committed within adjacent territorial
waters).
4. Offences committed on aircraft. One has to distinguish between offences
committed on South African aircraft, wherever they might be in the world, either in
the air or on land (see s18 of the Aviation Act 74 of 1962 and Hiemstra 277-8)
and certain offences (generally related to hijacking) committed outside the
Republic on board aircraft other than South African. In respect of the latter
category it is required that –
a) such aircraft lands in the Republic with the offender still on board; or
b) that the principal place of business or permanent residence of the lessee of
such aircraft is in the Republic; or
c) that the offender be present in the Republic – s3(2) of the Civil Aviation
Offences Act 10 of 1972.
5. Offences committed on territory which is subsequently annexed by the
Republic.
6. Offences committed by South African citizens in Antarctica are justiciable in
South Africa. For the purposes of the administration of justice, Antarctica is
deemed to be situated within the magisterial district of Cape Town – s2 of the
South African Citizens in Antarctica Act 55 of 1962.
7. Offences deemed to be committed where the accused happens to be.
Examples are: a number of statutes which make punishable specified acts
committed outside the Republic by residents or ex-residents of the Republic, eg
to undergo training which could be of use in overthrowing or endangering the
state authority of the Republic. However, an accused’s mere presence does not
always settle the matter: when an accused is illegally abducted from a foreign
state by agents of the South African authorities and subsequently handed over to
the South African police, the court before which such abducted person is
arraigned has no jurisdiction to try such person – Ebrahim 1991 (2) SA 5
See also internet crimes - s 90 of the Electronic and Communications
Transaction Act 2002 where persons accused of internet crimes can be brought
before SA courts even if the internet crime was committed outside SA if the

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accused is a SA citizen, permanently resident in SA, or is carrying on business in

SA.
See also the Prevention & Combatting of Corrupt Activities Act 2002 where
foreign registered companies can be sued or charged in SA for paying a bribe to
SA officials. Protection of Constitutional Democracy against Terrorist and
Related Activities Act (POCDATARA) Act 33 of 2004
8. Embassies have traditionally been regarded as part of the territory of the state
represented, but this notion has fallen into disrepute over the years on account of
malpractices (eg harbouring of criminals). The Vienna Convention of 1961
provides for diplomatic immunity from criminal jurisdiction in countries where
diplomatic agents represent their own states. Diplomats of course remain subject
to the jurisdiction of their home states – s31(4) of the said Convention reads as
follows:
The immunity of a diplomatic agent from the jurisdiction of the receiving state
does not exempt him from the jurisdiction of the sending state.
Generally speaking, it would appear (although the practice may vary in different
countries) as if domicile is accepted as the decisive test and that diplomats are
regarded as remaining domiciled on the territory of the sending state.

E. JURISDICTION WITH REGARD TO SENTENCING

The Criminal Procedure Act lays down specific rules with regard to the offences for
which the persons upon whom and the circumstances in which some of these
sentences may or may not be imposed. Apart from that, several Acts of Parliament,
ordinances and regulations contain provisions prescribing the minimum or maximum
sentences that may be imposed for certain offences.

The High Court (page 43 Joubert)

The Supreme Court of Appeal will only impose a sentence as court of first instance
where it convicts a person of contempt in facie curiae. In such a case the court will be
able to impose any sentence that may by law be imposed for that offence.

If the Supreme Court of Appeal, a provincial division or the Gauteng Local Division of
the High Court, after having heard an appeal in a criminal case, decides to change the
conviction of the appellant to a conviction of another offence or to confirm a conviction
but to impose a different sentence from the one originally imposed by the court of first
instance, the jurisdiction of the court is limited to impose a sentence that may by law
have been imposed by the court of first instance.

The Supreme Court of Appeal, provincial and local divisions may impose the following
sentences:
i) imprisonment, including imprisonment for life;
ii) periodical imprisonment;
iii) declaration as an habitual criminal;
iv) committal to a treatment centre;
v) a fine; any amount
vi) correctional supervision; and
vii) Imprisonment from which the person may be placed under correctional
supervision – s276 of the Criminal Procedure Act.

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Regional Courts

A regional court may impose the following sentences and no other:

i) imprisonment not exceeding a period of 15 years;
ii) periodical imprisonment;
iii) declaration as an habitual criminal;
iv) committal to a treatment centre;
v) a fine not exceeding the amount determined by the Minister from time to time by
notice in the Gazette (the amount determined with effect from 1 February 2013
is R600 000);
vi) correctional supervision; and
vii) Imprisonment from which the person may be placed under correctional
supervision – s276 of the Criminal Procedure Act.

District Courts

A district court may impose the following sentences and no other:

i) imprisonment not exceeding a period of 3 years;
ii) periodical imprisonment;
iii) committal to a treatment centre;
iv) a fine not exceeding the amount determined by the Minister from time to time by
notice in the Gazette (the amount determined with effect from 1 February 2013
is R120 000);
v) correctional supervision; and
vi) imprisonment from which the person may be placed under correctional
supervision – s276 of the Criminal Procedure Act.

Child Justice Courts

Sentencing jurisdiction limited to children and determined by age - children

between 10 and 14 ys may be sentenced to the following:

i) Community-based sentences – (s72)

ii) Restorative-based sentences – (s72)
iii) Fine or alternatives to a fine – (s74)
iv) Correctional supervision – (s75)
v) Compulsory residence in youth care centre – (s76)
vi) Imprisonment – (s77)

JURISDICTION TO PRONOUNCE UPON THE VALIDITY OF STATUTORY

PROVISIONS

Section 110 of the Magistrates’ Courts Act provides that no magistrate’s court shall be
competent to pronounce upon the validity of a provincial ordinance or of a statutory
proclamation issued by the President and every such court shall assume that every
such ordinance or proclamation is valid. However, every such court shall be
competent to pronounce upon the validity of any statutory regulation, order or by-law.

Where an accused pleads not guilty in a lower court and his defence is based on the
alleged invalidity of a provincial ordinance or a proclamation issued by the President,
the accused must be committed for summary trial before a superior court having
jurisdiction – s117.

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CHAPTER 3 PROSECUTING CRIME

INTRODUCTION

The official enforceable criminal justice system began its development when the
community transferred authority from the private individual to the state. In this way the
right of the victim to exact justice from the offender in his/her own right was abolished.

As a result of the development from the individual’s exacting justice in his/her own
right to public prosecutions the commission of a criminal act was regarded by most
modern states as violation of public interest. In principle punishment is meted out on
behalf of the community and for the protection of the interest of the individual who is
the victim of the crime. For this reason the state should in principle also undertake the
necessary prosecuting functions, even in circumstances where an identifiable victim
has suffered demonstrable personal harm, for instance where he/she was the victim
of theft.

STRUCTURE AND COMPOSITION OF THE PUBLIC PROSECUTION

In South Africa the function of public prosecution is carried out by a single national
prosecuting authority. The powers of this authority are derived from the Constitution
(s179) and the National Prosecuting Authority Act 32 of 1998, which repealed and
replaced the provisions of ss 2 to 5 of the Criminal Procedure Act and repeated in toto
the Attorney General Act 92 of 1992. In virtue of the Constitution the national
prosecuting authority consists of one national director of public prosecutions
(referred to also as the “NDPP”) who is the head of the prosecuting authority, as well
as deputy national directors of public prosecutions, directors of public
prosecutions (referred to also as the DPP), deputy directors of public
prosecutions, and prosecutors. At the seat of each High Court there is an office
under the control of the director of public prosecutions with his/her deputies and
prosecutors (These are the same offices that used to be under the control of the
attorneys general and that are now known as the office of the director of public
prosecutions, for example the office for the Transvaal, Witwatersrand,
Pietermaritzburg and so on. Note too, that the previous designations of “state
advocate” and “state prosecutor” have now been replaced by the designation of
“prosecutor”). See S v Zuma 2009 (2) SA 277 (SCA).

The functions, composition and powers of the prosecuting authority that are not laid
down by the Constitution are regulated by the National Prosecuting Authority Act 32 of
1998. The national director exercises control and authority over the deputy national
directors and the directors. He is responsible for the institution of a prosecution policy
and the issue of policy directives, the appointment of prosecutors, directors and
deputy directors, and issuing written authority for them to prosecute. He is empowered
to intervene in any prosecution process where the policy rules are not complied with,
and after consulting with the director of public prosecutions he may review the
decision to prosecute at the request of persons whom he deems relevant.
Prosecutors in lower courts exercise their powers subject to the authority of the
relevant director of public prosecutions in whose area of jurisdiction the relevant lower
court is situated. See S v Shaik (1) SACR 1 (CC). Section 22 of the NPA Act
establishes a code of conduct for members of the NAP which is a public document.

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Note: The President may also appoint three investigating directorates, subject to the
control of the NDPP. The President may also appoint special directors to perform
specific functions determined by the President.

There are 7 units that fall under the NPA:

• National Prosecution Services (NPS)
• Asset Forfeiture Unit (AFU)
• Sexual Offences and Community Affairs (SOCA)
• Specialised Commercial Crime Unit (SCCU)
• Witness Protection Unit (WPU)
• Priority Crimes Litigation Unit (PCLU)
• Integrity Management Unit (IMU)
• Corporate Services (CS)

a) APPOINTMENT page 58 Joubert

Appointment of NDPPs is made by the President. DNDPPs and DPPs by the
President, after consultation with the Minister of Justice and the NDPP. Appointment
of ordinary prosecutors on the recommendation of the NDPP, and subject to the laws
governing the public service.
In terms of Democratic Alliance v President of SA 2012 (1) SA 417 (SCA) the courts
do possess judicial review/scrutiny over the appointment of the NDPPP in terms of s
197 of the Constitution and s 9 of the Nat Prosecuting Act and will review based on
the fitness of the appointment, the objectivity, independence, lack of fear/ favour or
prejudice on the part of the appointee.

b) QUALIFICATIONS pg 58 Joubert; 62 (DPP);

- The appropriate qualification to practice in SA courts.
- Fit and proper person.
- Due regard paid to experience, integrity, etc.

c) PERIOD IN OFFICE
- A DPP holds office for a non-renewable period of 10 years and must leave office
on reaching 65. Can be extended past 65, but not past 10 years (max 2 years)
- A DNDPP and DPP must also leave office at 65 but are not subject to the 10 year
period. Can be reappointed at 65 for a further 2 year period.

d) POWERS AND FUNCTIONS

NDPP and DNDPP (National and Deputy National Director)

S22(2) provides that, in accordance with s179 of the Constitution, the NDPP (a) must
determine prosecution policy and issue policy directives as contemplated in
s21, (b) may intervene in any prosecution process when policy directives are
not complied with; and (c) may review a decision to prosecute or not to
prosecute, after consulting the relevant DPP and after taking representations,
within the period specified by the NDPP, of the accused person, the
complainant and any other person or party whom the NDPP considers to be
relevant (see also s179(5)(d) of the Constitution).

Where the NDPP or a DNDPP authorised thereto in writing by the NDPP deems it in
the interest of the administration of justice that an offence committed as a whole or
partially within the area of jurisdiction of one DPP be investigated and tried within the
area of jurisdiction of another DPP, he or she may, subject to the provisions of s111 of
the Criminal Procedure Act 51 of 1977, in writing direct that the investigation and
criminal proceedings in respect of such offence be conducted and commenced within
the area of jurisdiction of such other DPP – s22(3).

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In terms of s22(6)(a) of Act 32 of 1998 the NDPP must, in consultation with the
Minister of Justice and after consultation with the DNDPPs and the DPPs, frame a
code of conduct which must be complied with by members of the prosecuting
authority.

The NDPP or a person designated by him or her in writing may authorise any
competent person in the employ of the public service or any local authority to conduct
prosecutions, subject to the control and directions of the NDPP or a person
designated by him or her, in respect of such statutory offences, including municipal
laws, as the NDPP, in consultation with the Minister of Justice, may determine.

DPP and DDPD (Director and Deputy Director)

A director is authorised to undertake the prosecution of criminal cases and any appeal
arising from such cases, as well as the prosecution of criminal cases and any appeal
or review arising from such cases in a particular area of jurisdiction of the High Court
of South Africa. This official is also authorised to delegate his/her authority. It is
his/her duty to control and supervise prosecutors in lower courts, while prosecutors
are appointed by the national director. The director also has certain extraordinary
powers as contained in the provisions of s185 of the Act, as well as the authority to
identify certain offences by way of a certificate as special offences that have certain
consequences, particularly as regards granting bail to the accused. The director must
exercise his/her function in accordance with the laws and customs of the Republic, as
well as in accordance with the policy and stipulations of the national director. It is the
duty of the director to exercise his/her discretion concerning the institution of a
prosecution so that the legitimacy of the criminal justice system is not jeopardised by
discriminatory prosecution.

Ordinary Prosecutors
Local public prosecutors are as a rule permitted to exercise their own discretion in
deciding whether to prosecute.

e) SUSPENSION AND REMOVAL FROM OFFICE

All prosecutors can be removed from office on (i) misconduct, (ii) ill-health, (iii)
incapacity to carry out duties, (iv) no longer a fit and proper person to hold office.

f) MINISTERIAL RESPONSIBILITY OVER PROSECUTING AUTHORITY

The prosecuting authority is accountable to parliament and the Minister of Justice has
final responsibility (i.e. not control).

To enable the Minister to exercise responsibility (as contemplated in the Constitution

and the Act), the NDPP must provide the Minister with (i) information or reports on the
carrying out of the duties, powers of the prosecution services, (ii) provide the Minister
with reasons for certain actions carried out by the prosecution service, (iii) furnish the
Minister with information regarding policy directives, etc, (iv) meet with the Minister at
regular intervals. See S v Yengeni 2006 (1) SACR 405 (T) - Constitution guarantees
the independence of the NPA.

Note: It is not yet certain whether the Minister’s area of responsibility means that the
Minister can interfere in the decision making of the prosecution services. All he can
do is ask for reasons.

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g) THE COURTS AND THE PROSECUTING AUTHORITY

The courts, in principle, cannot interfere with bona fide decisions of the prosecuting
authority. However, a court may intervene in the following circumstances:
• The NPA’s discretion can be reviewed by the courts on the basis of ordinary
administrative law grounds of review where mala fides can be proved,
• or where it can be proved that the NPA never applied its mind to the matter
• or acted from an ulterior motive – see generally Mitchell v Attorney-General,
Natal 1992 (2) SACR 68 (N).
• Likewise, the courts will on the basis of administrative law principles be able to
interfere where the NPA exceeds its powers.
• Control by the courts is also justified on administrative law grounds where a DPP
delegates a function which he/she should have performed.
• The courts can also express disapproval of a NPA decision by awarding an
accused a lenient sentence, or even by acquitting the accused at trial.
• In terms of s 92 of the Child Justice Act, a court may intervene procedurally
when an adult is using a child to commit an offence, by reporting it to the police
service

h) THE POLICE AND THE PROSECUTING AUTHORITY

As far as prosecutions are concerned, the police do in practice exercise a

discretion of their own and often refrain from bringing trivial matters and
allegations, which are not adequately supported by evidence, to the attention of the
public prosecutor. All investigations completed by the police for purposes of a
prosecution must be submitted to the prosecuting authorities as the police do not have
the final say on whether a prosecution should be instituted. The final decision rests
with the DPP concerned or his local public prosecutors, as the case may be.

The initial investigation is conducted by the police. They do so upon their own initiative
or as a result of a complaint received from the public. Or they may do so in
consequence of instructions received from the prosecuting authorities. See
s24(4)(c)(I) of Act 32 of 1998. The police prepare a docket (file, dossier) for
submission to the public prosecutor who takes the decision whether to prosecute or
not. The prosecutor, in the exercise of his discretion to prosecute, examines the
docket and, if satisfied that there is a prima facie case, the prosecutor has a duty to
institute a criminal action.

i) THE VICTIM’S PARTICIPATION IN THE CRIMINAL PROCESS

In the Criminal Procedure Act there is no primary role for the victim as the criminal
justice system has been designed as an offender orientated adversarial/accusatorial
contest between the state and the accused (hence the case citation – S v Accused).
However, although the criminal system lacks adequate victim support procedural
strategies, the CPA does allows a role for the victim as a complainant initiating an
investigation against the accused, and as a possible witness against the accused.

Certain sections of the CPA promote victim protection in the criminal process:
• The victim as a witness is entitled to a degree of witness protection. The DPP
may withhold a witness name and address from an indictment if there is
reasonable cause to suspect that the witness may be in danger (s153(2));
• A victim/witness may testify behind closed doors (s158(3)(e); via closed circuit
camera; or even through an intermediary;

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Certain sections of the CPA promote victim participation in the criminal process:
• The victim/witness may apply for witness protection in terms of the Witness
Protection Act of 1998
• S 105A(b)(iii) allows consultation with a complainant/victim in respect to the
content and conditions of a plea and sentence agreement;
• S 300 allows for compensation to a victim where the offence has caused direct
damage to or loss of property;
• S 179(5)(ii) & (iii) of the Constitution, allows the NDPP when assessing a decision
to prosecute or not to prosecute may consult with the relevant DPP, and take
representations from the complainant, and any other relevant person;
• S 66(1) of the Sexual Offences & Related Matters Amendment Act of 2007, in
sexual offences an investigating officer must obtain a victim impact statement,
which sets out the extent that the crime has affected the victim’s life, before the
victim testifies at trial. This statement must be handed to the prosecutor at trial;
• S 299A, in serious crimes, provides for representations by a complainant, or
relatives, with respect to a convicted accused placement on parole, on day
parole, or under correctional supervision;
• S 7, the opportunity for a complainant to conduct a private prosecution may also
be regarded as a form of victim participation;
• The Child Justice Act introduces procedures based on restorative justice
approaches. Sections 61 & 62 allow for family-group conference & victim-
offender mediation between child offender and victim;
• S 70 of the Child Justice Act allows for a victim impact study to be adduced in a
child justice court.

j) THE PROSECUTION AS DOMINUS LITIS

The prosecution can be described as dominus litis (‘master of the case’).

However, no exaggerated importance should be given to this concept. It merely
means that the prosecution can do what is legally permissible to set criminal
proceedings in motion, such as determining the charges and the date and venue of
the trial. A measure of residual control by the courts over decisions taken by the
prosecution as dominus litis, remains essential. Fairness to the accused is an
important guideline in exercising this control.

In Khoza 1989 (3) SA 60 (T), it was held that the prosecution, precisely because it is
dominus litis, should formulate and consolidate all its charges, in relation to a
particular set of facts, to be tried in a single case. It may therefore not proceed in a
piecemeal fashion by bringing successive prosecutions on different charges in relation
to one broad incident.

k) THE PUBLIC AND THE PROSECUTING AUTHORITY

There is no general legal duty (as opposed to a moral duty) for the public to report a
crime (except in cases of treason). But a member of the public cannot lawfully refuse
to co-operate once subpoenaed as a state witness.

THE DISCRETION TO PROSECUTE

A prosecutor has a duty to prosecute if there is a prima facie case and if there is
no compelling reason for a refusal to prosecute. In this context, ‘prima facie case’
would mean the following: the allegations, as supported by statements and real and
documentary evidence available to the prosecution are of such a nature that if proved
in a court of law by the prosecution on the basis of admissible evidence, the court
should convict. Sometimes it is asked: Are there reasonable prospects of success?

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The prosecution, it has been held, does not have to ascertain whether there is a
defence, but whether there is a reasonable and probable cause for prosecution – see
generally Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 137. The
prosecution must at the trial be able to furnish proof beyond a reasonable doubt.

In exercising his discretion, 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 case is no good ground for fixing
an admission of guilt fine in a 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 –
Eusuf 1949 (1) SA 656 (N) at 656-7.

Two fundamental principles of criminal justice govern the exercise of the

discretion to prosecute. First, the police and prosecuting authorities should not
knowingly allow a pattern of contravention of a certain statute to develop and
then, most unexpectedly, arrest and prosecute. Secondly, discretionary prosecution
is no licence for discriminatory prosecution. This means that in the exercise of the
discretion to prosecute there must be no selective enforcement or non-enforcement of
the criminal law, amounting to unjustifiable distinctions between persons in similar
circumstances. Discriminatory prosecution not only conflicts with the equal protection
and due process principles or ideals of the criminal justice system, but also with s9(1)
of the Constitution, namely ‘equal protection law’.

Factors to be considered

When considering whether or not to prosecute, the prosecutor must in the public
interest consider the following factors:
i) The nature and seriousness of the offence :
• The effect of the crime on the victim, the manner in which it was committed, the
motive for the crime, the relationship between the accused and victim;
• The nature of the offence, prevalence and its effect on public morale;
• The economic impact of the crime;
• Its effect on the sense of security of the public;
• The likelihood of a conviction.
ii) The interests of the victim and the broader community :
• The attitude of the victim towards a prosecution;
• The need for a lesson in deterrence, and the need to maintain public confidence
in the criminal system;
• The length and expense of a trial.
iii) The circumstances of the offender :
• Previous convictions, previous criminal history, personal background, mitigating
or aggravating factors;
• Has the accused admitted guilt, shown a willingness to co-operate with
authorities;
• Are the practical alternative non-criminal punishments which will serve the
objectives of the criminal system in respect to juveniles, etc.;
• Has there been an unreasonably long delay in between date of crime and the
trial date.
iv) Other factors include:
• Triviality of offence;
• Whether a plea-bargain has been struck;
• Advanced age or young age;
• The antiquated nature of the offence;
• Tragic personal circumstances, ie father who negligently kills his young child.

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WITHDRAWING OR STOPPING A PROSECUTION

i) If the prosecution withdraws a charge before the accused has pleaded to the
charge, then the prosecution is entitled to reinstate the same charge at a later
date (S6(a)). Accused not entitled to a verdict of acquittal.
ii) The prosecution can also withdraw a summons and issue another before the
accused pleads. Again accused not entitled to an acquittal.
iii) The prosecutor may withdraw a charge without the consent of the DPP;
iv) If the prosecution stops the prosecution after the accused has pleaded, but
before conviction then the accused is entitled to be acquitted (autrefois acquit).
v) Stopping of a charge by a prosecutor may only be done with the consent of the
DPP.

PRESCRIPTION OF A PROSECUTION
A prosecution prescribes after 20 years from the time the offence was committed
(except for murder, treason, aggravated robbery, kidnapping, rape).

PRIVATE PROSECUTION

a) Introduction
A prosecution undertaken by the director of public prosecutions and his staff is known
as a “public prosecution” to distinguish it from a “private prosecution” conducted
by a private individual because he/she feels aggrieved by the decision of the director
of public prosecutions and the national director of public prosecutions not to institute a
prosecution in a particular case.

At first glance it may seem contradictory to say that the state should undertake the
prosecution and then immediately speak of something like a “private prosecution”.
However, the need for the existence of a “private prosecution” is clear from the fact
that the director or prosecutor has the discretion to institute a prosecution or not.
This means that even if the institution that undertakes the investigation (normally the
police) identifies the person who committed the crime, the director may still decide not
to prosecute the person concerned. There are various reasons why the director would
take such a decision, such as a conviction that there is no evidence to prove the
offender’s guilt beyond reasonable doubt, and that it would therefore be a waste of
state money to insist on instituting a prosecution, or that the case is a triviality that
does not merit attention from the state (de minimis non curat). See other factors
above.

To prevent an interested party from taking the law into his/her own hands in
such a case and punish the offender on his/her own initiative, provision has been
made for such a person to institute a prosecution against the offender in his/her
own behalf. Such a prosecution is known as a “private prosecution”. Such
prosecutions are simply safety valves through which pressure that builds up in
society as a result of a decision of the prosecuting authority not to institute a
prosecution is relieved. In South Africa private prosecutions rarely take place.
However, such prosecutions are regarded as an essential part of our criminal justice
system.

There are two kinds of private prosecutions. Firstly, by means of a statutory right
(s8 Criminal Procedure Act) where a person’s right to prosecute is expressly
authorised in a particular statute, for example, large municipalities have the right to
conduct private prosecutions for the contravention of municipal regulations. (Subject
to the control and intervention of the DPP). Secondly, by means of a certificate of
nolle prosequi.

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b) Private prosecution by certificate nolle prosequi (S7 of Criminal Procedure

Act).

A private prosecution must be instituted and conducted in the name of the private
prosecutor – s10(1) of Act 51 of 1977. All process must also be issued in the name of
and at the expense of the private prosecutor – s10(1) and 14. The indictment or
summons, as the case may be, must describe the private prosecutor with certainty
and precision and must be signed by such prosecutor or his legal representative –
s10(2).

A private prosecution shall – except as otherwise stated in the present chapter – be

proceeded with in the same manner as if it were a prosecution at the instance of the
state – s12(1). This means that an accused enjoys all those procedural rights which
would have been available to him had he been prosecuted at the instance of the state.
He enjoys the additional privilege that he may be brought before the court only by way
of summons in the case of a lower court or an indictment in the case of the High court.

i) Locus Standi of private prosecutor

Where the DPP has refused to prosecute, any private person may institute an action
against the accused where: (s7(1))

• The private person has a substantial and peculiar interest in the action, where the
private person suffered injury as a result of a crime.
• A husband may institute an action if the crime was committed against his wife (vice
versa).
• A wife, child, next of kin may institute action for the death of a relative.
• So can a legal guardian, curator on behalf of a minor, or lunatic.
• A widow has a necessary peculiar interest.
• Companies and other juristic persons do not have the right to a private
prosecution.

The question whether a private person has in terms of s7(1)(a) ‘some substantial and
peculiar interest in the issue of the trial arising out of some injury which he individually
suffered in consequence of the commission of the … offence’ is a question of law as
well as fact. The right to a private prosecution should not be interpreted restrictively,
however there are certain reasonable limitations on the right. A private prosecution
cannot be instituted when it is frivolous, vexatious, and involves an abuse of process.

ii) The certificate nolle prosequi

The private prosecutor cannot summons any person or use any court without
producing a certificate. A certificate nolle prosequi is a certificate signed by a DPP and
in which he confirms, first, that he has examined the statements or affidavits on which
the charge is based and, secondly, that he declines to prosecute at the instance of the
state – s7(2)(a).

A DPP must, at the request of the person intending to prosecute, grant the certificate
nolle prosequi in every case in which he has declined to prosecute. It would seem as
if the DPP is not entitled to investigate whether the person requesting the certificate
has the necessary locus standi as envisaged in s7(1)(a) to 7(1)(d). At the trial the
accused can raise lack of locus standi of the private prosecutor.
In terms of s7(2)(c) a certificate nolle prosequi shall lapse unless proceedings in
respect of the offence in question are instituted by the issue of the required process
within three months of the date of the certificate.

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iii) Security for prosecution

No private prosecutor may take out or issue any process commencing the private
prosecution unless he deposits the sum of R2 500 with the magistrate’s court in
whose area of jurisdiction the offence was committed – s9(1). This amount serves as
security that the private prosecutor will prosecute the charge to a conclusion without
undue delay – s9(1)(a). The amount is forfeited to the state in the event of such a
delay – s9(3). Forfeiture to the state also takes place where the charge against the
accused is dismissed because of the private prosecutor’s failure to appear – s9(3) as
read with s11.

The magistrate’s court in whose area of jurisdiction the offence was committed may
determine a further amount to be deposited as security for the costs which the
accused may incur in respect of his defence to the charge – s9(1)(b).

iv) Other factors

• If the private prosecutor fails to appear on the day set down for trial, the charge
against the accused shall be dismissed (except if failure can be reasonably
explained). The accused cannot be privately prosecuted again (although the DPP
may choose to continue).
• The costs of a private prosecution must be paid by the private prosecutor (however
the costs of a successful prosecution may sometimes be borne by the state). If the
prosecution is unsuccessful the cost will always be borne by the private prosecutor
and if the prosecution was frivolous, he may be asked to pay the expenses of the
accused.
• The DPP may apply to court to intervene, to stop, or to take over the private
prosecution.

CHILD JUSTICE ACT

Diversion of criminal trial (i.e. avoidance of trial)

• Diversion means solutions to children’s crimes must be found outside the criminal
justice system in appropriate cases.
• Note no private prosecution against a child accused (s59(2))
• Three procedures for diversion:
Ø Diversion in terms of chapter 6 (sections 41 – 42) for minor crimes
Ø Diversions in terms of chapter 8 (sections 51-62)
Ø Diversion of matters involving schedule 3 offences.

See CJA summary – diversion levels p2 - 4

DECISION TO PROSECUTE CHILDREN

See CJA summary – pg 8

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CHAPTER 4: THE RIGHT TO LEGAL ASSISTANCE

INTRODUCTION

• Having access to a legal representative derives from a person’s right to have

access to the courts (Mandela v Minister of Prisons 1983 (1) SA 938 (A) on
957D).
• The right to legal assistance therefore arises in the pre-trial stage of the criminal
justice system when the person is identified as being suspected of committing a
crime that is under investigation by the police and also at the trial stage.
• A suspect is entitled to legal representation when the person is interrogated by
the police with a view to charging him/her.
• A suspect should not be deprived of legal representation. If a person is deprived
of the right to legal assistance it would make serious inroads on the person’s
freedom and it would be unconstitutional.
• The right is entrenched in s35(2) and (3) of the Constitution.
• Ss 73(1) and (2) of the CPA confirm this fundamental procedural right to legal
representation.
• (S73(3) provides for some qualified form of assistance that may be rendered by
third parties other than legal qualified counsel).
• The right to legal representation is not confined to the accused but is extended to
witnesses in appropriate cases.
• The effect of s35(2)(c) and (3)(g) of the Constitution is that an arrested person
as well as an accused, must be provided with legal representation at the
expense of the state if substantial injustice would otherwise result. ‘
• Substantial injustice’ means that an accused who is charged with an offence in
respect of which he may be sentenced to imprisonment if convicted and who
cannot afford legal representation, should be entitled to legal representation at
state expense.
• An accused must accept the legal representative appointed by the state and
has no choice as to the latter’s identity – Vermaas; Du Plessis 1995 (3) SA 293
(CC).
• The Child Justice Act also allows for legal representation in ss 80-83

See pg 8 of CJA summary

PRE-TRIAL: TO BE INFORMED BY THE POLICE ABOUT LEGAL

REPRESENTATION

• The right of a detained person to choose and consult with a legal practitioner and
to be promptly informed of this right, is now entrenched in s35(2)(b) of the
Constitution. A person who has been arrested is in detention from the moment of
his or her arrest and therefore immediately qualifies for this right. Furthermore, the
accused may exercise this right at any stage during his/her detention, whether
before, during or after the trial.
• The arrested person must be informed of this right in a manner that it can
reasonably be supposed that he understood the right and the importance thereof
– Melani 1996 (1) SACR 335 (E).
• The right of a detained person to be informed of this right not only requires the
police/state authority to inform him/her at the time of his/her arrest of this right,
but also at every further state of the investigation into the alleged offence where
his/her co-operation is sought, such as when he/she is being questioned, a

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statement is taken from him/her; he/she makes a confession or is required to take

part in an identification parade – Marx 1996 (2) SACR 140 (W); Mlakaza 1996 (2)
SACR 187 (C); Mathebula 1997 (1) SACR 10 (W); and Agnew 1996 (2) SACR
535 (C).
• An accused may waive the right to legal representation, but such waiver must be
an informed one. The waiver of the accused of their right to legal representation
which is uninformed is invalid.
• The right to legal representation includes the right to confidentiality during
consultation with the legal practitioner. A detainee therefore has the right to consult
with his legal adviser without the conversation being overheard (legal professional
privilege).
• If the accused is deprived of the right to legal assistance all statements made by
the accused should be excluded as evidence in his/her trial.

TRIAL: TO BE INFORMED BY THE JUDGE

• The right to legal assistance is a fundamental right (Zuma 1995 (2) SA 642 (CC).
• A right is of no use to a person if he is not aware of it. The Constitution accordingly
provides in s35(3)(b) that the accused person must be promptly informed of the
right to choose and be represented by a legal practitioner of his/her choice. A
judicial officer therefore has a duty to inform an unrepresented accused that he
has a right to be legally represented. A judicial officer must explain this right and
point out to the accused that he has a right to be assisted by a legal representative
with whom he can communicate in his own language or, in the exceptional
circumstances where this is not feasible, through an interpreter – Pienaar 2000 (2)
SACR 143 (NC).
• A failure on the part of a judicial officer to inform an unrepresented accused of his
legal rights, including the right to legal representation, can lead to a complete
failure of justice – Radebe 1988 (1) SA 1919 (T).
• There is no prejudice (and hence no failure of justice) where the accused would in
any event have been convicted, notwithstanding a failure of a judicial officer
to inform the accused of the right to legal representation – Hlantlalala v Dyantyi
1999 (2) SACR 541 (SCA).
• When a court explains to an undefended accused about the right to legal
representation and the accused, facing a serious charge, elects to appear in
person, the court should ask the accused why he/she wants to appear in person
and if it appears that the accused is under some other misunderstanding, that has
to be put right – Nkondo 2000 (1) SACR 538 (W); Manale 2000 (2) SACR 666
(NC).
• It has long been realised that only to inform the accused about his right to legal
representation would be worthless if he is in any event too poor to afford it. It was
therefore decided by some courts that the accused should furthermore be
informed of his right to legal aid. (See also Hlantlalala v Dyantyi).
• In Hlantlalala and Others v Dyantyi NO and Another, above, it was held that the
fact that “no administrative machinery rendering a free legal service” is available in
a particular part of the country, is untenable, and cannot be proffered as an excuse
for denying a section of the South African society, merely because they happen to
be in a particular area, rights otherwise enjoyed by the rest of the country.

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THE CASE: HLANTLALALA v DYANTYI

• The court decided that a clear distinction should be made between the
constitutional right to retain legal counsel at state expense when material
injustice would arise without it, and the common law right to legal
representation, which entails: the right to be informed about it, as well as the right
to apply to the Legal Aid Board for legal assistance and for the opportunity to retain
legal assistance. A legal officer is duty bound to inform the accused about this in
virtue of his/her common law right to legal representation.
• The court also decided that the content of the common law right to legal
representation requires that under suitable circumstances the court must also
inform the accused that he/she is entitled to apply to the Legal Aid Board for
legal assistance.
• The legal consequence of a failure to inform: There is no failure of justice or
prejudice to the accused, where despite a failure to inform the accused of the right
to legal advice, he/she would still have been convicted. The court decided that
where the presiding officer failed to inform the accused of his/her common law right
to legal representation, an irregularity may arise. This irregularity does not in
itself result in an unfair trial that will persuade the court of appeal to set aside the
conviction. The primary question to be resolved is whether the conviction was
affected by the irregularity. The accused will have to show on appeal or review
that the irregularity resulted in a failure of justice. A trial is not made unfair by
failure to inform per se. An irregularity will only lead to a failure of justice if there
has been real or material prejudice to the accused (see also Ramalope 1995 (1)
SACR 16 (A)).
• The test to determine whether the irregularity of failure to inform the accused of
his/her common law right led to a failure of justice was stated as follows: “Where
the accused suffered no prejudice, no failure of justice has been caused, just as
there will be no injustice if the accused were found guilty all the same, regardless
of the irregularity, and even if the presiding officer did not neglect to inform the
accused of his common law right to legal representation”.

POSTPONEMENT
• A refusal to grant a postponement, in order to obtain legal representation,
may amount to an irregularity.
• Where the accused’s legal representative withdraws, the court must ask the
accused whether he wishes to have the opportunity to instruct another attorney or
to undertake his own defence – a failure to do so invalidates the proceeding.
• Where an accused has had ample time to obtain legal representation his failure
to do so cannot invalidate the proceeding.
• The refusal to grant a postponement is only irregular if it has unfairly prejudiced
the accused and the conviction will be set aside.

ROLE OF A LEGAL REPRESENTATIVE

• The Criminal Procedure Act further provides that ‘any accused person who in the
opinion of the court requires the assistance of another person may, with the
permission of the court, be so assisted’ – s73. (It has happened that a magistrate
authorised an articled clerk (candidate attorney) to assist an accused in terms of
this section).
• Assistance in terms of s73 cannot be foisted on an accused either by a court’s
order that he has to be represented or by appointment of a representative for such
a purpose if he does not seek it.
• Note: The same advocate cannot defend two accused when there is a conflict of
interests.
• The accused is bound by the actions of his legal representative.

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LEGAL AID

• If the charge against an accused who cannot afford legal representation is not
of such a serious nature that a pro Deo counsel would be appointed automatically,
the court has a duty in certain cases (depending on the facts) to determine before
the commencement of the trial whether the absence of legal representation would
prejudice the accused to such an extent that continuation of the trial without legal
representation would clearly result in an unfair trial.
• If the court comes to the conclusion that the accused should be assisted by a
legal representative, it should refer the matter to a legal aid scheme or an
association of lawyers willing to offer assistance pro bono. (Legal aid – as
distinguished from legal assistance – denotes the provision of the means to
acquire legal representation).
• The court should decline to continue with the trial until such time as legal
representation is procured. (Rudman; Mthwana).

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CHAPTER 5. THE ACCUSED: PRESENCE AS A PARTY

GENERAL RULE (THE PRINCIPLE OF CONFRONTATION)

• It is a fundamental principle of criminal procedure law that an accused has to be

present at his/her trial from the beginning to the end so that confrontation
with witnesses can take place.
• If the accused is absent from the trial and therefore deprived of the opportunity to
defend him/her fully, it can be said that an infringement of his/her constitutional
right has taken place.
• This basic principle is guaranteed in ss34 and 35(3)(c), (e) and (i) of the
Constitution.
• Confrontation means that the accused must see witnesses as they testify
against him so that he can observe their demeanour, and they must give their
evidence in the face of a present accused. The denial of this fundamental right of
an accused in itself amounts to a failure of justice that will lead to the setting aside
of the accused’s conviction on appeal or review – s35(3)(i) of the Constitution and
Motlatla 1975 (1) SA 814 (T).

EXCEPTIONS TO THE RULE

i) Absence owing to misconduct (s159(1) of Criminal Procedure Act)

• The first exception discussed is the trial of an accused in his/her absence owing to
his/her misconduct. The removal from a court of an accused who misbehaves
during the trial is necessary since such an accused can actually prevent a court
from deciding guilt by making it impossible for the court to continue with the
trial.
• Presiding officers have discretion in this regard. Nevertheless, the removal of the
accused is only a last resort when all other remedies have proved unsuccessful.
• The accused has only him/herself to blame for his/her absence at his/her trial and
the forfeiture of his/her constitutional rights, but he/she can regain them by
behaving property and with the requisite decorum and respect towards the court in
particular, and the judicial institution in general.
• Even after the accused has been removed, it is advisable to give him/her a
further opportunity and have him/her brought before the court after the leading of
evidence has been completed and to ask him/her whether he/she wishes to give
any evidence

ii) Absence when there are several accused (s159(2).

• The second exception occurs in the situation where there are several accused
and one of these is absent. In such cases the trial would normally be
postponed to a later date.
• However, circumstances can be such that the other accused could be
prejudiced or embarrassed if the case were postponed, in which case the
interests of the absent accused must be weighed against those of the other
accused. The CPA provides for the trial to continue if it transpires that such
continuation is necessary to serve the ends of justice. It stands to reason that
the court will only take this course if there is no other alternative (such as separate
trials).

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• Justifiable absences are serious illness (unable physically to attend) or illness

or death of a close family member.
• If the proceedings continue in the absence of the accused he/she may, if he/she
later again attends the proceedings and has not been legally represented during
his/her absence, examine a witness who testified during his/her absence and
inspect the record of the proceedings.

iii) Admission of guilt fine (s57)

• The purpose of the admission-of-guilt fine according to s57 is:
Ø first, to help the accused to avoid appearance in court, and
Ø secondly, to avoid the possibility that court procedures will be overwhelmed by
trials that could otherwise be finalised by this simple procedure (of admission
of guilt fines).
• An admission of guilt can also be granted to an accused who is awaiting trial while
in detention, and who has already appeared in court on a minor charge (see s57A).
• Admission of guilt fines are usually only granted for minor offences.
• The accused must be prepared to pay the fine voluntarily and thereby relinquish
his/her right to confrontation.
• The Clerk of the Court or a prosecutor who issued the summons may, on
reasonable grounds, ie a belief that the court will not impose more than a R1 500
fine, endorse the summons by asking the accused to plead guilty and pay the fine.
• The prosecutor at trial and before the accused has pleaded may do the same by
written notice.
• The accused on receiving the summons, may without appearing in court, admit
guilt and pay the fine.
• Such an admission of guilt amounts to a previous conviction for the purposes of all
offences.
• A public prosecutor may also reduce an admission of guilt fine on good cause
shown –s57(4).

COMPOUNDING OF MINOR OFFENCES (s341)

Discuss and compare payment of a fine without appearing in court and
compounding of minor offences;
• If the clerk of the court believes that an accused will not be convicted of paying a
fine of more than R5000 when issuing a summons, the clerk may endorse the
summons and allow the accused to admit guilt and pay the fine without appearing
in court
• The prosecutor may also give the accused a similar endorsement on the summons
after the accused first appearance but before pleadings
• The accused may pay the clerk, the Magistrate or the police before the stipulated
date on the summons
• The amount can be reduced on good cause is shown (for statutory offences such
as traffic violations)
• Payment of an admission of guilt amounts to a conviction and sentence and is
seen as a previous conviction

Compounding of minor offences (S341) versus admission of guilt:

• The offender pays an amount not to be prosecuted (ie pays the amount in order to
avoid going to court)
• Parking ticket
• Offender pays amount in summons or written notice to appear instead of going to
court
• By signing and paying the accused is convicted and sentenced which results in the
accused having a previous conviction

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CHAPTER 6. STATE POWER VERSUS INDIVIDUAL RIGHTS

INTRODUCTION

• The state (police, and prosecution services) are given certain powers (arrest,
detention, investigation, etc) which are used in the interest of the public to
control crime. These powers necessarily infringe on certain individual human
rights (i.e. dignity, freedom, privacy etc)
• Such powers may therefore only be exercised under narrowly circumscribed
conditions for which explicit provision is made by law.
• Such infringements of an accused’s rights may also be reviewed by the court to
determine whether it conforms to the Constitution.
• Any person who would exercise these powers in circumstances that are in conflict
with the provisions of the Constitution, and for which no other explicit legislative
provision is made, thereby commits an unlawful act (ie acts in conflict with the law)
and is liable to civil claims from persons who are prejudiced by such act. In
the past persons who exceeded their powers in this regard have been found guilty
of crimes such as murder, culpable homicide, crimen iniuria and theft
• The behaviour of police/prosecutors who act within the powers granted to
them in terms of criminal procedural law are regarded as lawful. However,
when the police/prosecutor exceeds the power delegated to them, their actions
become unlawful.
• A person who exercises the powers given to them by the Criminal Procedure Act
and the Constitution may invoke the justifying grounds of “legal authority” or
“official capacity” when charged with an unlawful infringement of an accused’s
constitutional rights.

LIMITATION OF INDIVIDUAL RIGHTS

• The law jealously protects the personality and property rights of individuals. These
rights include very person’s right to his body, freedom, honour, dignity and privacy,
as well as his rights with regard to property. These interests are fully protected by
the Constitution (see ss 10, 12, 14 and 25).
• Sometimes society’s wider interest in the combating of crime necessitates the
limitation of there rights. It may, for instance, be necessary to arrest persons
and thereby encroach upon their freedom of movement or to seize property.
Despite this, the law constantly strives towards achieving a balance between
society’s demands, on the one hand, to bring offenders to justice and, on the other
hand, to uphold the personality and property rights of the individual. (The latter,
after all, until found guilty in a court of law, is presumed innocent – see s35(3)(h) of
the Constitution).
• To achieve this, the law (and in particular, the law of criminal procedure) lays down
strict rules with regard to the circumstances in which a limitation of these rights will
be permissible to investigate crime or to bring offenders to justice.
• The constitutionality of these limitations can only be determined by
measuring them against the limitation clause in s36 of the Constitution.

S36 limitation clause: sets out certain requirements which must be complied with in
order for the police/prosecutorial state actions to be regarded as constitutional. The
state action which limits the individual’s rights:
a) Must be contained in a law of general application; and
b) Must be reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom.

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In considering whether a particular limitation complies with these requirements, a

court has to take into account all relevant factors, including –
a) the nature of the individual’s rights;
b) the importance of the purpose of the limitation;
c) the nature and extent of the limitation;
d) the relation between the limitation and its purpose; and
e) less restrictive means to achieve the purpose.

These factors will indicate whether the limitation could be considered as being
proportional to the purpose of the limitation. Simply stated, it means that a court will
have to determine what purpose the limitation sets out to achieve, whether this
purpose is sufficiently important to justify a limitation of the right, whether the
limitation will be effective to achieve the purpose and, finally, whether the purpose
could be achieved in another, less restrictive, manner.

The remedies for unlawful conduct are:

a) Firstly, a person unlawfully arrested or whose property was unlawfully searched or

seized, may institute a civil claim against the person effecting the arrest, search or
seizure and, in some instances, even against his/her employer (eg the state, if the
person who acted unlawfully was a state official, such as a police official).
b) Secondly, in appropriate circumstances an unlawful search, seizure or arrest may
even constitute an offence.
c) Finally s35(5) of the Constitution provides that evidence obtained in a manner
which 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. This means that if evidence is obtained during an unlawful
search or by unlawfully arresting a person, such evidence will be excluded and
may not be taken into account by the court during the trial.

THE APPLICATION OF S36: THE BALANCING OF INTERESTS

i) Objectivity
By abolishing vengeance and transferring the power to punish people to the state a
certain amount of objectivity was brought into the prosecution and imposition of
punishment that had been absent before. This was achieved in that the victim no
longer needed to decide whether the offender deserved punishment or not, because
that function is now performed by an independent court, and in particular by a judicial
officer with the capacity to determine the guilt of the offender objectively

The advantages of objectivity in this regard are legion: An officer who really
investigates the commission or alleged commission of a crime will not be motivated by
a personal desire to exact vengeance, but rather by a desire to determine the facts
and by this means serve the ends of justice, since both from the victim’s side and from
that of the community he/she will consequently record all evidence, whether it points
to the guilt or innocence of the offender, and regardless of whether it reveals
aggravating or mitigating circumstances; he/she will have no desire to punish the
offender, but rather to bring him/her before the court so that justice may prevail, and
so on.

ii) Proportionality
Strict rules have been laid down by the legislator to ensure that encroachment on
individual rights only takes place when it is reasonable and necessary with a view to
the proper investigation of crimes, or to the reasonable and effective combating of
crime. In order to be constitutional, these laws must be objectively justifiable in the

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circumstances. To be justifiable the law or statutory provision must not only be

proportional to the envisaged objective, but must also be the least limiting way in
which the objective can be achieved effectively. For example: where force is used
in making an arrest the nature of the force and the way in which it is used must be in
proportion with the envisaged objective (to prevent the escape of a suspect so that an
arrest can be made, or in order to avert threatening danger).

iii) Reasonableness
The various statutory provisions providing for the power to conduct searches, to
seize articles and to arrest persons, repeatedly refers to ‘reasonableness’ in their
description of the circumstances in which these powers may be exercised. For
example:
• S20 provides that certain articles may be seized if they are ‘on reasonable
grounds believed to be’ articles of a certain nature.
• S21(1)(a) authorises the issuing of search warrants where it appears from
information on oath that there are ‘reasonable grounds for believing’ that
certain circumstances exist.
• S24, a person in charge of or occupying premises may conduct a search and seize
articles provided he ‘reasonably suspects’ certain circumstances to exist.
• Ss 26 and 48 authorise the entry of premises where the person ‘reasonably
suspects’ that a certain state of affairs exists.
• Ss 41 to 43 empowers certain persons to arrest persons ‘reasonably
suspected’ of having committed certain offences.
• S41 authorises peace officers to require that certain persons provide certain
information if they are ‘reasonably suspected’ of having committed offences.

The definition of reasonableness is set out in the following guidelines:

a) A person will only be said to have ‘reasonable grounds’ to believe or suspect

something or that certain action is necessary if :
• He really believes or suspects it;
• His belief or suspicion is based on certain ‘grounds’; and
• In the circumstances and in view of the existence of those ‘grounds’, any
reasonable person would have held the same belief or suspicion.
b) The word ‘grounds’ as it is used here, refers to ‘facts’. This means that there will
only be ‘grounds’ for a certain suspicion or belief if the suspicion or belief is
reconcilable with the available facts. The existence or otherwise of a ‘fact’ is
objectively
c) A person can therefore be said to have ‘reasonable grounds’ to believe or
suspect something if he actually believes or suspects it, his belief or suspicion is
based on facts from which he has drawn an inference, and if any reasonable
person would, in view of those facts, also have drawn the same inference. This is
a factual question that will have to be answered with reference to the factual
circumstances that are present in each case.

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CHAPTER 7. SECURING THE ATTENDANCE OF THE ACCUSED AT THE TRIAL

1. METHODS OF ENSURING ATTENDANCE

The methods of getting the suspect/accused in court are:

a) by summons
b) a written notice to appear
c) serving an indictment on the accused
d) arresting the suspect
e) warning the suspect/accused to appear in court.

Note that the presumption of innocence (explained above) means that the suspect
is presumed to be innocent until he/she is found guilty in a court, which means that it
must be assumed that the person suspected of committing the crime is innocent. It
stands to reason that the method entailing the least drastic encroachment on
individual freedom must be used to ensure the presence of the accused at his/her
trial. For example, where it would be sufficient to serve a summons on the accused in
which he is told to appear at a particular place in court, the accused should not be
taken into custody.

Various factors must be considered in deciding which method to use, for example
what the chances are that a person will obey a summons, whether there is any reason
to believe that the accused will interfere with state witnesses if he/she is not held in
custody, and so on – hampering the police investigation.

2. SUMMONS (Lower courts)(s 54)

This is used for a summary trial in a lower court where the accused is not in
custody or about to be arrested. In cases where there is no reason to suppose that
such an accused will abscond, attempt to hamper the police investigation, or attempt
to influence state witnesses, it is preferable to secure his attendance by means of a
summons and not to subject him to the indignity of an arrest. An accused may, of
course, be arrested even after a summons to appear on a certain date has been
served on him. This step may have to be taken when it becomes clear that he will
attempt to defeat the ends of justice.

To secure the attendance of an accused at a summary trial in a lower court by means

of a summons, the following procedure is followed:

• The prosecutor draws up the charge and hands it, together with information
relating to the name, address and occupation or status of the accused, to the
clerk/registrar of the court – s54(1).
• The clerk/registrar of the court issues a document (known as 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 –
s54(1).
• The clerk/registrar of the court hands the summons (together with so many copies
thereof as there are accused) to a person empowered to serve a summons –
s54(1). (Persons empowered to serve a summons include police officials – s329).
• The summons is served 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 years and apparently residing
or employed there – s54(2)(a).

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• A summons is in force throughout the Republic and may be served anywhere in

the Republic – s328.
• It may be transmitted by telegraph and service of a telegraphic copy has the
same effect as that of the original –s330.
• Service must take place at least 14 days (Sundays and public holidays excluded)
before the date fixed for the trial – s54(3).
• A return by the person who serve the summons that the service has been effected
in terms of s54(2)(a) may, upon the failure of the person concerned to attend the
proceedings, be handed in at the trial as prima facie proof of service – s54(2)(b).
• If the person summoned fails to appear at the place on the date and at the time
specified or fails to remain in attendance, he is guilty of an offence (contempt of
court) and liable to punishment of a fine or imprisonment for a period not exceeding
three months –s55(1).
• The court may, if satisfied from the return of service that the summons was duly
served (cf Ngcobo 1966 (1) SA 444 (N) and Minister van Polisie v Goldschagg
1981 (1) SA 37 (A)) and that the accused has failed to appear or to remain in
attendance, issue a warrant for his arrest.

CHILDREN - See CJA summary – SUMMONS P4

3. WRITTEN NOTICE TO APPEAR (Lower Courts)

If a peace officer on reasonable grounds believes that a magistrate’s court, on

convicting an accused of an offence, whether the accused is in custody or not, will not
impose a fine exceeding the amount determined by the Minister from time to time by
notice in the Government Gazette
(at present this amount is R5 000), he may hand to the accused a written notice –

• specifying the name, residential address and occupation or status of the

accused;
• calling upon the accused to appear at a place and on a date and at a time
specified in the written notice to answer a charge of having committed the offence
in question;
• containing an endorsement in terms of s57 (admission of guilt) that the
accused may admit his guilt in respect of the offence and that he may pay a
stipulated fine without appearing in court; and
• containing a certificate signed by the peace officer that he has handed the
original notice to the accused and explained the import thereof to him – s56(1).

If an accused fails to respond to the written notice in question, the provisions of s55 –
with regard to a summons (see above) apply mutates mutandis – s56(5). A written
notice to appear differs from a summons as follows:
• first, a written notice to appear is prepared, issued and handed directly to the
accused by a peace officer, whereas a summons is prepared by the prosecutor,
issued by the clerk of the court and served on the accused by a messenger of the
court or a police official (see s329).
• Secondly, whereas a written notice to appear always offers the accused the option
of paying a set admission of guilt fine in order to avoid a court appearance, a
summons need not provide this option. The purpose of this procedure is clearly to
expedite the course of justice in the case of minor offences.

CHILDREN - See CJA summary – WRITTEN NOTICE P5

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4. INDICTMENT (Superior Court)

At a trial in a superior court, the charge is contained in a document known as an

indictment,
• drawn up in the name of the director of public prosecutions.
• The indictment contains the charge against the accused, his name, address,
sex, nationality and age.
• It may be accompanied by a summary of the substantial facts of the case and a
list of the names and addresses of state witnesses – s144(1), (2) and (3).
• The indictment, together with a notice of trial, must be served on the accused at
least 10 days (Sundays and public holidays excluded) before the date of the trial,
unless the accused agrees to a shorter period.
• It is served by handing it to the accused in substantially the same manner as a
summons (discussed above) (s144(4)(a))
• A return of service is prima facie proof of service
• A failure to appear is an offence; and the court may issue a warrant of arrest
• Indictment is the only means whereby the accused can appear in a high court
without being arrested.

5. ARREST

i) Introduction

Arrest is a drastic infringement of the accused’s right to freedom (s12 and s21 of the
Constitution). Therefore the Criminal Procedure Act lays down strict rules concerning
when a person may be arrested. In terms of the Criminal Procedure Act an arrest
should preferably be affected only after a warrant for the arrest has been
obtained. It is only in exceptional circumstances that private individuals, or even
the police, are authorised to arrest anyone without the authority of a warrant.
Any arrest without a warrant which is not specifically authorised by law, will be
unlawful. Even a police official who executes a warrant for the arrest of a person must
exercise proper care in doing so. If he negligently arrests the wrong person, he may,
in an action for wrongful arrest, be compelled to pay such person a large amount in
damages. Apart from that, should an arrestee challenge the validity of his arrest and
detention, the onus to prove the lawfulness thereof is on the arrestor or the person
who ordered the arrest – Minister of Law and Order v Parker 1989 (2) SA 633 (A);
Ralekwa v Minister of Safety and Security 2004 (2) SA 342 (T).

See CJA summary for arrest p 5

ii) Requirements for a lawful arrest

a) The four pillars of lawful arrest (s 39)

• The first pillar is that the arrest (with our without a warrant) must have
been properly authorised, i.e. there must be a statutory provision
authorising the arrest. We shall discuss this requirement in detail below.
• The second pillar is that the arrestor must exercise physical control over
the arrestee. He must therefore limit the latter’s freedom of movement.
Unless the arrestee submits to custody, an arrest is effected by actually
touching his person or, if the circumstances so require, by forcibly
confining his person – s39(1). The amount of force – both lethal and non-
lethal – that may be used legally will be discussed below.
• The third pillar is the informing of the arrestee of the reason for his arrest:
s39(2) requires that an arrestor must, at the time of effecting the arrest or

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immediately thereafter, inform the arrestee of the reason for his arrest or,
if the arrest took place by virtue of a warrant, hand the arrestee a copy of
the warrant upon demand. This requirement is also entrenched in the
Constitution (s35(2)(a), quoted above).
An arrestee’s custody will be unlawful if this requirement is not complied
with – see Kleyn 1937 CPD 288 and Ngidi 1972 (1) SA 733 (N).
The question whether the arrestee was given an adequate reason for his
arrest depends on the circumstances of each case, particularly the
arrested person’s knowledge concerning the reason for his arrest. The
exact wording of the charge which will later be brought against the
arrestee need not be conveyed at the time of the arrest – Minister of Law
and Order v Kader 1991 (1) SA 41 (A).
• The final pillar is the requirement that the arrestee be taken to the
appropriate authorities as soon as possible. S50(1)(a) provides that an
arrestee must as soon as possible be brought to a police station or, if the
arrest was made in terms of a warrant, to the place stipulated in the
warrant. Minister of Safety and Security v Sekhoto 2011 (1) SACR 315
(SCA)

b) Arrest with a warrant (S43 and s44)

A warrant for the arrest of a person, where there is a reasonable suspicion that the
identified person has committed an offence, is a written order directing that the
person described in the warrant be arrested by a peace officer in respect of the
offence set out in the warrant and that he be brought before a lower court in terms of
s50 (which governs the procedure after arrest) – s43(2).

The issue of a warrant of arrest (s43):

• By a magistrate, justice of peace

• On the written application of a DPP, public prosecutor or police officer;
• Made under oath by a DPP, prosecutor or police official;
• Must set out the offence
• Must state area of jurisdiction in which offence is committed, or that the suspect
is in the area of jurisdiction;
• There is a reasonable suspicion that the person in respect of whom the warrant is
sought has committed the alleged offence;
• The warrant is issued on any day and remains in force until cancelled or executed
(s43(3));
• A warrant issued in one district is valid in all other districts of SA.
• A telegraphic or other printed copy (i.e. a printed communication) from a
magistrate/justice/police officer that a warrant has been issued is sufficient
authority for an officer in another jurisdiction to arrest the suspect (s 45)..

The execution of a warrant of arrest (s44)

• Executed by a peace officer (magistrate/justice/police correctional service officer

and certain other officials designated by the Minister of Justice;
• Ss46 and 331 make provision for the exemption from liability of a person who is
authorised to execute or assist in the execution of a warrant of arrest and who, in
the reasonable belief that he is arresting the person mentioned in the warrant,
arrests another or who acts under a warrant which is invalid due to a defect in the
substance or form thereof, provided that he has no knowledge of such defect.

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• A charge of resisting an arrest made in terms of a warrant will not fail merely
because the police officials were not in uniform, provided it appears that the
warrant was shown and explained to the arrestee and that he knew or was
informed that it was being executed by the police – Kalase JS 315/17 (C).
• In terms of s39(2), the person effecting an arrest in terms of a warrant, shall, upon
the demand of the person arrested, hand him a copy of the warrant. In
Minister van Veiligheid en Sekuriteit van Rautenbach 1996 (1) SACR 720 (AD), it
was held that if the person effecting the arrest is not in possession of the warrant of
arrest and realises that he will not be able to comply with a demand made in terms
of s39(2), the arrest will be unlawful.

c) Arrest without a warrant

Circumstances may arise where the delay caused by obtaining a warrant will
enable the suspect to escape. It is therefore imperative that provision be made for
the arrest of suspects without a warrant in certain circumstances.

A study of the rules relating to arrest will show that the powers to arrest of peace
officers are wider than those of private individuals. A police officer may arrest
persons who are caught in flagrante delicto (ie caught in the act), than in respect of
persons merely suspected of the commission of an offence. It will also be noticed that
not any suspicion is sufficient to justify an arrest. It must be a reasonable suspicion
and the crimes in respect of which arrest upon suspicion is possible are generally a
more serious nature, usually a schedule 1 offence. The question what is meant by
the term ‘reasonable suspicion’. See below

The general principle: in the case of Tsose v Minister of Justice 1951 (3) SA 10
(A), it was held that ‘If the object of an arrest, though professedly to bring an arrested
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 of the arrestor is to bring the arrested person
before court in order that he may be prosecuted to conviction and so may be
led to cease to contravene the law, the arrest is lawful.

‘Punitive arrest’ (i.e. arrest to punish the offender) is therefore illegal. In Tsose’s case
the police repeatedly arrested an unlawful squatter on a farm, allegedly with a view to
compelling him to leave

The peace (police) officer’s power to arrest without a warrant (s40 and 41)

A peace officer may arrest the following persons without a warrant (the arrest must be
based on a reasonable suspicion) in terms of s 40;

• Any person caught in the act of committing a crime Minister of Safety and
Security v Mhlana 2011 (1) SACR 63 (WCC);
• Reasonableness means a reasonable suspicion based on some factual evidence
but need not be a reasonable certainty;
• Any person reasonably suspected of committing a schedule one offence (i.e.
treason, murder, rape, kidnapping, arson, robbery etc);(the police officer must be
certain that the suspected crime does constitute a crime) (the reasonable suspicion
must have some factual basis)(the reasonable suspicion must be that of the officer
not someone else).

In addition to the above there are a number of specific instances set out in s 40(c)-(q):

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• A person whom the peace officer knows has escaped from custody (a reasonable
suspicion will not suffice in this instance);
• Any person in possession of housebreaking/car breaking tools;
• Any person found in possession of what may reasonably constitute stolen
property;
• Any person found at night in suspicious circumstances;
• Any person reasonably suspected of being in possession of stolen stock or
produce;
• Any person reasonably suspected of possessing, making, supplying or
conveying illegal drugs, liquor, guns and ammunition;
• Any person found in an illegal gambling house;
• Any person who obstructs the peace officer in the execution of his duty;
• Any person reasonably suspected of committing an act of domestic violence;
• Other persons include, prohibited immigrants, army deserters, persons who have
failed to pay fines, etc;
• Any person reasonably suspected of failing to pay a fine as set out in an order of
court
• Any person who fails to surrender to the police for periodic imprisonment.
• In terms of s 41 - If a person fails to furnish name, address, or furnishes a false
name or address, apeace officer may arrest ad detain the person for a period
not exceeding 12 hours.

In Kleyn 1937 CPD 288, the court pointed out that every man has the right to offer
reasonable resistance to unlawful aggression upon his person and, if unlawfully
arrested, is entitled to do anything reasonable to free himself. The court accordingly
held that the assault was justified and set aside the conviction. This case
demonstrates the importance attached by the High Court to the personal liberty of the
individual. As is clear from this case, a court will only allow a person to be deprived of
his personal liberty in those circumstances expressly provided for by the law.

The private person’s power to arrest (s42)

A private person may arrest the following persons:

• Any person who commits or attempts to commit in his presence or whom he

reasonably suspects of having committed a First Schedule offence; (the private
person may pursue that person and any other private person to whom the purpose
of the pursuit has been made known, may join and assist therein – s42(2));
• Any person whom he reasonably believes to have committed any offence and to
be escaping from and to be hotly pursued by a person whom such private
person reasonably believes to have authority to arrest that person for the offence;
• Any person whom he is by any law authorised to arrest without warrant in
respect of any offence specified in that law. In terms of s9(1) of the Stock Theft Act
57 of 1959 a private person may, for instance, arrest another without a warrant
where there is a reasonable suspicion that the latter has committed any one of
certain offences created by the Act;
• Any person whom he sees engaged in an affray - (assault);
(The aforementioned grounds of arrest are authorised by s42(1)).
• The owner, lawful occupier or person in charge of property on or in respect of
which any person is found committing any offence (any offence means not limited
to schedule 1 offence), and any person authorised thereto by such owner etc may
without a warrant arrest the person so found – s42(3).
• A private person’s power to arrest should be used sparingly and with great
circumspection. The tendency is for the courts to protect the liberty of the

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individual rather than the ability of the private person to arrest – Morapedi v
Springs Municipality 1946 TPD 105.

The private person’s duty to Arrest (s47(1)&(2))

As a general rule there is no obligation on a private individual to arrest someone.

The exception to this rule is that every male inhabitant of the Republic between the
ages of 16 and 60 is, when called upon by a police official to do so, is required to
assist such police official in arresting and detaining a person – s47(1). Failure to
render assistance is an offence punishable by a fine or imprisonment for a period not
exceeding three months – s47(2).

Special statutory powers for certain officials (s52)

Certain officials in terms of statutory law have the following powers of arrest:

• A parks officer in terms of the National Parks Act.

• An environmental inspector in terms of the Environmental Act 157 of 1998.
• An officer of a society for the prevention of cruelty to animals may arrest
without a warrant any person reasonably suspected of having contravened a
provision of the Animal Protection Act 71 of 1962, if there is reason to believe that
the ends of justice will be defeated by the delay in obtaining a warrant – s8(1)(b) of
Act 71 of 1962.
• If the commander of an aircraft in flight has reasonable grounds to believe that a
person on board the aircraft has done or is about to do any act which jeopardises
the safety of the aircraft or persons on board the aircraft or which in the opinion of
the commander is a serious offence under the law in force in the country in which
the aircraft is registered, the person may be detained for disembarkation or delivery
to a police or immigration officer – s6 of the Civil Aviation Act 3 of 2009
• Captain of a ship

d) Procedure After Arrest (s50)

• An arrested person must be brought to a police station, as soon as

possible, and placed in official police custody as soon as possible.
• Can be detained for a period not exceeding 48 hours.
• There are two periods of detention: (a) the period from arrest to arrival at the
police station; and (b) period after being brought to a police station. (a) is
governed by as soon as possible.
• Only police officers have the power of custody or detention (not private
individuals) (other than the first period).
• First appearance – suspect must be brought before a lower court at the
expiry of the 48 hour period.
• If the 48 hr period expires outside of ordinary court hours (9am to 4pm –
weekdays) or on a day which is not an ordinary court day (ie. weekends
or public holidays, the accused shall be brought before a lower court not later
than the end of first court day thereafter. (this requirement important for bail
applications – see below)
• The 48 hour period can be extended, for example if arrested on Wednesday
night after 4pm, can be extended over the weekend to Monday morning.
• The 48 hr rule can also be extended if the accused is outside the court’s
jurisdiction and in transit from one jurisdiction to another,

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• The 48 hr rule can also be extended if the accused is physically ill or

physically incapacitated. This extension must be justified by a prosecutor in
terms of a medical certificate adduced in court.
• Time period of 48 hours strictly observed, any further detention is illegal.
This is guaranteed by the Constitution s35(1)(d).
• At first appearance, either remanded into custody or released on bail or
warning.
• At first appearance need not plead, but must know the charge brought
against him.
• Unlawful arrest results in unlawful detention (and a claim for damages).
• Young persons cannot be kept in cells but at places of youthful detention
(see the Child Justice Act).
• Lawful arrest results in lawful detention. If the arrest and detention is
unlawful, the suspect may apply to the court to be released. Unlawful
detention does not affect the criminal liability of the suspect.

(f) JUSTIFIABLE USE OF FORCE TO EFFECT AN ARREST (s 49)

Section 49(1) and (2) of the CPA has been rewritten to conform to the constitution.
The parameters of the new s 49 are interpreted in the light of Govender v Minister of
Public Safety and Security 2001 (4) SA 273 (SCA) and the constitutional case Ex
parte: Minister of Safety and Security and Others In Re S v Walters and Another 2002
(4) SA 613 (CC).

The two seminal cases

Govender: Police chased after stolen car, occupant refused to stop, long chase
follows with the police firing warning shots, stolen car crashes and suspect attempts to
run away on foot, police fire warning shots at suspect and order him to stop running,
suspect does not stop running, police aim at his feet but bullet penetrates the spine
rendering the suspect paralyzed. Father of suspect civilly sues the minister for
damages.(Govender defines the test for the use of force as the reasonable and
proportional use of force).
Walters: Two bakers, father and son shoot at a suspect who has broken into their
bakery. The suspect is running away at the time of the shooting. The bakers are
charged with culpable homicide. (Walters sets out the use of deadly force
requirements – justifiable use of deadly force))

Other cases:
(The suspect must be aware of the intention to arrest him/her). In Basson 1961
(3) SA 279 (T), B, a constable, fired at night at a motor car he had signalled to stop,
and wounded one of the passengers. It appeared that the police had been informed of
two armed convicts who were fleeing in a stolen Chevrolet motor car. A Ford came
past at high speed, and did not react to B and other police officials’ signs to stop. B
then fired. According to the finding of the court, B did not have reasonable grounds to
think that the convicts could be in the Ford. In terms of a Transvaal Ordinance, it was
an offence for the driver of a motor vehicle to refuse or fail to stop if instructed to do so
by a police officer. The driver of the Ford therefore committed an offence in B’s
presence. The court held that under certain circumstances it would be lawful to shoot
at a motor car in order to arrest persons in that motor car, where the driver had
refused or failed to stop. According to the court however, there is no general power to
shoot. The court approved the view that to seriously assault the offender for this type
of offence, before he had been informed of the intention to arrest him, and without his
having offered resistance or attempted to escape, could not be justified. B was
therefore found guilty of assault with intent to commit grievous bodily harm.

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The use of force in effecting an arrest (s 49)

Section 49(1) is the definition clause and allows for an “arrestor” (as authorized by the
CPA) to arrest or assist in arresting a “suspect” (any person reasonably suspected
of having committed an offence or in the process of committing an offence).

Section 49(2) provides for the use of force (non-deadly and deadly) in effecting an
arrest in order to overcome a suspect’s resistance to arrest or the suspect’s flight from
an attempt to arrest.
(a) Reasonable Force is defined as such force as is reasonably necessary and
proportional in overcoming resistance or preventing the suspect from
fleeing. Non-deadly force is defined as force which is not reasonably likely
to cause death or serious injury. (Example: common assault or the firing of a
warning shot).
(b) Deadly force is defined as intended force or force likely to cause death or
grievous bodily harm or;
(i) force leading to death, (ii) is likely to cause death, (iii) force causing grievous
bodily harm, (iv) or is likely to cause grievous bodily harm to the suspect. The
test for deadly force is objective and is seen through the eyes of the reasonable
person and is not the subjective opinion of the arrestor. (Example: intentional
shooting at a suspect even if the shot misses, killing, wounding or serious bodily
harm including the use of police dogs to bit the suspect).

The test

(1) According to Govender the test to be used - was the force used to overcome
resistance or to prevent the suspect from fleeing reasonably necessary and
proportional in the circumstances. All the circumstances must be taken into
account and must balance the interests of society, the state, the suspect and
the police.
(For example) According to s13 of the SA Police Services Act 68 of 1995 –
minimum/reasonable force means when using a firearm to arrest – verbal
warning first – warning shot second- directed at the lower extremities to wound
as a last resort.
(2) According to Walters in addition to the Govender test, three additional factors
must be tested for in order to assess the justifiable use of deadly force.

The test requirements for the use of reasonable force - Govender

(1) The person arrested must be a suspect. The arrestor must have reasonable
suspicion that the suspect is committing or has committed any offence.
Reasonable suspicion does not require certainty.
(2) The arrestor must attempt to arrest the suspect.
(3) The suspect must be aware of the attempt to arrest him/her.
(4) The suspect must resist the attempt or flee or resist the attempt and flee and
the suspect cannot be arrested without the use of force.
(5) The arrestor may in order to affect the arrest use such force as is reasonably
necessary and proportional in the circumstances to overcome the resistance
or to prevent the suspect from fleeing. Reasonability and proportionality is
determined by the following factors”
(a) Degree of force used.
(b) The nature, seriousness and circumstances of the crime committed or of
which the suspect is suspected of having committed.
(c) The threat or danger posed by the suspect to the safety and security of the
arrestor or to others. The threat must be directed at the lives of the arrestors

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(i.e. police) or others on the scene of the crime or also directed at the safety
of these individuals and it is the duty of the police to protect themselves and
other members of society against dangerous criminals. (See Carmichele v
Minister of Safety and Security and another 2002 (1) SACR 79 (CC).
(d) Whether the force used was necessary, whether there were effective
alternatives, reasonably available to effect the arrest instead of using force.
(6) the arrestor must have the intention to arrest the suspect in order to bring
him/her to court.
(7) The intention of the arrestor must be to affect the arrest with non-deadly force
and not to kill the suspect or seriously injure the suspect in order to affect the
arrest.
The additional requirements for the justified use of deadly force (s 49(2) - Walter

In order to justify the use of deadly force the arrestor must comply with the first seven
requirements (use of force) and in addition the following requirements must also be
complied with:
(a) The intention of the arrestor must be to kill or seriously injure the suspect in
order to affect an arrest. The force must be directed at the suspect.
(b) The arrestor must in the circumstances justify the use of deadly force on the
following grounds:
§ The arrestor believed on reasonable grounds that the force was
immediately necessary for the purpose of protecting the arrestor, any
person lawfully assisting the arrestor or any other person from imminent or
future death or grievous bodily harm. This requirement is similar to the
common law defense of private defense/self defense, however there are a
number of important differences between the statutory s 49 use of deadly
force for defense and the common law private defense. (See note below for
the differences). (Problem with the term future danger – this term is
vague – how is a future danger to be evaluated) (Problem with the term
believes – the test should be objective not subjective as is suggested
by this term).
§ The arrestor must believe on reasonable grounds that there is a substantial
risk that the suspect will cause imminent or future harm or grievous bodily
harm if the arrest is delayed. The arrestor must reasonably suspect that the
suspect is a dangerous criminal and that if deadly force is not applied in
effecting the arrest, there is a substantial risk that the life or bodily integrity
of the arrestor or other persons is imminently threatened or will be threatened
in future. The risk is substantial when:
i) The suspect is suspected or convicted of violent crimes such as
murder, assault with intention to cause grievous bodily harm, robbery
with aggravating circumstances, rape and is either awaiting trial or has
escaped from prison.
ii) Where the arrestor is aware that the suspect is armed irrespective of
whether the crime is of a violent nature.
(c) The arrestor must believe on reasonable grounds that the offence for which the
arrest is sought is in progress and is of a forcible and serious nature and
involves the use of life threatening violence or there is a strong likelihood that it
will cause grievous bodily harm. (i.e. bank robbery)

Differences between the statutory s 49 and the common law private defense

Statutory s 49 requires (i) imminent or future threat, (ii) threat only to life and body, but
not property (iii) may defend oneself with a less harmful alternative.
Common law private defense requires (i) imminent or immediate threat but not future
threat, (ii) threat may be to life, body and property, (iii) must flee if possible.

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CHILDREN - See CJA summary – ARREST P5

(g) Escape From Lawful Custody (s51)

Escaping from lawful custody or an attempt thereto is a serious offence. S51 of the
Criminal Procedure Act provides that any person who, having been arrested and
being in lawful custody but not having yet been lodged in any prison, police cell or
lock-up, escapes or attempts to escape from such custody shall be guilty of an
offence. Any person who rescues or attempts to rescue from lawful custody any other
person who has been arrested, but is not yet lodged in any prison or similar place, or
who aids such person to escape, or who harbours or conceals or assists in harbouring
or concealing him, is likewise guilty of an offence.

(h) Other Methods For Securing Attendance At Trial

Written warning (s72)

If an accused is in custody in respect of an offence and a police official or a court may

release him on bail under ss59 or 60, the police official or court may in lieu of bail and
with regard to certain offences (cf s72(1)) release the accused from custody and warn
him to appear before a specified court at a specified time on a specified date. If the
accused is under the age of 18 years, he is placed in the care of the person in whose
custody he is, and such person is warned to bring the accused to a specified court on
a fixed date. A police official who releases an accused in terms of this section must,
at the time of the release of the accused, hand to him a written notice on which must
be entered the offence, the court before which and the time and date on which the
accused must appear.

Extradition

In terms of international law principles, the government of every sovereign state has
exclusive authority over everything happening within the borders of that state.
Consequently every state has the right to try crimes committed within its area of
jurisdiction. Generally speaking, it has no power to punish persons who have
committed crimes in the area of jurisdiction of another (foreign) state.

Therefore, where a person commits a crime in one state and flees to another state
and then fails to return of his own accord in an attempt to escape the consequences
of his act, the state where the crime was committed is powerless to act. Extradition
makes provision for such a person to be extradited to the state in whose area of
jurisdiction the crime was committed. In this manner criminals are prevented from
escaping liability.
States are not obliged to extradite criminals:
• An obligation to extradite can only come into being in terms of an agreement.
• A state may, however, if it deems it proper because of mutual ties of friendship, for
example, extradite a criminal to a foreign state on that state’s request.
Nevertheless a state will not easily extradite its own citizens, except in terms of an
agreement to do so.
• Extradition is only granted for serious crimes (double criminality – crime in both
countries).
• Extradition will not be granted for political crimes or for crimes with a death
sentence.
• Extradition will not be granted where an offence is autrefois convict/acquit

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CHAPTER 8: INTERROGATION, INTERCEPTION, BODILY FEATURES

1. GENERAL POWERS OF INTERROGATION

• Once the police become aware that a crime has been committed, an important part
of their investigation will consist in asking persons questions in order to obtain
information relating to the commission or alleged commission of the offence.
• The police do not need any special power to interrogate. Nothing prohibits the
police or anyone else from interrogating another person. There is no need,
therefore for any provision providing the police with special powers of interrogation.
• The need for special powers arises only when a person refuses to grant the
police access to someone they wish to interrogate, refuses to respond to
police questioning or answers the questions but refuses to furnish them with
his name and address in order to be subpoenaed to testify in court.
• It is necessary to point out that there is no general legal duty on persons to
furnish information that they may have concerning the commission of an offence to
the police (except for high treason).
• In discussing the special powers of the police with regard to the interrogation of
persons, it is necessary to distinguish between those powers of the police to
interrogate any person (irrespective of whether such person is a potential witness
or the person suspected of having committing the offence), and those powers that
may be exercised only with regard to possible witnesses or only with regard to
persons suspected of having committed offences.

2. SPECIAL POWERS OF INTERROGATION OF WITNESSES

Entry into premises to interrogate (ss26 and 27)

• In terms of s26 a police official may, in the investigation of an offence or alleged
offence where he reasonably suspects that a person who may furnish information
with regard to any such offence is on any premises, enter such premises without a
warrant for the purpose of interrogating such person and obtaining a statement
from him. There is, however, the proviso that a police official may not enter any
private dwelling without the consent of the occupier thereof.
• The reason for the proviso is to prevent a police official from entering a private
dwelling without having requested permission to do so. Such conduct may
amount to a serious infringement of the privacy of the residents inside such
dwelling (see s14 of the Constitution, quoted above). However, this once again
leaves open the possibility that the occupier of the dwelling may refuse the police
entry to the premises which may also hamper the police investigation.
• In terms of s27(1), a police official who may lawfully enter any premises under s26,
may use such force as may be reasonably necessary to overcome any
resistance against such entry to interrogate, including the breaking of any door or
window of such premises, BUT must first audibly demand entrance.
• In considering the powers provided for in s27, it is necessary to draw the attention
to s1 which contains a definition of the word ‘premises’. In terms of this definition,
‘premises’ refers not only to land or buildings but also to vehicles, ships and
aircraft.

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Obtaining the name and address of a person (s41)

In terms of s41(1) a peace officer is given the power to call upon:

a) any person whom he has power to arrest;
b) any person reasonably suspected of having committed any offence or of having
attempted to commit any offence (ie not only offences enumerated in the first
schedule of the code); and
c) any person who may, in his opinion, be able to give evidence in regard to the
commission or suspected commission of any offence, to furnish his full name and
address.
Furthermore, if such person refuses to furnish his full name and address, the peace
officer may forthwith arrest him. If the peace officer reasonably suspects that a false
name or address has been given to him, he may arrest such person and detain
him for a period not exceeding 12 hours until the name and address so
furnished have been verified.

The refusal by a person to furnish his or her name and address in the above-
mentioned circumstances and the furnishing of an incorrect or false address,
constitute offences and are punishable by a fine or imprisonment without the option of
a fine for a period of three months – s41(2).

Detention for the purposes of interrogation

In the case of certain serious offences, the legislature has empowered the police to
arrest persons and to detain them for the purposes of interrogation.
Note: These sections are an infringement of s12 (freedom and security) and the right
to a fair trial (s35(3)) of the Constitution, and will likely be struck down.

Interrogation of a suspect/accused
In pre-trail criminal procedure, the right to remain silent (set out in s35(1)(a) of the
Constitution) must be distinguished from the right not to be questioned. Suspects and
accused persons have the former right but not the latter. It was held in Gosschalk v
Rossouw 1966 (2) SA 576 (C) that once the police have lawfully obtained access to a
suspect (eg by virtue of lawful arrest or his permission) they may question him within
reasonable limits. He is not, however, obliged to answer these questions – Gosschalk
v Rossouw. No adverse inference may be drawn from his silence.

Note: The right to silence and the privilege against self-incrimination in s35 of the
Constitution. See also s10 (human dignity).

3. THE PROSECUTING AUTHORITY AND INTERROGATION

(S185 and 205) (S205 issue of summons)
Special powers are delegated to enable the prosecuting authority to summons
people to appear before a judge, magistrate or regional magistrate to answer
questions concerning the commission of a crime. Such a summons can be used
according to s205 to bring a person before a court. Naturally the person can
decide to cooperate with the state voluntarily, and if the person answers questions to
the satisfaction of the prosecutor or the DPP, then he/she no longer has to appear
before the court.

S205 is specially designed to compel a person to reveal his knowledge of an alleged

crime, which knowledge he has refused to disclose to the police. If such a witness
refuses to give the necessary information or refuses to answer the questions, the
court may, in a summary manner, enquire into such refusal or failure –s189. The

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witness is not obliged to answer self-incriminating questions, except where he has

been warned in terms of s204 (the immunity rule).

Note: s205 does not grant the prosecutor the right to cross-examination. The witness
is entitled to legal representation.

Special powers are also delegated to the prosecuting authority by virtue of s185
whereby a witness who, in the opinion of the DPP, would probably testify on behalf of
the state but is overcome by fear because his/her life is in danger, or a witness who
wants to take flight without giving evidence, can be placed in custody. In such cases
interrogation or further interrogation of the witness takes place in the prison or in a
place of safety.

4. INTERCEPTION OF PRIVATE COMMUNICATIONS

Legislation makes provision for the interception by third parties of private
communications (protected by s14 of the Constitution) between persons by post or
telephone where serious offences are concerned:
• A mandate from a judge is required. In Kidson 1999 (1) SACR 338 (WLD)
Cameron R warns of the need to guard against an ‘inappropriately extravagant
notion of privacy’ that takes the form of an unreasonably excessive protecting the
right to privacy
• The right to privacy is not violated if the private conversations of persons
between whom there is no particular tie of confidentiality, such as the
telephone conversations of an accused with an accomplice or suspect, are
intercepted with a tape recording. These exceptions provide that postal articles
which may further the commission of an offence may afford evidence of the
commission of an offence or may prevent the detection thereof, may be detained
and, in certain circumstances, be handed over to a public prosecutor.
• A judge may issue a mandate to a police official to intercept, examine, listen
to and record certain postal articles, telegraphic or telephonic
communications,
• The judge must be of the opinion that the interception is necessary to investigate
a ‘serious offence’ which cannot be investigated in any other manner.

5. DETERMINING BODY FEATURES

• S37 of the CPA regulates the obtaining of evidence through the following
means: finger-, palm-, and foot-printing; conducting identity parades;
ascertaining of bodily features; taking of blood samples and taking of
photographs.
• These types of body features are referred to a real physical evidence
• and may be taken against the will of the suspect
• In Huma 1996 (1) SA 232 (W), the court held that the taking of fingerprints does
not violate the accused’s right to remain silent or his right to have his
dignity being respected and protected.
• Only suspects or accused persons or convicted persons may be finger-,
palm- or foot-printed.
• Only medical or nursing staff may take blood samples.
• In terms of common law principles, samples of handwriting may also be taken.
• S37 must be balanced against s10 (dignity), s12 (privacy) and the protection
against degrading treatment, of the Constitution.
• Should the accused be acquitted all physical evidence must be destroyed

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CHAPTER 9 SEARCH AND SEIZURE

1. INTRODUCTION

The basic principle and rules concerning searches and seizures generally relate to
the KIND or OBJECT (s20 ARTICLES) which may be seized, the LAWFUL
REQUIREMENTS of searching and the DISPOSAL of seized objects. Searches and
seizures are usually done in terms of a warrant, but also exceptionally without a
warrant. A legal Search is also a justifiable infringement of s12 (freedom) and s14
(privacy) of the Constitution.

2. ARTICLES WHICH CAN BE SEIZED (s20 ARTICLES)

These are –
(i) articles which are concerned in or are on reasonable grounds believed to be
concerned in the commission or suspected commission of an offence, whether
within the Republic or elsewhere;
ii) articles which may afford evidence of the commission or suspected
commission of an offence, whether within the Republic or elsewhere; or
iii) articles which are intended to be used or are on reasonable grounds
believed to be intended to be used in the commission of an offence – s20.

Under normal circumstances an article or document falling into one of the

abovementioned categories may be seized by the state. The only exceptions relate to
documents which are privileged and in respect of which the holder of the privilege
has not yet relinquished his privilege. An example of this would be where the
document consists of a communication between an attorney/advocate and his client
(Professional Legal Privilege) - Sasol III (Edms) Bpk v Minister van Wet en Orde 1991
(3) SA 766 (T).

3. SEARCHES WITH A SEARCH WARRANT (s21)

Searches and seizures should, whenever possible, be conducted only in terms of a

search warrant, issued by a judicial officer such as a magistrate or judge (s21(1)

Discretion of Judicial Officer

In deciding whether there are reasonable grounds for the search, the judicial officer
exercises discretion similar to the discretions he exercises in granting bail, remanding
a case or sentencing an accused, etc. This discretion must be exercised in a judicial
manner. This simply means that he must exercise the discretion in an objective,
reasonable and regular manner, in accordance with the law and while taking all
relevant facts into account. A search warrant may be set aside on administrative
grounds such as mala fides or the judicial officer did not apply his/her mind – Ismael
v Durban City Council 1973 (2) SA 362 (N).

The issue and execution of a Search Warrant

A search warrant is usually issued by a magistrate, justice of the peace, judge or
judicial officer, if it appears:
• there are reasonable grounds for believing that an article (an article as defined
in s 20) is in the possession, or control of any person on the premises, or in
the area of the court’s jurisdiction.
• an application on oath.
• The s 20 article is reasonably required for evidence at a trial.

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A warrant is written out and in such a way as to specifically define the s 20 articles
to be seized, the premises to be entered and searched and the authority of the
police to do so.
A warrant will be interpreted strictly by the courts, so as to protect the individual
against excessive interference by the police.
A warrant is usually executed by day (unless it is stated in writing and good reason is
given why it must be executed by night). It may be issued and executed on a Sunday
and remains in force until executed or cancelled.
The suspect must be issued with a copy of the warrant (allowing him later to institute
an interdict or a claim for damages or rei vindicatio against the police).

Warrant in terms of s25

This warrant allows a search and seizure when –

• the internal security and maintenance of law and order in South Africa is
threatened (ie by holding a meeting, or on the planning of an offence).
A warrant issued in terms of s25(1) confers wide powers on the police. The fact that a
police official who acts in terms thereof may take any steps that he ‘consider[s]
necessary’ for the preservation of the internal security of the Republic or for the
maintenance of law and order or for the prevention of any offence,
• means that the police official’s discretion in this respect will have to be considered
subjectively.
The question will therefore not be whether the steps he took were really necessary,
but whether he subjectively thought that he had reason to believe that they were
necessary.

4. SEARCHES, SEIZURES WITHOUT A WARRANT

It is quite conceivable that circumstances may arise where the delay in obtaining a
warrant would defeat the object of the search. It is therefore necessary that provision
be made for the power to conduct a search without a warrant.
Police officer:
• a search warrant empowers only police officials to conduct searches and to seize
objects,
• only police officials are empowered to conduct searches or to seize s 20 articles
without a warrant.
• only a police officer may search a person without a warrant for s 20 articles

Private persons:
• in terms of s 23 a private person may only seize articles (but not search) from a
person after arrest of that person by the private person , and must immediately
hand that article over to a police officer.
• In terms of s 24 any private person who is lawfully in charge or occupation of
any premise and reasonably suspects that dangerous articles such as
intoxicating liquor, drugs, stolen stock, arms, explosives have been placed on
the premises may, if a policeman is not readily available, search the premises
and any person therein, seize and immediately deliver such articles to a police
official.

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POWERS OF THE POLICE TO SEARCH (without warrant)(sec 22)

1. Consent to search: the police may search any person, container or premise and
seize any object if the person concerned consents to the search and seizure
(s22(a)).
2. (i) a search warrant would have been granted if applied for, but (ii) the delay
caused by such an application would have defeated the object of the search
and resulted in the removal or destruction of the article. (s22 (b))
3. Border control: for the purposes of border control, the police can search persons,
premises, vehicles, vessels, ships, aircraft within the Republic (or within a
reasonable distance ± 10 km) (s13(6)); South African Police Service Act 68 of 1995
(SAPSA).
4. Cordoned off area: in order to restore public order or to ensure the safety of the
public, the police may cordon off an area and search and seize within the area. (s
13(7) SAPSA)
5. Roadblocks: reasonable search and seizures may be instituted at roadblocks. (s
13(8) SAPSA)

Police power of entry into premises to interrogate (ss26 and 27)

• In terms of s26 a police official may, in the investigation of an offence or alleged

offence where he reasonably suspects that a person who may furnish
information with regard to any such offence is on any premises, enter such
premises without a warrant for the purpose of interrogating such person and
obtaining a statement from him. There is, however, the proviso that a police official
may not enter any private dwelling without the consent of the occupier
thereof.
• The reason for the proviso is to prevent a police official from entering a private
dwelling without having requested permission to do so. Such conduct may
amount to a serious infringement of the privacy of the residents inside such
dwelling (see s14 of the Constitution, quoted above). However, this once again
leaves open the possibility that the occupier of the dwelling may refuse the police
entry to the premises which may also hamper the police investigation.
• In terms of s27(1), a police official who may lawfully (ie with or without a
warrant) enter any premises under s26 may use such force as may be
reasonably necessary to overcome any resistance against such entry, including
the breaking of any door or window of such premises.
• In considering the powers provided for in s27, it is necessary to draw the attention
to s1 which contains a definition of the word ‘premises’. In terms of this definition,
‘premises’ refers not only to land or buildings but also to vehicles, ships
and aircraft.

1. PROCEDURE

5.1 BREAKING IN TO AFFECT ARREST - knock and enter principle

In terms of s48, a peace officer or private person who is authorised by law to

arrest another in respect of any offence and who knows or reasonably suspects such
other person to be on any premises, may, if he first audibly demands entry into
such premises and states the purpose for which he seeks entry and fails to gain
entry, break open and enter and search such premises for the purpose of effecting the
arrest.

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5.2 SEARCH OF ARRESTED PERSON (s23)

On the arrest of any person, the person making the arrest may, provided that he is a
peace officer, search the person arrested and seize any article referred to in s20
which is in the possession or under the control of the arrested person. NB - a private
person may seize articles but does not have the power to search an arrested
person.

See also general requirements for the search of a person’s body in terms of s 29 –
search must be conducted with due regard for order and decency. A woman must be
searched by a woman police officer and if no woman police officer is present by a
woman designated for that purpose. A woman cannot consent to a body search by a
male.

5.3. USE OF FORCE TO CONDUCT SEARCH (s27) – no knock principle

In terms of s27(1), a police official who may lawfully search (ie in terms of a
warrant or in terms of the criteria of without a warrant) any person or any
premises may use such force as may be reasonably necessary to overcome any
resistance against such search or against entry of the premises, including the
breaking of any door or window of such premises. A police official shall first audibly
demand admission to the premises and state the purpose for which he seeks to
enter such premises - (the no-knock clause s27(2) applies only when the police are
reasonably certain that an article may be destroyed (ie drugs) and are not required to
give a warning before entering).

6. UNLAWFUL SEARCHES (s 28) – the exclusionary principle

i) S28 states that a policeman commits an offence where he acts contrary to the
authority of a search warrant. A person who has been damaged as a result of
an unlawful search may apply to court for compensation.
ii) In terms of s35(5) of the Constitution, (Unconstitutionally obtained evidence) -
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.

This so-called ‘exclusionary rule’ gives a clear signal to all state officials that it is
futile to gather evidence in an unlawful manner, since evidence so obtained will not be
taken into account by the court in reaching a verdict.

7. THE PURPOSE OF SEARCH WARRANTS – the no difference principle

S v Mkhize 1999 (2) SACR 632 (WLD)

In this appeal case the matter at issue was whether a pistol found in the locker of the
accused after the police had forcibly opened the locker without a warrant should be
excluded as evidence that was obtained unlawfully:
‘It seems to me that the provisions of the Act [the reference is to ss22 and 21 of
the Criminal Procedure Act] relating to the obtaining of search warrants are there
not for the purposes of ensuring the fairness of a trial of an accused person
but to protect the ordinary law-abiding citizens of our land from an abuse of
the formidable powers which the police necessarily have’.

On the discovery of evidence found in good faith but with a failure to comply with
legal requirements of a warrant, the judge remarks further:

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‘Even if steps had been taken properly to obtain a search warrant, nothing
the appellant could lawfully have done would have prevented the discovery
of the pistol. The ‘no difference’ principle then becomes relevant. … It
would, in my view, make a mockery of our law of criminal procedure to hold that
evidence stumbled upon in the search for evidence in another case would, for this
reason, be held to be inadmissible against the present appellant’.

8. DISPOSAL OF SEIZED ARTICLES (s30-36)

Normally such an article will be kept in police custody and, if required for criminal
proceedings, will be handed to the clerk of the magistrate’s court or registrar of the
High Court for safe custody.

At the conclusion of the criminal proceedings, the presiding judicial officer must make
an appropriate order in respect of the disposal of the article (cf s34(1)) – eg that it
should be returned to the person entitled thereto, or that it be forfeited to the state.

• If no criminal proceedings are instituted in connection with a seized article, or if it

appears that such an article is not required for purposes of evidence or for
purposes of an order of court, the article shall be returned to the person from whom
it was seized (if he may lawfully possess it) or, if he may not lawfully possess it, it
shall be returned to the person who may lawfully possess it – s31(1)(a).
• If no person may lawfully possess the article or if the police do not know of any
person who may lawfully possess it, the article is forfeited to the state – s31(1)(b).
• A person who may lawfully possess the article, must be notified that he may take
possession of the article and if he fails to take delivery thereof within 30 days, it
shall be forfeited to the state – s31(2).
• If the owner of a stolen object which has been seized fails to lay claim to it after he
has been informed of its recovery, he has to be considered to have abandoned his
rights of ownership.
• After the conviction of an accused, the court has, in terms of s35(1) and in certain
circumstances, the power to forfeit to the state certain objects which were used in
the commission of the particular crime.
• Prevention of Organised Crime Act 12 of 1998, allows for three types of orders
on behalf of the state,
(i) confiscation order, in order to pay over to the state all the benefits of crime,
(ii) preservation order, which prevents a suspect from using property involved in
the commission of a crime while the crime is being investigated,
(iii) forfeiture order to the state, follows a preservation order when a crime has
been successfully prosecuted.

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CHAPTER 10 BAIL AND RELEASE

1. INTRODUCTION

After a person suspected of committing a crime has been arrested, it could take a long
time before his/her trial commences for various reasons. For example, the
investigation into the crime undertaken by the police may not be complete when the
arrest is made. Moreover, the trial itself may extend over several months,
particularly where a large number of witnesses have to testify. If the suspect must
remain in custody until his/her trial is concluded, his incarceration may extend over a
long period.

The basic principles of bail (s58):

• the accused is released on payment of security or guarantee

• the accused must appear at place and time of trial
• the bail release lasts until the court’s verdict
• Certain conditions are attached to bail and a failure to adhere to these conditions
results in forfeiture of bail (i.e. failure to appear in court). Conditions include
reporting to police station at regular intervals, no contact with state witnesses, etc
• Bail is non-penal in character; the security required should not be in the form of a
punishment. It is designed to ensure the attendance of the accused at trial.
• Each bail application considered on its merits
• The accused must be informed of the right to apply for bail.

2. THE CONSTITUTIONAL RIGHT TO BAIL – a compromise principle

The constitutional right to bail is based on a compromise principle – in determining

whether to grant bail or not – a balance must be struck between the constitutional
rights of the accused and the interests of justice/society and public order.

Release from custody by way of bail or other means is guaranteed in the

Constitution (s35(1)(f)) as a right, but it is subject to the qualification that a prisoner
may only be released if it is in the interest of justice to do so. Bail is the
compromise whereby, in considering the rights of the accused (ie the right to
freedom and the right to be deemed innocent until the contrary has been proved), and
the public interest to ensure that criminals do not walk freely about the streets after
they have been apprehended, the rights of the accused are curtailed as little as
possible. Bail serves both the public interest in the sense that the capacity of
crowded prisons is not placed under further strain and that households are not
unnecessarily deprived of breadwinners, as well as the freedom interest of the
accused. Because bail is a compromise between two competing interests, it may
never assume the character of punishment in law, nor may it be used as a mechanism
of negotiation between the state and the accused.

The constitutional right to bail and the interests of justice are balanced by reference
to the following requirements:
• Everyone who is arrested for allegedly committing an offence has the right to be
released from detention if the interests of justice permit, subject to reasonable
conditions – s35(1)(f) of the Constitution. In the Constitutional Court case S v
Dlamini; S v Dladla & others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) –
and hereafter cited as ‘Dlamini etc’
• An accused is, in the absence of a conviction by a court of law, also constitutionally
presumed to be innocent. See s35(3)(h) of the Constitution. There is an obvious

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area of tension between this presumption and deprivation of liberty pending the
verdict of a court of law. Bail is a method of securing a compromise. (Acheson
1991 (2) SA 805 (Nm).
• It has been said that the purpose of bail is to strike a balance between the
interests of society (the accused should stand his trial and there should be no
interference with the administration of justice) and the liberty of an accused (who,
pending the outcome of his trial, is presumed to be innocent).
• The legislature has determined that the refusal to grant bail shall be in the interests
of justice where one or more of the grounds referred to in s60(4)(a) to s60(4)(e) are
established (see the discussion of s60(4) below).
• The whole issue turns on what is in the best interests of justice. Obviously, it is
not in the best interests of justice to grant bail to an accused who will not stand his
trial or who might otherwise abuse his liberty pending verdict, for example, by
intimidating state witnesses. However, it must be appreciated that it is also not in
the best interests of justice to refuse bail to an accused who will stand his trial and
who will not otherwise interfere with the administration of justice.

CHILDREN - See CJA summary – BAIL (s25) P7

3. RISKS AND FACTORS TO BE TAKEN INTO ACCOUNT WHEN

CONSIDERING BAIL

In Pineiro 1992 (1) SACR 577 (Nm), Frank J cited five main risks which the courts
had to address in the exercise of their discretion to grant or refuse bail:

a) The main question is will the interests of justice be prejudiced if the accused is
granted bail? The same question applies vice versa, will the interests of justice
be prejudiced if the accused is refused bail?
b) Four subsidiary questions arise:
- if released on bail, will the accused stand trial?
- Will he/she interfere with state witnesses or the police investigation?
- Will he/she commit further crimes?
- Will release be prejudicial to the maintenance of law and order and the security
of the state?

THE FACTORS: S60(4)a-e read with s60(5)-(9)

In S v Dlamini and others, the Constitutional Court provided a checklist by
establishing five factors whereby it is justified to refuse bail. These factors are set out
in s60(4) and are then evaluated in conjunction with the various guidelines set out in
s60(5)-(9).

S60(4)(a)-(e) factors
The interests of justice do not permit release when one or more of the following
grounds is established:

a) Where there is the likelihood that the accused, if he or she were released on bail,
will endanger the safety of the public or any particular person or will commit a
Schedule 1 offence;
b) Where there is the likelihood that the accused, if he/she were released on bail,
will attempt to evade his/her trial;
c) Where there is the likelihood that the accused, if he/she were released on bail,
will attempt to influence or intimidate witnesses or to conceal or destroy
evidence;

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d) Where there is the likelihood that the accused, if he/she were released on bail,
will undermine or jeopardise the objectives or the proper functioning of the
criminal justice system, including the bail system;
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(4)(a) read with s60(5)

Endangering the safety of the public must be considered against the following
factors in s60(5)a-h:
- the degree of violence to others implicit in the charge against the accused
(s60(5)(a));
- any threat of violence which the accused may have made to any person
(s60(5)(b));
- any resentment the accused is alleged to harbour against any person (s60(5)(c));
- any disposition to violence on the part of the accused as proved by past conduct
(s60(5)(d));
- any disposition to commit offences referred to schedule 1 as proved from past
conduct (s60(5)(e));
- the prevalence of a particular type of offence (s60(5)(f));
- any evidence of previous offences referred to in schedule 1 while released on bail
(s60(5)(g));
- any other factor which should be taken into account (s60(5)(h)).

Bail can properly be refused if the court is satisfied that an accused has a propensity
to commit the crime with which he is charged and that he might continue to
perpetrate such crimes if released on bail – Patel 1970 (3) SA 565 (W). this approach
must be understood in the light of what was said by Cooper J in Peterson 1992 (2)
SACR 52 (C) at 55E-F, namely that the purpose of granting bail to an accused is to
minimize interference in his lawful activities and, accordingly, if there is a risk of a
repetition of the same criminal conduct if the accused were released on bail, the
‘interests of society outweigh the rights of the lawless individual’.

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

Evading trial must be considered against the following factors in s60(6):
- the emotional family, community or occupational ties of the accused to the place at
which he/she is to be tried (s60(6)(a)).
- The assets held by accused and where such assets are situated (s60(6)(b)).
- The means and travel documents held by the accused (s60(6)(c)).
- The extent, if any, by which the accused can afford to forfeit the amount of bail
(s60(6)(d)).
- The question whether the extradition of the accused can readily be effected should
the accused flee across the border (s60(6)(e)).
- The nature and gravity of the charge (s60(6)(f)).
- The binding effect and enforceability of bail conditions which may be imposed and
the ease of breaching such conditions (s60(6)(i)).
- Any other factor (s60(6)(j).
(S v Letaoana 1997 (11) BCLR (W).

S60(4)(c) read with s60(7)

Influence or intimidate witnesses considered against the following factors in s60(7):
- The fact that the accused is familiar with the identity of the witness and with the
evidence that the witness will bring against him/her (s60(7)(a)).
- Whether the witnesses have already made statements and agreed to testify
(s60(7)(b)).

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- Whether the investigation against the accused has already been completed
(s60(7)(c)).
- The relationship between the accused and the witness and the extent of possible
influence or intimidation (s60(7)(d)).
- How effective and enforceable bail conditions prohibiting communication between
the accused and the witness is likely to be (s60(7)(e)).
- Whether the accused has access to evidentiary material which is to be presented
at trail (s60(7)(f)).
- The ease with which the evidentiary material may be concealed or destroyed
(s60(7)(g)).
- Any other factor (s60(7)(h)).

In Hlongwa 1979 (4) SA 112 (D) it was held that bail for an accused can be refused:
• ‘if, on all the evidence, there is a reasonable possibility that he would tamper
with one or more state witnesses if he were released’.
• In assessing this risk, the court may take into account the relationship between
the accused and prosecution witnesses (Ex parte Taljaard 1942 OPD 66),
• whether or not the accused is aware of the identity of state witnesses or the
nature of their statements (Acheson (above) at 822),
• whether or not any bail condition preventing communication between state
witnesses and an accused can effectively be policed (Acheson above) at 822),
whether or not state witnesses have been threatened by the accused (Ex parte
Nkete 1937 EDL 231)
• and, further, the nature of the accused’s criminal record, ‘particularly if it includes
a conviction for defeating or obstructing the ends of justice by tampering with a
state witness’ – Hlongwa (above) at 113H.

In Bennett 1976 (3) SA 652 (C) Vos J formulated the following test for purposes of
determining the presence or absence of a reasonable possibility of future interference
(at 655G-H, emphasis in the original):

‘[A]s [the] applicant has thus far interfered with the investigation, the proper approach
should be that, unless the state can say that there is a real risk that he will, not merely
may, interfere, there does not appear…to be a reasonable possibility of such
interference’.

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

Jeopardise the objectives or the proper functioning of the criminal justice
system considered against the following factors in s60(8):
- The fact that the accused knowing it to be false, supplied false information at the
time of arrest (s60(8)(a)).
- Whether the accused is in custody on another charge, or whether on parole
(s60(8)(b)).
- Any previous failure of the accused to comply with bail conditions or any indication
that the accused will not comply with bail (s60(8)(c)).
- Any other factor (s60(8)(d)).

S60(4)(e) read with s60(8A) (SHOCK AND OUTRAGE)

Disturb public order or undermine public security considered against the following
factors in s60(8A):
- Does the offence induce a shock or outrage in the community (s60(8A)(a)).
- Whether the shock/outrage might lead to public disorder if the accused is released
(s60(8A)(b)).
- Whether the safety of the accused may be jeopardised by release (s60(8A)(c)).

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- Whether the sense of peace and security amongst the community will be
undermined by release (s60(8A)(d)).
- Whether release will undermine public confidence in the criminal justice system
(s60(8A)(e)).
- Any other factor (s60(8A)(f)).

S60(9): The Interest of Justice and the Personal Freedom of the Accused
The court must weigh the interests of justice against the accused’s right to personal
freedom and the prejudice the accused may suffer if bail is refused. S60(9) requires
the following factors to be considered:
- The period for which the accused has already been in custody since arrest
(s60(9)(a)).
- The probable period of detention until the conclusion of the trial (s60(9)(b)).
- The reason for any delay in the conclusion of the trial and any fault on the part of
the accused for such delay (s60(9)(c)).
- Any financial loss which the accused may suffer owing to his/her detention
(s60(9)(d)).
- Any obstacle to the preparation of the accused’s defence or delay in obtaining legal
representation which may be brought about by the detention of the accused
(s60(9)(e)).
- The state of health of the accused (s60(9)(f)).
- Any other factor (s60(9)(g)).

S60(9) ‘implies a proportionality test; the likely harm must be weighed against
the deprivation of liberty’. Continued incarceration would manifestly be prejudicial to
the accused, but must be weighed against other factors such as the likelihood of the
accused absconding and the ease with which stringent bail conditions might be
evaded. See Thornhill (2) 1998 (1) SACR 177 (C) at 184d-f. If the prosecution has
failed to show a likelihood of one or more of the grounds contemplated in s60(4)(a) or
s60(4)(e), the provisions of s60(9) will rarely be of assistance to the prosecution
because the latter section mentions factors favouring the accused – Tshabalala 1998
(2) SACR 259 (C).

Additional Factors (pending an appeal or conviction)

In an application for bail pending appeal against conviction or sentence, the absence
of reasonable prospects of success on appeal may justify refusal of bail – Beer
1986 (2) SA 307 (SE).
However:
• bail ought not to be refused lightly on the sole ground of absence of prospects of
a successful appeal – Ndlovu 1999 (2) SACR 645 (W).
• It has been suggested that where there is no risk of an accused absconding and
the appeal is against sentence only, the test should merely be whether ‘the
appeal against sentence is reasonably arguable and not manifestly doomed to
failure’ – Anderson 1991 (1) SACR 525 (C) 527E.
• There is merit in this suggested lesser test where sentence is concerned, as
success on appeal can be a hollow victory if the accused has started serving a
prison sentence which is eventually reduced or wholly suspended on appeal.
• In Makaula 1993 (1) SACR 67 (Tk) it was held that an application for bail pending
an appeal against sentence should generally be granted where the accused has
been sentenced to less than one year’s imprisonment.

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Amount of Bail

An excessive sum which, practically speaking, amounts to a refusal of bail, should not
be fixed – Shaban 1965 (4) SA 646 (W):
• The guideline is to fix bail at an amount that cannot only be paid, but will make
it more advantageous to the accused to stand his trial rather than flee and
forfeit his money – Du Plessis 1957 (4) SA 463 (W).
• Accordingly, there must be a careful investigation of the means and resources
of the accused, especially in the absence of legal representation – Mohamed 1977
(2) SA 531 (A).
• Individualisation is important – Visser 1975 (2) SA 342 (C). The court is entitled to
fix a high amount of bail where the accused is clearly a man of vast financial
resources (Stanfield 1997 (1) SACR 221 (C) 234F).

Other Irrelevant Factors

In deciding a bail application, a court should ignore an accused’s threat to continue his
hunger strike if bail is refused – Veenendal v Minister of Justice 1993 (1) SACR
154 (T). The fact that an accused may receive indemnity from prosecution on the
basis of an agreement between the government and political bodies, is also irrelevant
in determining bail – Lukas 1991 (2) SACR 429 (E).

RELEASE OTHER THAN ON BAIL

i) Release of juveniles

CHILDREN - See CJA summary – RELEASE & PLACEMENT P 6

ii) Release on warning (s72)

An accused may be released by the court or a police official and warned to appear
before a specified court at a specified time and date. The accused’s release does not
depend on the deposit of money or certain conditions. This procedure is followed with
lesser offences where there is no reason to expect that the accused will abscond or
try to evade justice. S72A makes provision for the cancellation of release on warning.
The grounds for cancellation are similar to those which apply in respect of cancellation
of bail.

4. THE GRANTING OF BAIL

a) Police Bail (s59(1) and (2)) (before first appearance)

In terms of s 59 an accused who is in custody in respect of any offence, other than

an offence listed in part II and part III of schedule 2, may be released on bail by a
police officer. However such sfter-hours police bail must be -
• Granted by a police official over the rank of non-commissioned officer.
• Only for relatively trivial offences.
• Only in narrowly prescribed circumstances and only before the first court
appearance of the accused.
• Only cash payments will be accepted and no guarantees or security can be
attached to police bail.
• No conditions may be attached to the granting of police bail (s62 discretionary
conditions)(see below).
• Police bail may be amended by the court.

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• The accused must be able to communicate with legal representative or family in

order to obtain the cash amount.

(b) BAIL BY THE PROSECUTION (DPP) (S59A(1)-(3))

‘Prosecution bail’ may only be granted in the case of Schedule 7 offences, which
exclude grave offences such as murder and rape, but include serious offences such
as public violence, robbery (except robbery with aggravating circumstances), fraud or
forgery where the amount involved is lower than R20 000.

Both the powers of the DPP or the authorised prosecutor in this regard, differ to some
extent from those for police bail;
• The prosecutor or DPP, in consultation with the investigating officer, may
authorise bail;
• guarantees and cash amounts are acceptable as means of payment;
• that bail conditions may be made by the DPP or prosecutor;
• and that the prosecution bail extends up to and including the first court appearance
of the suspect/accused.
• At this appearance the court reconsiders the bail granted by the DPP or
prosecutor, with the result that bail can be extended on the same or amended
conditions, or the court can consider the court application in accordance with the
powers vested in the court in virtue of s60.

(c) BAIL BY THE COURT (S50 and s50(6))

COURT PROCEDURES IN RESPECT TO A BAIL APPLICATION:

(1) What forum has jurisdiction or legal competence to hear a bail application?
• Any court where the accused appears in court for the first time before his/her trial
has jurisdiction (ie any lower court or a High Court) but mostly bail will be heard
in a magistrate court.
• A High Court has inherent jurisdiction to grant bail, thus such a court can hear an
application for bail pending an appeal to the Supreme Court of Appeals.
• Court may postpone a bail application for up to 7 court days.
(2) The onus in a bail application:
• An ordinary bail application is an inquiry into the granting of bail. There is no
specific onus on one or the other party. As a matter of convenience the
prosecution will begin in terms of an evidentiary burden.
The exception:
• In terms of s 60(11)(a), very serious offences (schedule 6 offences) (which
include murder, rape, armed robbery and vehicle hijacking), it is difficult for an
accused to get bail. The accused bears a full reverse onus to show that
exceptional circumstances exist justifying a release on bail. The
prosecution is obliged to oppose schedule 6 applications, and must give
reasons for not doing so. (s60(2)(d))
• In terms of s 60(11)(b) for Schedule 5 offences, (robbery with aggravating
circumstances, drug-dealing, arms-dealing, corruption, fraud, theft or forgery of
large amounts of money) the reverse onus will be on the accused to prove
that it is in the interests of justice that he/she should get bail.
• Bail applications for Schedule 5 or 6 crimes will only be heard in Regional Mag
Courts. These applications can also not be heard outside of court hours
(in other words, there is no night court). Bail can also be refused when an
offence has caused community outrage although this can only happen in
exceptional circumstances.

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• Finally, a person accused of Schedule 5 or 6 offences must disclose all

previous convictions and outstanding charges against them at the bail
application.
• If an accused has previously been convicted of a schedule 5 offence, and is
later arrested and charged with another schedule 5 offence, then for purposes
of a bail application the schedule 5 offence will be increased and treated as
a schedule 6 offence.

(3) The basic rules for determining bail:

• Rule 1 – no ‘after hours’ bail (there should be no applications for bail outside
ordinary court days or outside court hours 9:00 – 16:00 hrs) – (s50(6)(b));
• Rule 2 – there are two exceptions to rule 1:
Ø (s59) police bail may be granted after hours for all schedule 3 (part I)
offences but not for part II and part III offences, except where some of
those offences are for less than R 2500;
Ø (s59A) prosecutorial bail may be granted after hours for all schedule 7
offences.
• Rule 3 – no ‘after hours bail’ for schedule 1; schedule 2 (part II & III), schedule
5 and schedule 6 offences. Bail applications for these schedules of offences
must be applied for during court hours 9:00 -16:00. Because of the reverse
onuses set out above it is very difficult to be granted bail for these serious
offences.
• Note – in respect to schedule 3 minor offences, there is usually no arrest for
these offences and therefore no need for bail – payment of fine is sufficient.

(4) The role of the court in a bail application:

The court has a proactive role in hearing a bail application:
• A court hearing a bail application should not act as a ‘passive umpire’. (The
Constitutional Court decision in Dlamini).
• If the question of the possible release of an unrepresented accused on bail is not
raised by the accused or the prosecutor, the court should inform the accused
about the right to bail – s60(1)(c). (Ngwenya 1991 (2) SACR 520 (T)).
• The court may in terms of s60(2):
Ø Acquire in an informal manner the information it needs to make a decision
on bail.
Ø The court may require the prosecution or the accused, as the case may be, to
adduce evidence.
Ø The court may require the prosecution to give evidence as to why it is not
opposing bail.
Ø If the court lacks evidence to reach a decision the court may order that
evidence to be placed before it.
Ø The court may take on an inquisitorial role.
• The prosecutor cannot be passive in bail applications: In Mauk 1999 (2) SACR
479 (W) the court also addressed the role of the prosecutor and decided that the
court will not allow the state to assume a passive role in bail applications in the
hope that the accused will be unable to cope with the burden of proof or disproof
concerned in the case.
• The state must give the accused a reasonable chance to handle this matter,
for example by granting access to the police dossier. (However, note the
provisions of s60(14) which provide the opposite).
• According to s60(14) the prosecution may deny the accused access to certain
parts of the police docket during a bail application where the accused has been
found guilty of a previous schedule 5 or 6 offence. (Note that in S v Shabalala

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1995 (2) SACR 761 (CC)) the prosecution cannot deny the accused access to the
police docket for trial purposes.
• However, in Josephs 2001 (1) SACR 659 (C) it was said that even though
s60(14) vests a discretion in the prosecutor to disclose information or material in
the docket, it is not an unfettered discretion: S60(14) cannot be used to deprive a
bail applicant of the reasonable opportunity to adduce evidence or make
appropriate submissions in support of his application.
• The strict rules of evidence are relaxed for a bail application. All relevant
evidence (including hearsay) will be admissible (i.e. character evidence, opinion
evidence etc).
• All previous convictions must be admitted in a bail application.
• The bail record is admissible at trial and the accused must be warned that any
evidence given at a bail hearing can be used against him at the main trial.
However inadmissible evidence will be excluded at trial.

(5) Financial inquiry into bail:

In terms of s 60(2)(b)(a) a magistrate must make two separate inquiries in a bail
application:
(a) Is the accused eligible for bail in terms of the five factors set out in s 60(4) (a)-
(e) and s 60(9);
(b) If these factors are satisfied and bail is granted a separate financial inquiry
must be held into how much bail in money must be imposed

(6) Who has locus standi to appeal against a bail decision?

S65(1)(a) states that the accused may appeal:
An accused who considers himself aggrieved by the refusal of a lower court to grant
bail or by the imposition by such court of a condition of bail, including a condition
relating to the amount of bail money and including an amendment or supplementation
of a condition of bail, may appeal against such refusal or the imposition of such
condition to the High Court having jurisdiction or to any judge of that court if the
court is not then sitting.

S65A(1)(a) states that the DPP may appeal:

A DPP may appeal to the High Court against the decision of a lower court to
release an accused on bail or against the imposition of a condition of bail –
s65A(1)(a). A DPP may also appeal to the Supreme Court of Appeal against the
decision of a superior court to release an accused on bail – s65A(2)(a). In both
instances the court hearing the appeal may order that the state should pay the
accused concerned the whole or any part of the costs which the accused may have
incurred in opposing the appeal. In the event of a successful appeal against release
on bail, the court which heard the appeal shall issue a warrant for the arrest of the
accused – s65A(3).

5. BAIL CONDITIONS

S58: Essential conditions of bail

• The accused must appear at time and place appointed for trial.
• The bail release shall continue until a final verdict is reached by the court, or a final
sentence is imposed.
• Bail may be revoked under certain circumstances.
• A sum of money is payable or a surety may be given.

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S62: Discretionary conditions of bail

The court may impose further discretionary conditions on bail with regard to the
following:
• With regard to the reporting in person by the accused at any specified time and
place to any specified person or authority;
• With regard to any place to which the accused is forbidden to go;
• With regard to the prohibition of or control over communication by the accused with
witnesses for the prosecution;
• With regard to the place at which any document may be served on him under the
Act;
• Which, in the opinion of the court, will ensure that the proper administration of
justice is not placed in jeopardy by the release of the accused.

Practical examples of such discretionary special bail conditions are that the accused
must report to a specified police station once or twice a day, or that he must hand his
passport over to the police, or that he may not leave a specified magisterial district
without informing the police official charged with the investigation of the case. (Good
examples of such conditions can be found in Ramgobin 1985 (4) SA 130 (N) 132, De
Abreu 1980 (4) SA 94 (W) at 101 and Pineiro (1) 1992 (1) SACR 577 (Nm) at 581).

In terms of s62(f) a court may also add a condition that the accused be placed under
the supervision of a probation officer or a correctional official.

Bail must also be (1) practically feasible, (2) neither vague nor ambiguous, (3) not
ultra vires or contra bonos mores.

6. CANCELLATION OF BAIL

• Failure to observe bail conditions: The prosecutor may bring evidence

before the court to cancel bail. If the accused is not present at the hearing to
cancel bail, he may be arrested and brought before the court. If the court finds
that the accused failure is his fault cancel bail and forfeit the money. No appeal
against cancellation is possible.
• Failure to appear at trial: The court may cancel bail provisionally and order
the arrest of the accused. If, within 14 days, the accused cannot satisfy the
court for failure to appear the cancellation and forfeiture of bail becomes final.
• The state can apply to cancel bail: If the state acquires information that the
accused is about to evade justice or is interfering or threatening witnesses, or
poses a risk to public security, ask the court to issue a warrant cancelling bail
and committing the accused to prison. Similarly, if the accused indulges in
further criminal actions or has not disclosed a true list of past criminal
convictions;
• Cancellation at request of the accused: An application by the accused the
court can cancel and refund the money;
• Any person who infringes bail conditions: Whether essential or
discretionary shall be guilty of an offence (and imprisonment not exceeding
one year).
• Forfeiture of bail asset: Shall be attached by ordinary civil procedure except
where it subjects the sureties to undue hardship.

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CHAPTER 12 - INDICTMENTS AND CHARGE SHEETS

1. LODGEMENT AND SERVICE OF INDICTMENTS AND CHARGE

SHEETS

Introduction:

§ (Indictment – High Court) (charge sheet – magistrate’s court)

§ S32 of Constitution: Everyone has the right of access to any information
held by the state and any other person and that is required for the exercise
of protection of any rights.
§ Thus, accused is entitled to access all documents in the police docket
(Shabalala v Attorney-General). (Except in terms of the Promotion of Acces
to Information Act s 39 – where a state official may refuse access if it is
prejudicial to the police investigation).
§ The accused has the right to be informed of the charge with sufficient
detail to answer it (s35(3)(a) of Constitution) (Petersen 2003).
§ First Golden Rule: Indictment/charge sheet should inform accused in
clear,and unambiguous language of the nature of the charge to be met (S
v Pillay).

In Superior Courts (s 144):

§ Having decided to indict accused, the DPPdraws up the charges

andlodges awritten indictment with the registrar of the High Court, who
will hand it over to a designated officer to serve on the accused.
§ S144: The indictment contains:
Ø The charge sheet against accused (the offence the accused is alleged
to have committed);
Ø Date and place of offence;
Ø Personal particulars of accused;
Ø Asummary of the essential facts of the case is attached to the
indictment (unless the summary will be prejudicial to the administration
of justice or the security of the state) (Mpetha 1981);
Ø A list of names and addresses of persons the DPP intends calling as
witnesses (unless DPP believes that the witnesses may be intimidated
or tampered with).
§ The state is not bound by the summary of facts and can lead evidence
which contradicts it.
§ The indictment (together with notice of trial) must then be served on
accused at least 10 days before the date of the trial, unless accused
agrees to a shorter period.

In Lower Courts (s 76):

§ S76(1): a written charge sheet is drawn up by a prosecutor and is lodged

with the clerk/registrar of a district/regional court, but unlike the indictment,
the charge sheetis not served on accused but is presented to the
accused in court.

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§ Accused is usually brought to court on written notice by summons or under

arrest.
§ The summons must be served at least 14 court days before the date of the
trial, but no such time limit applies to the charge sheet.
§ Usually the summons will have the written charge sheet attached to the
summons when it is served on the accused, but in practice this is only done
for minor offences or where the investigation is complete.
§ For serious offences, or where the investigation is incomplete, the
prosecution will request postponements from the courtfor further
investigation, and the charge sheet is usually handed to the accused at one
of the postponed hearings or even in some cases on the day of the
trial;
§ If this is insufficient time for accused to prepare his/herdefense the court
may grant a further postponement at the request of the accused.

2. FORM AND SUBSTANCE OF CHARGES AND INDICTMENTS

Necessary averments in the charge sheet (s 84)

§ A charge sheet should be as simple as possible (Rautenbach 1991).
§ S84(1): The relevant offence should be set out in the charge sheet in such a
manner that accused is sufficiently informed of the nature of the charge
against him (i.e. all the elements should be includedand the charge sheet
should disclose a clear offence).
§ More specifically, the charge sheet should include:
Ø All the elements of the offence (a description of the act is not required -
s 91);
Ø The time and place of the alleged offence;
Ø The person against whom and property in respect of which the offence
was allegedly committed.
o For example: “The accused (Mr XXX) is guilty of murder in that on or
about 1August 2014, at 11h00hours, and at or near Honey Street in the
district ofRandburg, the accused did intentionally and unlawfully kill John
Smith, an adult male”.
Ø If accused is charged with a statutory offence, the words of the
statutorysection which defines the crime, or similar words, must
beclearly set out in the charge sheet.
Ø Accused’s previous convictions cannot be set out in a charge – s89).

The Element of “time”:

§ S92(1): If time is not an essential element of the offence, a failure to refer
to it will not render the charge defective.
§ S92(2): If the wrong time is alleged in charge and it is not essential to the
offence, then as long as the correct time is within three months of the wrong
time set out in the charge sheet, the state can adduce evidence to prove the
corrected time at trial.
§ S 93: However where the time element is essential; i.e. where an accused
raises an alibi as a defense, and the court believes that accused would be
prejudiced in its defense if the time element is missing from the charge
sheet, then the time element must be clearly and precisely set out in the
charge sheet.

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The Element of “place”:

§ The place where the crime was committed may be essential. (i.e some
crimes can only be committed in a public place such as – reckless and
negligent driving, or drunk driving).
§ In such cases, the charge will be defective if it does not allege the offence
was committed in such a place.

The mental element:

Where it is an essential feature of an offence that it be committed in

circumstances showing a particular mental attitude (animus) of the offender –
for example, that it was done intentionally (as in the case of murder),
knowingly, maliciously or negligently (as in the case of culpable homicide) –
such mental attitude should be averred, otherwise the charge sheet does not
disclose a clear offence.

Provisos, exemptions, exceptions in statutorily defined offences (s90)

§ If a statutorily defined offence contains a proviso or allows for an

exemption, the prosecution is not obliged to specify or set out the proviso
in the charge sheet and even ifthe proviso is included, the prosecution need
not prove it.
§ The accused is obliged to raise the proviso in its defence at trial;
§ For example in the Drug and Drug Trafficking Act, it is an offence to
possess dangerous dependence producing drugs. The proviso to this
statutory offence allows an exemption for those persons legally entitled to
possess the drug – ie pharmacists or researchers, etc. This means that it is
up to the accused to raise the defence of being legally in possession of the
drugs.
§ Therefore a distinction is drawn between a necessary averment (which
must be included in a charge) and an exception/proviso (which need not).in
other wordsincriminating factors must be proved by the prosecution and
exculpatory facts by the accused.
§ Second Golden Rule: Incriminating facts must be stated by the
prosecution in the chargesheet, while exculpatory facts need not be
included. The onusis on the accused to raise exculpatory facts.

Obligation to provide particulars (s87)

§ S 85: the accused may before pleading object to the charge; and -
§ S87: If accused believes the particulars in the indictment are insufficient to
inform him properly on the charge against him, he can request further
particulars from the state.
§ Where the prosecution refuses or fails to provide the particulars, the court
has a discretion to order furnishing of particulars at any time prior to
evidence being led.
§ The court will order the prosecution to furnish such particulars as are
necessary to inform the accused properly of the charge against him unless
such is shown to be impracticable.

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§ In addition, the court may grant an order for further particulars even if the
charge sheet contains all necessary averments, to enable accused to
prepare for trial.
§ If the state refuses to supply further particulars, accused can apply for a
“mandamus” from the High Court. However, the High Courtis generally
reluctant to issue one.
§ Where particulars are given, they become part of the record and the
state must prove the charge “as particularised”. Thus, where a
conviction is based on evidence not covered by the particulars, the
conviction may be set aside on
§ If the charge discloses an offence, but is lacking in particularity, the accused
cannot rely on such fact as a basis for an appeal if theaccused failed to
apply for further particulars (in essence he is presumed to have waived
his right to further particulars).
§ A court’s refusal to order the furnishing of further particulars will result in
accused’s conviction being set aside if such resulted in prejudice to
accused or a failure of justice.
§ Third Golden Rule: The function of a request for further particulars is to
define the issues and not to enlarge them.

3. CORRECTING MISTAKES/ERRORS IN THE CHARGE

SHEET/INDICTMENT

Minor defects in the form of errors, mistakes, omissions, or the inclusion of

minor unnecessary insertions, or superfluous facts, in a charge contained in a
charge sheet need not be corrected if there is no prejudice to the accused.
However material defects in the necessary averments (as defined in s 84
above) of a charge in a charge sheet may cause prejudice at trial to an
accused and must be corrected. There are two methods of correcting a
charge sheet. These are set out in s 86 (an actual amendment to the
charge sheet) and s 88 (the defect, in form of an omission, in the charge
automatically cured by adducing evidence at trial).

Amendment of material errors in charge/indictment (s86)

§ S86 makes provision for the amendment of a charge sheet where:

Ø The charge is materially defective because of a material mistake or a
material omission;
Ø There is a material difference between the averment in the charge sheet
and the evidence offered at trial by the prosecution in proof of such
averment;
Ø Words have been omitted, or unnecessarily inserted or any other material
error is made. (Moloi 2010 (CC))
• The material error must be brought to the attention of the court before
the trial or during the state’s case at trial. Once the error has been
identified the charge sheet must be amended by the prosecution(onus on
prosecution) by way of an affidavit which clearly sets out the amendment.
• The court may order an amendment only if, on the facts and
circumstances of the particular case, it considers that the making of the
amendment will not prejudice the accused in its defence. There will not

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be prejudice if there is but a slight variation or where it is clear that the

accused’s defence would remain exactly the same even if the charge sheet
is amended.
• S86 makes provision for the amendment of the charge, notreplacement
thereof by an altogether new charge. Test: Does the proposed
amendment differ to such an extent from the original charge that it is in
essence another charge. Should a new charge be framed in the course of a
trial, the possibility of prejudice to accused is strong, as accused comes
to court prepared to meet a particular charge and now will be faced with a
different charge.
• S86(4): Failure by the prosecution to amend the charge sheet does not
affect the validity of the trial, unless the court has refused to allow the
amendment and prejudice to the accused will result.
• Note the issue of prejudice to the accusedmay be irrelevant where a charge
does not contain an essential averment because the method set out in s88
allows for such defect to be curedautomatically by evidence adduced at
trial.

Defects and material omissions in indictment/charge cured by evidence

(s88)

§ Before 1959 the courts consistently required charge sheets/indictments to

disclose an offence.
§ If a material element of the crime was omitted, accused could not be found
guilty, even if the evidence at the trial proved the omitted element (even if
accused pleaded guilty).
§ S88 now provides: Where a charge is defective because an essential
element of the offence is missing, the defect can be automatically cured
by the evidence introduced at the trial. The evidence cures the defect by
providing the factual element that is missing in the charge sheet.
§ If the defect or omission has been picked up or has been brought to
the court’s attention before trial, or judgment, then the prosecution
cannot rely on the automatic method in s 88. In this situation the state
has the onus to amend the charge in terms of s 86.
§ The reason for this automatic curing of a defect by way of s 88 is to prevent
the accused from remaining silent during the state’s case, while knowing of
the defect, and then arguing for a discharge, or not guilty verdict, as a result
of the defect.
§ Effect: Greatly alleviates the burden on prosecutors but subject to criticism.
§ The automatic cure by evidence is subject to certain qualifications;
Ø At a minimum, the offence with which the accused is charged should be
named in the charge sheet/indictment (some recognizable offence must
be indicated – i.e.by its technical common law name – murder - or by a
section number).
Ø The prosecutor should frame the charge in a way that itdiscloses an
offence (or the accused may raise an exception against the charge
before pleading).
Ø If accused brings the defect to the court’s attention before judgment, and
the court refuses to amend the charge and the accused is prejudiced,
accused can rely on this on appeal.

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Ø A defect can only be cured by admissible evidence (eg. not through

statutory presumptions).
Ø The purpose of s88 is to cure the defect in the charge and not to replace
or substitute one offence by another offence.

Example: an accused may be found guilty even though the charge contained
in the charge sheet is materially defective (i.e. in that it does not disclose an
offence) as long the evidence admitted during the trial automatically cures the
defect (i.e. by filling up the gap or admission).

S 86 – AMENDMENTS S 88 – AUTOMATIC CURE

• when charge sheet is materially • when charge sheet is materially
defective, or contains incorrect words; defective by way of a material omission
• or there is a material difference between (i.e. does not disclose an offence);
charge sheet and evidence being lead • which will prejudice the accused’s
at trial, and evidence shows charge defence;
defective; • and defect not picked up before trial;
• which will prejudice the accused’s • or during the state’s case during trial.
defence.
The defect, or omission, may be cured
Picked up and brought to either parties automatically during the course of the trial
attention before trial, or court’s attention by admitting admissible relevant evidence
during trial; (i.e. not by way of presumptions);
• onus on prosecution to amend; • The evidence must cure the defect and
• court may order amendment; not replace the charge with a new one.
• amendment must not prejudice
accused; Reason: to prevent the accused form
• amendment must not replace charge remaining silent during state’s case, while
with a new one; knowing of the defect, and then arguing
• accused may request a postponement for discharge, or not guilty, at end of
to prepare a defence to the amended state’s case as a result of the defect.
charge sheet.

4. THE SPLITTING OF CHARGES OR DUPLICATION OF CONVICTIONS

(s83)

Sometimes the single act of an accusedmay constitute more than one

offence:
Example 1; the offence of robbery consists of the act of theft and assault
while stealing. The prosecution may charge the accused with both assault
and robbery. This is an unfair splitting of charges as the two offences flow
from the same act.

An accused may also commit the same act multiple times during a certain
period of time which results in the continuous repetition of the same offence:
Example 2: an accused who fraudulently pretends to be an admitted
attorney and consults with clients over a period of a year may be charged
with multiple counts of criminal fraudcommitted throughout the year.

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An accused may commit similar acts in a brief period of time which are
causally related to each other:
Example 3: The accused molests and forcibly rapes his minor daughter.
In this brief period of time the accused through his similar sexual acts may
be faced with a charge of sexual assault, a charge of rape of a minor, and a
charge of incest.

§ Splitting of charges is prosecution centered. The prosecution is entitled

to charge the accused with as many offences as the facts allow (s83).
§ Duplication of convictions is judge/magistrate centered. The accused
can be charged with many offences by the prosecution, but in passing
judgment the judge/magistrate should not find the accused guilty of all
these offences where it would result in an unfair duplication of
convictions (by reason of considerations of fairness (Kuzwayo).
§ According to s83: The meaning of splitting of charges is described as
follows: if there is uncertainty as to the facts which can be proven the
prosecution may formulate as many charges as the available facts
justify. The accused may be charged with having committed all, or any of
the offences, and any number may be tried at once, or the accused may be
charged in the alternative with having committed any number of those
offences(Grobler).
§ The meaning of duplication: if, however, it appears, at the end of the trial,
that according to the proven facts, two charges comprise one and the same
punishable act, the judgeshould for reasons of fairness convict accused on
only one charge.

The following are further examples of splitting of charges:

A single actconstitutes more than one statutory offence, or consists of a

statutory and a common law offence (s336). The accused may be charged
with both the statutory and the common law offence but may only be held
liable for one punishment.
Example: the statutory crime of pointing a fire-arm and the common law
crime of assault – one punishment.
Example: the statutory crime of driving under the influence and the
common law crime of reckless driving – one punishment.

A single act constitutes more than one offence at common law:

Example: where two persons are killed in a motor car accident caused
by the accused. The accused should be charged with only one count of
culpable homicide – and thus only one punishment. But see S v
Humphries

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More than one act of the same nature, or of a similar nature, is committed
practically simultaneously, constituting more than one offence (whether a
statutory or common law offence):
Test (only guideline):
§ Was the act committed with a single intent, or is the act part of one
continuous transaction spread over a time period,
§ or does the evidence required to prove the one charge necessarily involve
proof of the other charge?
Ø If the answer to either of these alternatives is yes, improper splitting has
occurred.
Ø However, where the nature of the separate acts and the intent with
which each act has been committed, differ to such an extent that it is
unreasonable to accommodate all the acts within only one offence,
conviction on multiple charges would not constitute an unfair duplication
of convictions.
Example: If the accused breaks into a house with intent to steal and then
actually steals something he should only be charged with one count of
housebreaking and theft. However if he breaks into different flats in a
block of flats he can be charged with multiple counts of housebreaking.
Example: an act of robbery accompanied with rape. Accused can be
convicted of two separate offences.
Example: an accused caught in the possession of drugs may be charged
and convicted only of one count of either possession or drug dealing.

A continuous repetition of the same act spread over a period of time:

(See example of fraudulent attorney, doctor, conman,etc.).

Finally; If accused has been convicted/acquitted of offence X and is

thereafter charged with offence Y (which, if X and Y were charged together,
would have amounted to a splitting of charges), accused can plead autrefois
convict/acquit.

5. JOINDER OF OFFENCES (s81)

§ In practice, a prosecutor usually charges an accused with the most serious
crime as main charge, and the lesser offences as alternative charges.
§ S81(1)allows forjoinder of offences. This means that any number of
offences may be charged against the same accused in one charge
sheet/indictment, on the condition that they do not constitute unfair splitting
of charges.
§ Therefore it is good practice that where the prosecution has charged an
accused with an number of offences, it should reasonably attempt to bring
all the charges before the court in one charge sheet/indictment so that all
the offences are tried together in a single trial.
§ However, the court can order that the charges so joined be tried
separately, if it reasonably believes this would be in the interests of
justice.
§ Joinder of offences can take place at any time prior to any evidence being
led in respect of any particular charge (or the proceedings will be void).
§ No additional charges can be joined after questioning accused in terms of
s112 (see below next chapter).

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6. THE JOINDER OF SEVERAL ACCUSED (ss155-158)

§ S155: Any number of participants in the same offence may be tried

together as co-accused (including perpetrators, accomplices and
accessories after the fact).
§ S156: If two people have committed separate offences at the same place
and time, and the prosecutor (in its bona fide opinion) informs the court that
evidence against the one will also be admissible against the other, such
persons may be tried jointly at the same trial (i.e. where two or more
persons are involved in the same criminal transaction but commit different
offences – i.e. brothel owner and prostitute who works in brothel may be
tried together even though charged with separate offences); (i.e. in terms of
s 332 a director of a company may be tried together with the juristic
company in a single trial).
§ The decision to join several accused together is that of the prosecution.
The court must be satisfied that the prosecutor’s decision is bona fide and
based on a reasonable interpretation of the rules of evidence.
§ Joinder of accused can take place at any time prior to evidence being led.
§ Furthermore, accused can be joined after questioning accused in terms of
s112 (below).
§ But once the trial commences no persons may be joined as this would
infringe s 158 (the principle of confrontation).

7. CHILD JUSTICE ACT

Section 6(2): (joinder of offences)a child charged with two or more offences -
the more serious offence must guide the manner in which the court must deal
with the child, (i.e. is the more serious offence a schedule 1 offence then court
must order diversion, or is it a schedule 3 offence and likely imprisonment.)
Section 63(2): (joinder of accused) where a child and an adult are
charged together in the same trial in respect of the same set of facts a
court must apply the provisions of—(a) the CJA in respect of the child; and (b)
the Criminal Procedure Act in respect of the adult.

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CHAPTER 14 - ARRAIGNMENT AND PLEA

ARRAIGNMENT

§ The prosecutor is dominuslitis and will determine the charges.

§ The police officer plays no role here. He merely makes the investigation
and provides the evidence (dossier – police docket) on which the
prosecutor will build the case.
§ Once the prosecutor is satisfied from the police docket that there is
sufficient evidence to build a prima facie case against the accused, the
prosecutor will formulate the charge.
§ The prosecutor formulates a charge (Magistrate Court) or an indictment
(High Court) and the accused is arraigned for trial. (See chapter 12).
§ The charge is read out to the accused at the arraignment hearing (plea
hearing) (s 105)
§ Once officially charged, the accused’s right to a speedy trial (see chapter
15) comes into effect.
§ Accused at the arraignment is asked to plead to the charge.
§ Child Justice Act – s 63 magistrate must inform the child of the charges
against him/her, and explain the child’s rights and all future procedures to
be followed.

PLEAS

There are a number of common law and statutory pleas which are divided
between extra-ordinary and ordinary pleas. There is also the procedure of
plea bargaining.

(a) When may the accused’s plea be dispensed with?

Refusal to plead by accused

The court enters a plea of not guilty on behalf of the accused.

Ambiguity in plea
Where the accused admits some facts and denies others, the court will enter a
plea of not guilty and then question the accused in terms of s115 (see later).

Obstructive and rowdy behaviour

The court may order the accused to be removed and proceed without him, by
entering a plea of not guilty.

Mentally abnormal accused

§ Where the accused is unable to plead because of a lack of mental
understanding, an inquiry into his mental state must be held (ss77 and
79).
§ An investigation is made by a medical superintendent of a state mental
hospital, assisted by a psychiatrist (court appointed) and a psychiatrist
appointed by the accused.
§ The accused may be committed to a mental hospital for up to 30 days
during the inquiry.

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§ If the investigation concludes that the accused does understand, the

proceedings continue in the normal way.
§ If the investigation concludes that the accused does not understand, he is
detained in a psychiatric hospital.
§ If the accused did commit the act, but is found mentally defective, he is
found not guilty and the declared a state patient and held in a psychiatric
hospital or psychiatric prison.
§ accused may appeal the findings of the inquiry.
§ In respect to children who lack criminal capacity as a result of youth -
the child will be handed over to be tried according to the Child Justice Act.
(see the summary)

Objection to charge
The accused may object to a charge on the following grounds:
§ Charge does not set out all the essential elements of a crime.
§ Charge does not disclose an offence.
§ Charge does not contain sufficient particulars.
§ The accused is not correctly named or described.
§ Reasonable notice must be given to the prosecution of the objection.
§ Where the prosecution fails to amend charge in accordance with the
objection the court may squash the charge.

(b) Plea which may be raised by the accused

Statutory plea (s106)

The accused may plea the following (9 statutory pleas):
§ That he is guilty of the offence charged, or of any offence of which he may
be convicted on the charge (s 112).
§ That he is not guilty (s 115).
§ That he has already been convicted of the offence with which he is
charged (autrefois convict).
§ That he has already been acquitted of the offence with which he is
charged (autrefois acquit).
§ That he has received a free pardon from the president for the offence
charged.
§ That the court has no jurisdiction to try the offence. Or:
§ That the prosecutor has no title to prosecute. Or:
§ That he has been discharged in terms of a grant of immunity against
prosecution in terms of s 204.
§ That the prosecution may not be resumed or instituted owing to an order by
a court under s342A(3)(c).
§ Two or more pleas may be pleaded together (except with a plea of guilty).

Truth and public benefit (s107)

§ Can only plead this when charged with criminal defamation.
§ May be pleaded with any other plea, except a plea of guilty.

Lis pendens (common law plea)

§ The case is the subject of adjudication in another court (see later).

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A PLEA OF GUILTY (S112(1)

§ A plea of guilty means that the accused admits all the elements of the crime
(facts-in-issue) and there is no issue between the accused and the state
and therefore no need of a trial.
§ The accused may be convicted and sentenced immediately.
§ S112(1) sets out two different procedures to be follows:
Ø Less serious offences: For minor offences the judicial officer may
convict and impose a sentence immediately without questioning the
accused (s112(1)(a)).
Ø Serious offences: The judicial officer must question the accused in order
to ascertain whether the accused admits all the elements of the crime. If
judge is satisfied by the accused’s answers, he can then convict and
sentence (s112(1)(b)).
Ø S112(2): Requires the accused to make his series of admissions together
with all the facts on which the admissions are based.

Questioning by the presiding officer

§ An unrepresented accused who pleads guilty must be questioned by the
judicial officer.
§ Questioning is directed at satisfying the judicial officer that the accused
fully understands the charge.
§ The purpose of questioning is to protect the accused against an incorrect
plea of guilty.
§ The accused’s answers cannot be used to draw inferences of guilt. The
accused’s plea of guilty must be clear, direct and unequivocal.
§ Questioning must occur in such a way as to place all the evidencebefore
the judge to allow him to convict and sentence properly.
§ Note: Questioning in terms of s112(1)(b) (serious offences) is peremptory,
and a failure to question will result in the conviction being set aside.

The accused’s version

§ Accused should be encouraged to give his version.
§ The court cannot judge the accused’s truthfulness or plausibility.
§ The court must simply evaluate the facts to determine whether they
substantiate the accused’s admissions and his plea.
§ The test is to analyse what the accused has said, not what the court thinks
of it.
§ If the accused’s version of the facts is materially different to those before the
court, a plea of not guilty must be entered.

The prosecutor’s role

§ Prosecutor must give the court a brief summary of the state’s case which
contains all the material facts.
§ The summary must be noted on the court record.
§ If the accused disputes certain facts, the prosecution must admit evidence
to prove them.
§ If the accused pleads guilty to a lesser offence which is a competent verdict
on the main more serious offence, the prosecutor may accept the plea
without leave of the court.

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§ The accused’s plea of guilty to a less serious charge (ie. culpable homicide)
and his plea of not guilty to the more serious charge (ie. murder) does not
stop the prosecution.

Written statements by the accused (instead of questioning)

§ The court may convict on the strength of a written statement by the
accused, in which he sets out all the facts and pleads guilty.
§ The court may question the accused on any matter raised in the statement
to satisfy itself of the accused’s guilt.
§ A statement which simply copies out the charge sheet is insufficient, and
must set out all the necessary admissions as well as the facts on which the
admissions are based.

Correction of a plea of guilty (s113)

During the s112 proceedings, there may be doubt that:
Ø The accused is in fact guilty
Ø The accused is not admitting a relevant fact-in-issue
Ø The accused has incorrectly admitted a relevant fact
Ø The accused has a valid defence
Ø Any other factor.
§ The court based on the above, must record a plea of not guilty (s113) and
require the prosecutor to proceed with the prosecution.
§ A reasonable doubt and not a probability is sufficient to compel the court to
record a plea of not guilty.

Committal for sentencing to regional court

§ A magistrates court may, before sentencing, but after a plea of guilty refer
the accused to the regional court when:
Ø The offence exceeds the sentencing jurisdiction of the Magistrates Court;
Ø The accused’s previous convictions coupled to the present offence merits
a sentence in excess of the Magistrates Court jurisdiction;
Ø The accused is a dangerous criminal (s286A).
§ The accused is then sentenced in the regional court, unless the regional
court overturns the plea of guilty and records a plea of not guilty, in which
case the prosecution proceeds as a summary trial.

Amendment of plea from guilty to not guilty

§ An accused, with the court’s permission, may withdraw a plea of guilty.
§ The accused must give a reasonable explanation for the change (ie. fear,
duress, mistake, ignorance).
§ An application may be brought after conviction but before sentencing.
§ The onus of proof is on the accused to show on a balance of probability why
change should be allowed (this onus has been criticised by S v Botha).
§ In Botha, it was held that the onus should remain on the state and not shift
to the accused.
§ Only in exceptional cases will a change of plea be allowed after the verdict.

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PLEA OF NOT GUILTY (S115)

S115(1) (Explanation of plea)

§ Purpose: To identify the allegations/issues in the charge that is in
dispute.
§ The court must inform the accused that he is not obliged to answer any
questions, i.e. the right to silence. Failure to do so constitutes an
irregularity, the effect that would depend on the circumstances.
§ Spontaneous admissions, made immediately after the plea, before the
accused has been warned of the right to remain silent, are admissible.
§ The court may put questions to accused to clarify any matter regarding
the basis of the accused’s defence, or to clarify his answers to questions
relating to issues in dispute, but the questioning should not go beyond the
matters in issue and should be limited to issues in respect of which
accused’s statements is unclear.
§ Accused need not make his statement setting out basis of his defence
under oath and court should advise accused accordingly.
§ S115 procedure must take place after plea but before the starting of the
state’s case.
§ The explanation by the accused of a plea of not guilty is not evidential
material upon which a conviction can be based.

Admissions made in the course of an explanation of plea

§ The accused is asked whether a fact which is admitted during the
explanation of plea, may be recorded against him as an admission.
§ If the accused consents, such an admission is duly recorded (s220).
§ The admitted fact is no longer in dispute between the prosecution and
the accused.
§ A s220 admission is sufficient proof of that fact and absolves the state from
the burden of proving it.
§ A s220 admission is labelled a formal admission.
§ Where the accused does not consent to an admission being recorded,
then the fact must still be proved by the state. Such an admission is referred
to as an unrecorded informal admission made in court.
§ (For a more detailed explanation, see Chapter 14).

Accused’s participation
§ If an accused is unrepresented the judge directs his questions at the
accused, but where the accused is represented questions must be put to
the legal representative as the legal practitioner is acting as shield, and not
to accused directly.
§ The accused must, however, declare whether he confirms the answer of
representative.
§ Plea explanations cannot be used against a co-accused, except when the
accused repeats his allegations in his explanation of plea in evidence under
oath (because then it is evidence).
§ The difference between s112 and s115 in respect to what inferences may
be drawn from the accused’s invocation of a right to silence are as follows:
Ø On a plea of not guilty, the accused has a right to remain silent, and the
court’s questioning should be directed at establishing the facts-in-issue,

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and the accused should be protected from jeopardising his plea of not
guilty.
Ø On a plea of guilty, the right to silence becomes irrelevant but the court
should question the accused in a way which protects the accused from
an unjustified plea of guilty.
§ S115 has a dual purpose:
Ø An invitation to indicate the basis of his defence.
Ø Questioning to ascertain which allegations in the charge are in dispute.

Committal to regional court

§ After the plea of not guilty, at the request of the prosecutor and before any
evidence is tendered, the court may refer the trial to regional court with
jurisdiction.
§ The record of the proceedings of the district court is received and placed on
the record of the regional court.

Amendment of plea of not guilty

§ An accused may at any stage change a plea of not guilty to one of guilty,
with leave of the court.
§ In such a case, s112 proceedings become applicable.

PLEA OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT

• A person should not be punished more than once for the same offence.
• This basic principle is defined in (s35(3)(m)) of the Constitution as - ‘Every
accused person has the right to a fair trial, which includes the right … 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”.
• The plea that a person has already been convicted of the same offence is
called autrefois convict. And the plea that a person has been acquitted of
an offence is called autrefois acquit.
• No person shall be in jeopardy of being tried for and convicted of the
same offence more than once (the so-called principle of ‘double
jeopardy’ - no person shall be harassed twice for the same cause).
• The onus of proving a plea of previous conviction or previous acquittal rests
upon the accused. Proof of the previous trial is usually rendered by
producing the record and by oral evidence that the accused is the same
person who was previously tried.

The meaning of a ‘same offence’: in order to determine if the offence is the

same as the one for which the accused has previously been found guilty, or
acquitted, the court will examine the ratio decidendi of the previous
judgment to determine that;
Ø the essential elements of the offence at the first trial is substantially the
same as the offence at the second trial:
Ø there exists a substantial identity of subject matter between the criminal
charge in the first trial and the charge in the second trial; or
Ø the evidence necessary to prove the charge at the first trial is sufficient to
prove the charge at the second trial;

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Ø In Mcintyre and others 1997 (2) SACR 333 (T), the court found that
section 35(3)(m) of the Constitution, broadened the law concerning what
was previously regarded as ‘the same offence’ by looking at the act of
commission or omission with respect to which the accused was found
guilty or not guilty before, rather than at the description of the offence.
The same approach as with duplication of convictions can be followed
to determine whether the offence with which the accused was charged in
the second trial is essentially the same as the one with which the accused
was charged in the first trial. (See chapter 12 duplication of convictions for
these factors).

(a) Autrefois convict

The essentials of this plea are that the accused has previously been
convicted:
Ø of the same offence with which he is now charged;
Ø by a competent court.
• It is often argued that a third requirement must be added - that the accused
must have been found guilty upon the merits. However, it is superfluous
in this context as it is obvious that a conviction can only be based ‘upon the
merits’.
• The accused is said to have stood in jeopardy.
• The meaning of a same offence - case of Mcintyre and others and the
interpretation of ‘the same offence’ above is applicable here.
• The plea can only be raised after the accused has already been
sentenced in the first trial.
• The plea is also available where the offence with which the accused is now
charged is a lesser one than that of which he had been convicted, and
the current offence is one of which he could have been convicted on
the previous charge. If the accused had previously been convicted of
murder, he cannot now be charged with culpable homicide. If the accused
had previously been charged with murder and convicted of assault, he
cannot now be charged with culpable homicide. (Conviction of the latter two
offences is competent upon a charge of murder).
• The plea is not available where it was impossible at the previous trial to
prefer the more serious charge now presented. Thus, if the victim of an
assault dies after the accused has already been convicted of assault; the
accused may be indicted for murder or culpable homicide. Likewise,
conviction of negligent driving of a motor vehicle is not a defence on a
charge of culpable homicide

(b) Autrefois acquit

The essentials of this plea are that the accused has previously been
acquitted:
Ø of the same offence with which he is now charged;
Ø by a competent court; and
Ø uponthe merits.
• For a plea of autrefois acquit to be sustained where an accused is charged
again, there must have been a previous trial, or a prosecution, followed
by an acquittal.

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• The accused is said to have stood in jeopardy. In other words the

accused must legally have been in jeopardy in the first trial of being
convicted of the offence with which he is charged on the second trial.
• The meaning of a ‘same offence’ - case of Mcintyre and others and the
interpretation of ‘the same offence’ above is applicable here.
• The acquittal must have been ‘on the merits’. This means that the court
(whether at the trial or ultimately upon appeal) must have considered the
merits of the case in fact or in law, and must not have acquitted the
accused merely because of a technical irregularity in the procedure.
• Where the trial is abandoned because of an irregularity, the accused may
be brought to trial de novo and the plea of autrefois acquit will fail.
• The plea of autrefois acquit can be sustained even where it is based on the
judgment of a foreign court.

AUTREFOIS CONVICT AUTREFOIS ACQUIT

Requirements: The accused has Requirements: The accused has
previously been convicted: previously been acquitted:
Ø Of the same offence; Ø Of the same offence;
Ø By a competent court. Ø By a competent court;
Ø Upon the merits.
§ The court will look at the true § There must have been a trial or a
essence of the offence and not at prosecution followed by an
technicalities. acquittal, ie there must have been a
§ The plea is also available when the danger of conviction.
offence now charged with is a § It must be for substantially the
lesser one than that of which same offence.
accused has been convicted and § If at the trial there is not a
the current offence is one of which substantial difference between the
he could have been convicted in the facts alleged in the charge and the
previous charge. facts proved by evidence, the
§ Accused can be charged with a accused may be convicted – if he is
more serious offence, eg. If an then acquitted, he may plead
assault victim dies after accused autrefois acquit.
has already been convicted of § Even if a plea of autrefois acquit
assault, the accused may, however, fails, court still has a discretion to
be charged with murder or culpable prevent the second trial from
homicide. proceeding on the basis that a trial
should not proceed in piecemeal
fashion.
§ The acquittal must have been on
the merits-the court must have
considered the merits and not
merely acquitted the accused on a
technicality. If due to procedural
technicality – a trial may be brought
de novo.

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AFTER PLEADING, ACCUSED ENTITLED TO VERDICT (s 106(4))

S106(4) provides that an accused who has pleaded to a charge is entitled

to demand that he be acquitted or convicted. This type of s106 demand is
usually made where the accused has pleaded, there have been several
postponements of the trial, and the prosecution witnesses are still not
available. The court (in the regular exercise of its discretion) refuses a further
postponement request by the prosecution. The accused is acquitted ‘on the
merits’, there being no evidence against him.

S 106(4) will apply only where the court, as it was constituted at the time that
the plea was entered, remains so constituted and retains its legal authority up
to the time when it passes sentence. However:
The following instances are examples of when an accused will not be
entitled to demand acquittal or conviction:
Ø Where the magistrate has recused himself from the trial.
Ø Where separation of trials takes place (s157).
Ø Where a trial is referred to a regional court, or is converted into a
preparatory examination – ss116 and 123.
Ø Where the magistrate dies, resigns, or is dismissed – where a magistrate
resided the case is to be resumed before another magistrate de novo
without the need for an order to this effect from another court.
Ø Where it appears that the accused is before the wrong court.
Ø Where the director of public prosecutions makes an application in terms of
s13 that a private prosecution be stopped and that the accused be
prosecuted de novo by the State.
Ø Where a youth is referred to the Children’s Court (s254) or where an
drug dependency enquiry is held in terms of the Prevention and
Treatment of Drug Dependency Act 20 of 1992 (s255).
Ø If a court finds that an accused, because of a mental disorder, is not
capable of understanding the proceedings so as to make a proper
defence, the court must direct that the accused be detained in a mental
hospital or a prison pending the signification of the decision of the Minister,
and if the court so directs after the accused has pleaded to the charge, he
will not be entitled to be acquitted or convicted. If the court makes such a
finding after the accused has been convicted but before sentence is
passed, the court must set aside the conviction (s77(6)). After recovery, the
accused may again be charged and tried.
Ø Where an accused has pleaded in terms of s119. (ie a plea in a mag court
justiciable in a High Court).
Ø Where the prosecution has been stopped by the prosecutor without the
required consent of the director of public prosecutions or any person
authorised thereto by the director of public prosecutions in terms of s6(b).

Pardon by the President

The accused may plead that he has received a pardon from the President for
the offence charged – also s106.

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Plea to the jurisdiction of the court

Such a plea may be based on an allegation that the offence was committed
outside the area of jurisdiction of the court or that some condition precedent
necessary to confer jurisdiction on the court has not been satisfied.

Discharge from prosecution

S204 deals with the immunity accorded to accomplices who give
satisfactory evidence for the State in criminal proceedings. According to this
section, if the prosecutor informs the court that any person called as a witness
on behalf of the State will be required to answer questions which might
incriminate him, the court must inform such witness that he will be obliged to
answer such questions but that if he answers ‘frankly and honestly’, he will
be discharged from liability to prosecution. If the witness does in fact
answer the questions put to him frankly and honestly, the court must discharge
him from prosecution.

Lack of authority of the prosecutor

This plea relates to the locus standi of the prosecutor to act. It will most
probably occur with private prosecutions where a municipality must, for
instance, brief a prosecutor to act.
Lis pendens (common law plea)
The lis or case pending in another court against the accused must be a
criminal case. This plea is not recognised in the CPA, but the general powers
of postponement of the trial can be exercised on such a plea, which cannot
have anything but a dilatory effect. If the other trial is completed and a plea of
autrefois acquitor convict does not then become effective, the fact that the
other trial took place will be irrelevant at the trial where the plea of lispendens
has been raised.

Pleas in the case of criminal defamation

These pleas are the same as the defences in a civil case – subject to the
remarks already made.

Plea as to an order of court on an unreasonable delay in a trial

In terms of s342A, a court before which criminal proceedings are pending,
must investigate any delay in the completion of proceedings which appears to
the court to be unreasonable and which could cause substantial prejudice to
the prosecution, the accused or his/her legal adviser, the state or a witness.

If the court finds the delay to be unreasonable, the court may order, in the case
where the accused has not yet pleaded, that the case be struck off the roll and
the prosecution not to be resumed or instituted de novo without the written
instruction of the director of public prosecutions. If the accused is charged
again, he/she may raise a special plea that the trial was stayed by an order of
court made in terms of s342A(3)(c).

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PLEA BARGAINING

Basic principles:
• Plea bargaining is defined as a plea negotiation between the prosecution
and the accused whereby:
Ø the accused gives up the right to a trial in exchange for a reduction in
sentence;
Ø the prosecution is spared the time, expense, and the evidentiary risk of
a lengthy trial; and
Ø where the compromise agreement reached on sentence between the
parties is reasonable and retributively just.
• S 105A codifies the common law principles of plea bargaining;
• The plea agreement must be in writing;
• The agreement must be entered into before the commencement of trial;
• It is a once-only offer; if the trial is terminated, and recommenced de novo,
the agreement falls away;
• No reference may be made at a trial de novo to any previous plea
negotiations/agreement; unless the accused consents thereto;
• S 105A(1)(b)(iii) also allows for the participation of the
complainant/victim in the negotiation process;
• The negotiated plea agreement between the state and the accused may
result in:
Ø A plea to a lesser offence which is a competent verdict to the offence
which the accused faces;
Ø A plea to an alternative charge which is a lesser offence to the main
charge;
Ø A plea of guilty but on a lesser basis of liability than that alleged by the
prosecution – (i.e. dolusdirectus negotiated down to doluseventualis);
Ø A plea of guilty by the principal co-accused in return for the withdrawal of
charges against the other accused;
Ø The disclosure of relevant incriminating evidence by the accused to the
state in return for an agreement of immunity from prosecution;
Ø An agreement to plead guilty to a smaller number of charges in return for
the withdrawal of the remaining charges.

The plea bargain procedure:

• The plea negotiation is between a legally represented accused and an
authorised (in writing) prosecutor;
• An unrepresented accused cannot enter into such a negotiation;
• The judicial officer (judge/magistrate) does not take part in the negotiation;
• Once the completed agreement is brought before the court, the judicial
officer may question the accused on its contents in order to ensure that
the accused has admitted to all the elements of the charge;
• The judicial officer then proceeds to the sentencing stage of the trial; when
satisfied that the sentence agreed between the parties is just;
• The court will then convict the accused in terms of the agreed upon
sentence;
• If the court is not satisfied with the sentence agreement:
Ø The parties are informed of a sentence considered just by the judge;

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Ø The parties may decide to uphold the agreement in respect to the merits
only; and to allow the judicial officer to convict the accused, and at the
sentence stage of the trial to determine a just sentence;
Ø One or all of the parties may decide to withdraw from the agreement, in
which event the trial must start de novo before another judicial officer.

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CHAPTER 15 MISCELLANEOUS MATTERS

WHO MAY ATTEND A TRIAL (s35 of the Constitution)

The basic features of an ordinary court of law:

§ The court must be independent and impartial and must be served by a
presiding officer within the legal structure of the judicial authority as
provided in the Constitution (Freedom of Expression Ins v President,
Ordinary Court Martial 1999).

The meaning of a public trial:

§ The public must have access to the trial (Young v Minister of Safety and
Security 2005).
§ The general rule is that the public have access to a trial and that anyone
may attend it.
§ An accused’s right to a public trial is recognised in s35(3)(c) of the
Constitution.
§ However, provision has been made for members of the public to be
excluded from the trial under certain limited conditions.

Which members of the public may be excluded from a public trial (s153)

§ S153(1): Members of the public may be excluded in the interests of

security of state, good order, public morals, or the administration of
justice.
§ S153(2): A witness may also testify in-camera (behind closed doors) if
there is a likelihood of harm to witness. The public may be excluded to
protect the witness’s identity (although the witness’s identity cannot be
withheld from the defence).
§ S153(3): The public may be excluded at the request of the accused who is
charged with committing an indecent act, extortion (judgment and sentence
must be given in open court).
§ S153(4)(5)(6): Provides for safeguards for young and minor accused. No
public, except for legal representatives and parents may be in court. No
person under 18 may attend court except where giving evidence.
§ Child Justice Act sec 63(5): No person may be present at any sitting of a
child justice court, unless his/her presence is necessary in connection with
the proceedings of the child justice court or the presiding officer has granted
him or her permission to be present.

WITNESSES (S185-188)

§ Witnesses play an important part in criminal trials because they assist the
courts in arriving at the truth.
§ There are certain methods provided to secure the attendance of the
witnesses as follows:
Ø The witness is summonsed by subpoena to appear in court.
Ø The witness is warned by the police to come to court;

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Ø The witness is summonsed by means of the provisions of s205 –

which are at the disposal of the prosecutor or the director of public
prosecutions with respect to a witness who does not want to make a
witness statement – to appear before a judge, magistrate, or regional
magistrate, to testify before the judicial officer. If the witness is willing to
make a statement, he or she is under no further obligation to appear
before the judicial officer. Note that if the witness refuses to testify or to
be sworn in, either in a court or on warning, or before the judicial officer,
according to s205, then the witness can be dealt with as provided in s189
(Bekisi1992). At the same time, it is assumed that a witness will
sometimes have a valid excuse not to testify, for example where the
answer to a question will have the result that he/she will incriminate him-
/herself. Provision has therefore been made to enable such witnesses to
rely on such excuse to justify their refusal to answer questions.
Ø Witnesses are often warned in court by the presiding officer to
appear in court on a particular day. If a witness ignores such warning,
he/she commits contempt of court.
Ø The act makes provision to ensure the safety of witnesses who are
subject to intimidation because they bear testimony (Intimidation
Act)(Witness Protection Act).
o If the DPP thinks that there is any danger that a potential state witness
in respect of specified offences may be tampered with or intimidated
or that such witness may abscond, or whenever he deems it in the
interest of the witness or of the administration of justice, he may apply
to a judge in chambers for an order that such witness be detained
pending the relevant proceedings.
o The witness may then be detained until the conclusion of the case or
six months after his arrest.

RECALCITRANT (RELUCTANT) WITNESS (S189) (Refuses to take oath or

answer questions
§ In case of a witness who refuses to testify, the court institutes a summary
inquiry and examines to determine if the witness has a just excuse.
§ If no just excuse, can be sentenced to 2-5 years imprisonment.
§ Reluctant witness will not be sentenced, however, if his evidence is not
material and necessary (ie. if it is superfluous).
§ Appeal on sentence is possible.
§ A just excuse does not include sympathy with accused’s political
ideals, fear of the accused’s or family’s safety.
§ A just excuse includes humanely intolerable circumstances, or where
evidence is not necessary for the public welfare.

POSTPONEMENT (Ss168-170)

§ S170: A case may be postponed either by the prosecution or the state.

§ Two basic principles must be considered :
Ø A case is postponed if it is in the interest of society to ensure that guilty
men are duly convicted;
Ø The accused, however, is deemed innocent and therefore has a right to
a speedy trial, which should not be unnecessarily postponed.

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§ A case is postponed for the following reasons:

Ø Allow the accused an opportunity to find witnesses (Zimba);
Ø Where the accused’s legal representative is absent and it is not the
accused’s fault (Seheri).
Ø To acquire relevant evidence (Hatch).
Ø A postponement in order to get work to pay an attorney is not a valid
reason (Swanepoel).
§ The accused who fails to attend at the date to which case postponed is
guilty of an offence, unless failure to attend not his fault.

SPEEDY TRIAL (s342A)

§ There is a constitutional right to a speedy trial without unreasonable

delay (s35 of the Constitution.
§ Unreasonable delay determined by various factors:
Ø Nature of prejudice to accused;
Ø Nature and complexity of case;
Ø Types of systematic delays;
Ø Whether or not accused has consistently consented to postponements
(Sanderson).
§ S342A: Sets out a number of other factors determining unreasonable delay:
Ø Duration of delay;
Ø Who is to be blamed for delay;
Ø Reasons for delay;
Ø Effect of delay on accused and witness;
Ø Effect of delay on the administration of justice;
Ø Effect of delay on the victim;
Ø Any other factors which may be relevant.
§ An appropriate remedy for the infringement of the right to a speedy trial will
be determined by the circumstances of each case.

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CHAPTER 16 - JOINDER AND SEPARATION OF TRIALS

SEPARATION OF TRIALS

The state is dominuslitis - the prosecution controls the type and nature of
the charges against the accused, and the state decides whether several
accused should be tried together in the same trial, or whether they should
be tried separately. After the state has decided to charge several accused
together, an accused can request under certain conditions that his/her trial be
separated from the rest. The court can also order such a separation
(meromotu) ie on its own account..

Sec 63(2) Child justice courts and conduct of trials involving children
Where a child and an adult are charged together in the same trial in respect of
the same set of facts, a court must apply the provisions of-
Ø this Act in respect of the child; and
Ø the Criminal Procedure Act in respect of the adult.

The position under the Criminal Procedure Act

• In terms of s157, the court may now at any time during the trial, on the
application of the prosecutor, or any of the accused, or meromotu, direct
that separate trials take place.
• If the court has ordered a separation of trials, the trial of the first accused
may be concluded and thereafter he may be called as a witness
against the remaining accused.
• The first accused need not be sentenced (if convicted) in order to be a
competent witness, against remaining accused but it is desirable that he
should first be sentenced.
• If the first accused is sentenced there is less of a risk that as a witness he
will fabricate his testimony in the hope of receiving a lesser penalty. See Ex
parte Minister of Justice: In re R v Demingo1951 (1) SA 36 (A).
• Where a separation of trials is ordered, the trial of the accused which is then
discontinued must be commenced de novo.
• Indemnity in terms of s 204 – in terms of an immunity agreement where an
accomplice is produced as a witness by and on behalf of the prosecutor,
and submits to being sworn as a witness, and answers fully to the
satisfaction of the court all lawful questions, he is absolutely free from all
liability to prosecution for such offence.

Grounds upon which separation may be applied for

In most cases application for separation is made by the defence, since the
State is free to act against the accused individually ab initio. It is undesirable
for separate trials to take place if the onlypurpose is to call as witness
someone accused of an offence arising from the same set of facts,
without establishing other relevant factors/reasons. Such an applicaton may
give rise to injustice, prejudice or the apparent prejudice to an accused, and

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the convictions which are eventually made will be set aside – except in the
case of accomplices who become State witnesses:
• As a general rule persons who are charged jointly should be tried jointly
(Bagas);
• The question whether separation should be allowed lies in the discretion of
the presiding judicial officer. This discretion must be exercised in a
judicial manner, ie not arbitrarily, but taking into account and considering all
relevant facts – Bagas (above). Relevant factors are the interests of
justice, the interests of the individual accused, as well as the wider
interests of society – Shuma 1994 (4) SA 583 (ECD).
• Another relevant factor is the fact that evidence is adduced at a joint trial
which is admissible against one accused but inadmissible against
another and that this evidence may incriminate the latter (eg a
confession by the former).
• The mere possibility of prejudice to an accused is not sufficient to
justify an order for separation of trials. It must be established that the joint
trial will probably be prejudicial to an accused – Nzuza 1952 (4) SA 376
(A).
• In addition the State should also not be unduly prejudiced in the
presentation of its case. If a real danger exists that a separation of trials
will hinder the State to such an extent in the presentation of its case that a
miscarriage of justice may result and a guilty person may be released, this
consideration is decisive – Kritzinger 1952 (4) SA 651 (W).
• S196(2) provides that the evidence which an accused may give in his own
defence at a joint criminal proceedings shall not be inadmissible against a
co-accused ‘by reason only that such accused is for any reason not a
competent witness for the prosecution against such co-accused’.
• Where co-accused blame one another it would often be in the interest of
justice to try them together in order to enable the court to hear all the
evidence and better to allocate the various degrees of guilt.
• If one of two or more co-accused has pleaded guilty, the best course is
to separate the trials and to dispose of the trials of those who pleaded
guilty first of all – Pietersen 1947 (1) SA 361 (A) it was affirmed that where
one accused pleads guilty and the other accused (who has pleaded not
guilty) needs him as a witness, their trials should be separated since the first
accused cannot be compelled to testify as long as he remains a co-
accused. However, where both State and accused prefer a joint trial,
despite the fact that some accused pleaded guilty and others not guilty, the
neglect to order separation of the trials will not constitute an irregularity –
Mkize 1960 (1) Sa 276 (N). However, in Liscoxo 1974 (2) SA 356 (O) and in
Ndwandwe 1970 (4) SA 502 (N), it was held that under such circumstances
the court should meromotu order a separation, regardless of any request by
any of the parties – especially if the accused is unrepresented and ignorant
of the provisions of s157.
• An application for a separation of trials in order to make a co-accused a
compellable witness for the applicant, but where the co-accused is not
willing to testify at the joint trial on behalf of the applicant, may be refused
by the court as it would be unfair to compel the co-accused to testify
at the applicant’s trial after the separation – Lungile 1999 (2) SACR 597
(SCA).

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• See also Shuma 1994 (4) SA 583 (ECD), where it was also stated that a
reasoned refusal to order a separation of trials does not amount to an
infringement of an accused’s constitutional right to a fair trial in terms of
s25(3) of the Constitution of the Republic of South Africa 200 of 1993
(currently s35(3)).

JOINDER OF ACCUSED IMPLICATED IN THE SAME CRIME

• Sec 155(1) allows for the joinder of accused who are charged with the
same offence (i.e. the same facts-in-issue can be held against them), but
only before evidence has been led in respect to any charge. Joinder is
therefore allowed for after plea proceedings but before the prosecution
begins to lead evidence at trial.
• See the definition of same offence in section on autrefois;
• Joinder is permissive - at the court’s discretion and not compulsory.
• Non-joinder of accused does not necessarily lead to an unfair trial (Xolo
1952) (Shaik 2008 (CC)).
• Whether a failure to join is unfair or prejudicial to the accused will depend on
questions of fairness determined by the circumstances of the offence
(mere procedural disadvantage is insufficient), and the definitions in
criminal law as to who can be defined as a co-perpetrator, accomplice
and accessory after the fact.
• persons committing separate offences at the same time and place may
be tried together – s 156 (Ramgobin 1986, Naidoo 2009);

STAGES OF JOINDER OF ACCUSED

S157(1) of the Criminal Procedure Act now provides that an accused ‘may be
joined with any other accused in the same criminal proceedings at any time
before any evidence has been led in respect of the charge in question’.
This section permits joinder of accused after arraignment but before the
prosecutor has commenced leading evidence. If evidence has been led
and joinder is regarded as desirable, the whole proceedings have to be
commenced de novo – Kabele 1974 (3) SA 223 (NC). If the prosecutor objects
to joinder, it appears that his objection, as dominuslitis, is final.

It has been held in Ngobeni 1981 (1) SA 506 (B) that other accused may be
joined after explanation of plea and questioning of an accused. The court
must, however, fully inform the accused of all that has already taken place in
court before asking his to plead.

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CHAPTER 13 & 17 - THE PROCESS OF THE TRIAL

INTRODUCTION (The right to a fair trial s35 of the Constitution)

The prosecution starts the trial. The onus of proof is on the prosecution
to establish a prima facie case against the accused. The onus of proof falls
on the state because of the constitutional rights of the accused. The accused
has a presumption of innocence, the right to silence and the right not to testify
(s35(3)(h)). The accused also has the right to present and challenge evidence
(s35(3)i), not to be compelled to give self-incriminatory evidence (s35(3)j), and
to be tried in an official language that he/she understands (s365(3)(k).

The seven basic principles of a trial are:

• The fair trial principle (Veldman v DPP 2006 (CC)); Dzukudu 2000 (CC)
• The principle of legality – all relevant common law, statutory law and
constitutional law of due process are followed
• The principle of judicial impartiality – a judge is a passive umpire and
must not descend into the dust of the arena (Nnasolu 2010)
• The principle of equality of arms – equal accusatorial parties – a balance
between the prosecution and the accused
• The principle of judicial control by allowing judge to make contempt
orders and arrest in facie curiae
• The principle of orality – evidence by witnesses vive voca - (Adendorff
2004)
• The principle of finality

A FAIR TRIAL

At the heart of the right to a fair criminal trial is for justice to be done and
to be seen to be done (Dzukuda 2000 (2) SACR 443 (CC)). The concept of
justice and a fair trial is closely related to the principle of legality and due
process.

The elements of a fair trial are set out in s35(3)(h) of the Constitution which
provides that every accused person has a right to a fair trial, which includes:
• theright to remain silent and not to testify during the proceedings.
• In terms of s35(3)(i) and (j) every accused has the right to adduce and
challenge evidence and not to be compelled to give self-incriminating
evidence.
• The concept of a ‘fair trial’ embraces fairness, not only to the accused
but also to society as a whole, and fairness involves:
Ø the right to be tried within a reasonable time,
Ø the right to legal representation,
Ø the right to be fully informed of the charge laid,
Ø the right to cross-examine witnesses, the right to call witnesses,
Ø theright to have evidence excluded in certain circumstances.

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The standards which a judicial officer should maintain in the questioning of

witnesses and the accused have been summarised in Mabuza 1991(1) SACR
636 (O) as follows:
• The court should not conduct its questioning in such a manner that its
impartiality can be questioned or doubted.
• The court should not take part in the case to such an extent that its vision
is clouded by the ‘dust of the arena’ and it is then unable to adjudicate
properly on the issues.
• The court should not intimidate or upset a witness or the accused so
that his answers are weakened or his credibility shaken.
• The court should control the trial in such a way that its impartiality, its
open-mindedness, its fairness and reasonableness is manifest to all
who have an interest in the trial, in particular the accused.
• A judicial officer can properly fulfil his demanding duties by guarding against
his own actions, is attentive to his own weaknesses (such as impatience),
personal opinions and whims and continually restrains them.

Sec 63 Child justice courts and conduct of trials involving children

Before the plea in a child justice court, the presiding officer must, in the
prescribed manner-
• inform the child of the nature of the allegations against him or her;
• inform the child of his or her rights; and
• explain to the child the further procedures to be followed in terms of this
Act.
A child justice court must, during the proceedings, ensure that the best
interests of the child are upheld, and to this end-
• may elicit additional information from any person involved in the
proceedings; and
• must, during all stages of the trial, especially during cross-examination
of a child, ensure that the proceedings are fair and not unduly hostile
and are appropriate to the age and understanding of the child.
No person may be present at any sitting of a child justice court, unless his or
her presence is necessary in connection with the proceedings of the child
justice court or the presiding officer has granted him or her permission to be
present

STRUCTURE OF COURT

§ S9 of Constitution: Everyone is equal before the law and has the right to
equal protection and benefit of the law.
§ S34: Everyone has the right to have any dispute decided in a fair public
hearing before a court.
§ S35: Every arrested person has a right to a fair trial, which includes:
Ø The right to be presumed innocent, to remain silent and not to testify
during the proceedings;
Ø To adduce and challenge evidence.

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VENUE OF THE COURT

§ The court must have jurisdiction to try a case;

§ An accused may object when brought before a court which lacks
jurisdiction;
§ If the accused fails to object and the trial runs its course and there is a
conviction, lack of jurisdiction will not help accused on appeal;
§ S149: Prosecutor or accused can apply for the removal of a criminal case
from one superiorcourt to another, but this will not be granted unless it is in
the interests of justice (effect = confer jurisdiction upon court which would
normally not be competent to try the accused).
§ NDPP or DDPP (with written authorisation) can direct that an offence
committed wholly or partially within the jurisdiction of one director be
investigated and tried within the jurisdiction of another, if he deems such to
be in the interests of justice. (See also s 111 of the CPA).

COMPOSITION OF THE COURT

Lower Courts (s93 ter)

§ Presided over by a magistrate;

§ IN THE MAGISTRATE’S COURT AN ASSESSOR IS A PERSON who, in
the magistrate’s opinion, may be of assistance at the trial of the case or
in the determination of a proper sentence, as the case may be. ie in the
magistrate’s court an assessor need not be skilled in any way, just needs
to be representative of the community from whence the accused comes.
§ The magistrate may summon one or two assessor(s) to assist him:
Ø At a bail application or sentence proceedings;
Ø If he deems such expedient for the administration of justice (factors to be
taken into account: cultural, social and educational background of the
accused; nature and seriousness of the offence; interests of the
community, etc).
§ The magistrate must summon one or two assessor(s) to assist him at the
trial if the charge is murder, rape, robbery or rape where bodily harm has
been inflicted, or indecent assault (Titus 2005).
§ In a lower court assessors may be drawn from a pool of lay personswho
do not necessarily have any legal knowledge.

Superior courts (ss145-147)

§ One judge or judge plus one or two assessor(s) with the necessary legal or
other relevant professional skills.
§ An “assessor” in the High Court is a person who, in the opinion of the
judicial officer has experience in the administration of justice (advocates,
attorneys, magistrates, law professors) or skill in any matter which will be
considered at the trial (e.g. Doctor, accountant, etc).
§
§ Presiding judge usually has discretion whether or not to sit with
assessors, but may rely on the recommendation of the Director of Public
Prosecutions (among other factors).

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Rights and duties of assessors

§ Before the trial commences the assessors must take an oath that they will
give a true verdict according to the evidence upon the issues to be tried.
§ As soon as the oath is administered, assessors are members of the court,
with the following provisos:
Ø Assessors may assist on questions of fact. A decision of the majority (ie
one judge and two assessors) on a question of fact will be the decision of
the court except where a judge sits with only one assessor, in which
case the decision of the judge will be conclusive.
Ø With regards to the question of the admissibility of a
confession/statement of accused (= question of fact) the judge decides
alone if he is of the opinion that such would be in the interests of the
administration of justice.
Ø Only a judge decides upon questions of law (including whether
something constitutes a question of law)(e.g. S174 application).
Ø In the superior court, a judge must give reasons for a decision where he
decides any question of law, or any question of fact (regardless of
whether he sits with/without assessors). In addition, he must give reasons
for the minority decision if he sits with assessors and there is a difference
of opinion on a question of fact.
§ Assessors have no part in sentencing, but a judge may seek their
advice in this regard (frequently done).
§ If an assessor dies or becomes unableto act (in the opinion of the judicial
officer) at any time during the trial, the judge may direct that the trial
proceed before the remaining members of court, or begin de novo.
§ “Unable to act” includes physical, emotional, mental illness, but excludes
other pressing commitments.
§ The prosecution, or an accused may apply for recusal of an assessor
where:
Ø personal interest in the proceedings is proved,
Ø assessor has conflict of interests,
Ø is biased,
Ø absent from proceedings;
Ø mental or other competency is at issue
§ As soon as an assessor receives information detrimental to accused which
has not been proved in evidence, he must retire from the case.
§ The assessor must show absolute impartiality.

IMPARTIALITY AND FAIRNESS OF JUDICIAL OFFICERS

Introduction

§ The CPA sets out certain rules of procedure which must be observed, but
the trial is otherwise subject to the management of the judicial officer.
Judge controls the trial and ensures the correct procedures are followed
(Mayekiso 1996).
§ Wilful disobedience of the judicial officer’s orders by the parties, the court or
the public, can lead to committal or a fine for contempt of court.
§ Important maxim – “Justice must be done and be seen to be done”.

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§ apart from control judge must ensure ‘justice’ at trial which refers to the
quality of the proceedings, i.e. involves the concepts of fairness to the
accused, courtesy to witnesses and an adherence to polite and proper
standards of behaviour.

Impartiality and courtesy

§ Judicial officer must endeavour to be absolutely fair to both prosecution

and defence.
§ S9 of the Constitution: Individuals have the right to equality before the law
and equal protection of the law.
§ S34 of the Constitution: Individuals have the right to have justiciable
disputes settled by an independent and impartial forum.
§ The standard which a judicial officer should maintain in the questioning of
the witnesses and accused (Mabuza):
Ø The court should not conduct its questioning in such a manner that its
impartiality can be questioned or doubted.
Ø The court should not take part in the case to such extent that its “vision
is clouded by the dust of the arena”.
Ø The court should not intimidate or upset a witness or accused so that
his answers are weakened or his credibility shaken.
Ø The court should control the trial in such a way that its impartiality, its
open-mindedness, its fairness and reasonableness are manifest to all
who have an interest in the trial, especially the accused.
§ Witnesses and accused should not be addressed by means of impersonal
terms “witness” and “accused”, but rather by their surname.
§ The judicial officer must be attentive to his own weaknesses, personal
opinions and whims, and must continually restrain them.

Audi alterampartem
§ No ruling should be made without giving both parties the opportunity of
expressing their views.
§ S25(3)(d): Every accused has the right to adduce and challenge
evidence.
§ See also S v Zuma.

Decisions solely upon evidence – “The Oath”

§ Judicial officer must base a decision solely upon evidence heard in open
court in the presence of the accused.
§ Judicial officer should have no communication whatever with either
party, except in the presence of the other.
§ Also, no communication with any witness, except in the presence of
both parties.
§ Evidence must be given upon oath, solemn affirmation or an admonition
to speak the truth.
§ Judicial officer, registrar or interpreter swears in the witness, but the
public prosecutor may not do so.
§ Witnesses must be allowed to give evidence in their own words, in their
own way and at their own speed.

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Fairness to the accused

§ Judicial officer should be patient with the accused and courteous at all
times.
§ Where the accused is undefended, the judicial officer has a duty to warn
and inform the accused of his rights and that he is given every opportunity
of conducting his defence adequately;
§ Dzukudu2000 (CC) at the heart of a fair trial is the need for justice to be
done and to be seen to be done);
§ A conviction will also be set aside if an unrepresented accused is
prejudiced by the judicial officer’s failure to inform him of his legal
rights;
§ The accused’s rights include:
Ø Right to cross-examine;
Ø Right to give evidence and cross-examine in his own language;
Ø Right to put his defence to state witnesses during cross-examination;
Ø Right to call witnesses;
Ø Right to testify and present argument to the court.
§ If the accused is unduly hampered by the court in his cross-examination
of state witnesses, this could result in his conviction being set aside;
§ The court is not entitled to question the accused during the course of the
trial, unless he testifies. The accused may, thus, defend himself by his
silence. However, in certain circumstances, accused’s silence may damage
his case (goes to evidential weight).
§ During the trial all knowledge of accused’s previous convictions should be
withheld from the court because such knowledge may prejudice the
accused. (Disclosed after conviction) (subject to s197, ie. cross-examination
as to bad character).
§ If such information is improperly disclosed to the court, the conviction will
generally be set aside, even if the judicial officer states that he was not
influenced by the information, unless the appeal court is satisfied that no
failure of justice resulted therefrom (excluding disclosure by the defence).

Recusal

§ There are no provisions in the CPA on recusal; only common law rules.
§ The judicial officer should be impartial, open-minded and uninformed and
take cognisance of only those facts about the case which are proven in
court.
§ General rule: a person who has an interest in or harbours any prejudice
in respect of the matter to be tried, should not adjudicate on such matter.
§ Application for recusal should be made at the beginning of the trial, to
obviate unnecessary complications (eg. Need to start the trial de novo).
§ However, if unavoidable the application may be made during the trial.
§ The application should be made in courteous and respectful terms and must
not be willfully insulting.
§ N.B: The principle applied in such an application is that a reasonable
person should, by reason of the action of the judicial officer, have
grounds for suspecting that justice will not be administered in an
impartial and unbiased manner (Herbst).

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§ Thus, it is the reasonable perception of the parties as to the impartiality of

the judicial officer that is important (Malindi).
§ The criterion for recusal is an objective one.
§ Generally, a judicial officer who is aware of his partiality/enmity, etc (or
perceptions thereof) will recuse himself of his own accord.
§ If the judicial officer refuses to recuse himself when he should have, his
refusal would create a good ground for review.
§ A judicial officer should not recuse himself unless he has asked the defence
to make its submissions.
§ The judicial officer who recuses himself becomes functus officio, the
whole trial becomes void and a new trial will be instituted.
§ Specific situations:
Ø It is grossly irregular for the judicial officer to hear an application for bail
when he has previously taken down a confession from the same
accused;
Ø It has been held that a magistrate is not disqualified because previously
in his judicial capacity he dealt with a similar charge against the accused.
Ø The mere fact that the judicial officer has knowledge of facts obtained in
civil proceedings in which the accused was concerned, does not
disqualify him from presiding at the subsequent criminal trial;
Ø Also knowledge of the accused’s previous convictions does not disqualify
the judicial officer from trying the case.

CHILDREN - See CJA summary – TRIAL P15-17

THE CASE FOR THE PROSECUTION

(a) Opening of the State’s case (a summary of the state case)

Before any evidence is led the prosecutor is entitled to address the court for
the purpose of explaining the charge and opening the evidence intended to
be adduced for the prosecution but without comment thereon –s150(1):
• The prosecutor should avoid any reference to evidence which may not be
admissible
• or to any contentious matter which may prejudice the case of the accused
• Such matters should be dealt with, as they arise in the course of the trial
and, if necessary, in the absence of the assessors.

(b) Introducing (adducing) evidence for the state

Language
• The presiding officer must make sure that the accused understands the
language used by witnesses.
• Where the language used by the witnesses is not one of the official
languages, an interpreter must translate the evidence.
• The interpreter must be sworn in, either upon taking office or at the
commencement of the case in which he acts as interpreter.
• If he is not sworn in, it amounts to an irregularity which may render the trial
abortive.

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• There are now 11 official languages at national level (s 6(1) of the

Constitution). Every accused has the right to be tried in a language which he
or she understands or, to have the proceedings interpreted to him or
her – s35(3)(k) of the Constitution.

Oral Evidence

• Every criminal trial must take place, and the witnesses must give their
evidence viva voce (ie orally), in open court in the presence of the
accused, except insofar as specific provision to the contrary is made by law
(s152).
• In terms of s212 evidence of certain formal matters may be given by
way of affidavit (eg pathology reports and fingerprint reports) subject to the
right of the opposing party, which may be either the accused or the State, to
object against such evidence.
• The prosecutor may then examine the witnesses for the prosecution and
where any document may be received in evidence before any court the
prosecutor shall read out such document in court unless the accused is in
possession of a copy of such document or dispenses with the reading
thereof (s150(2).
• Statements made by witnesses at a preparatory examination may not
be received in evidence before any court, the prosecutor shall read out such
document in court unless the accused is in possession of a copy of such
document or dispenses with the reading thereof (s150(2)).
• Statements made by witnesses at a preparatory examination may not be
proved in this manner, even where the accused admits the facts in the
record.
• S213 provides that a written statement made by a witness will, in
certain circumstances, be admissible as evidence to the same extent
as oral evidence given by such person. Such statements must be served
upon the opposing party, who may, at least two days before the
commencement of the proceedings object to the statement being tendered
in evidence. Where the opposing party is the accused (who might well be
undefended) the statement must be accompanied by a written notice setting
out that he has the right to object. Should no objection be raised, the
statement may ‘upon the mere production thereof’ be admitted as evidence
at the proceedings. The court may, however, meromotu or at the request of
either the State or the accused, order the witness concerned to attend court
to give evidence viva voce. An accused may not make use of the provisions
of s213 – he must himself testify under oath or not at all.
• The right to read out the accused’s evidence or statement made at a
preparatory examination is reserved for the prosecution only. If the
accused wants to give evidence at the trial he has to do so from the witness
box, where he is subject to cross-examination. But the statements of the
accused made at the preparatory examination form part of the evidence at
the trial (where the prosecutor has read out the record) and must be
regarded by the court.

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c) The calling of witnesses by the prosecution

As regards the calling of witnesses by the prosecutor and the nature of

the evidence (eg admissions and confessions by the accused), the
following aspects are important:
• A prosecutor is not obliged to call all the witnesses on the witness list.
Where it has been shown that any such witness may be of importance to
the defence, the prosecutor should, in any event, secure his presence at the
trial so that he may be called by the defence or by the court.
• In particular, the prosecutor is not bound to call witnesses whom he
believes to be untruthful, hostile to the prosecution or in favourable to
the accused.
• The function of a prosecutor is to present the matter to the court fully and
fairly and to conduct the case with judicial discretion and a sense of
responsibility – not in a vindictive spirit or with any excessive zeal in trying to
get a conviction, but as an officer of the court charged with the serious duty
of assisting the court in arriving at the truth.
• When a state witness gives evidence at variance with a statement in the
possession of the prosecutor, the prosecutor must, if the discrepancy is a
material one, immediately make the statement available to the defence or,
where the accused is unrepresented, disclose the discrepancy to the court.
• The prosecutor is free to call at the trial any witness even though their
names do not appear on the list which a DPP has to supply to an
accused who is arraigned in a superior court (s144(3). Wherever
practicable he should give notice that such witness or witnesses will be
called and a copy of their statement should be served on the defence. If due
notice has not been given a postponement will, where necessary, be
granted to the accused to prepare his defence on such new evidence.
• Once a state witness is in the witness box, the prosecutor may not
interview the witness privately, at least not without informing the court
before doing so and explaining why it is necessary to do so.
• In undefended cases, it is the duty of the prosecutor to present before the
court any information favourable to the accused which may come to his
notice. In defended cases, the prosecutor should place such information at
the disposal of the legal representative of the accused.

d) Examination-in-chief and cross-examination

• The defence is entitled to cross-examine each and every state witness

(s35(3)(i) of the Constitution). The right of cross-examination also exists in
respect of a co-accused who has elected to testify. It is the duty of a court to
assist an unrepresented and unsophisticated accused who shows an
insufficient understanding of his right to cross-examination and the
consequences of a failure to exercise it.
• It is the duty of the presiding officer to grant an accused, especially an
undefended accused, sufficient opportunity fully to cross-examine a
state witness in a manner acknowledged as reasonable cross-examination.
There must be no suspicion at all that the defence was hampered in its
cross-examination (eg that excessive interference with the defence’s cross-
examination took place).

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• The nature and extent of cross-examination is not always clear to an

accused and it is unfair to expect that he/she performs as competently
as an experienced legal practitioner. In circumstances where the
magistrate is aware of the accused’s defence it is desirable for him to assist
the accused by means of pertinent questions directed to state witnesses.
• The power to refuse a request to recall a witness for cross-examination or
even for further cross-examination is a power that should be exercised
sparingly by presiding officers, and then only when it is clear that the
request is made frivolously or as part of delaying tactics.
• Where an accused has already cross-examined the state witnesses and put
his defence to them, he suffers no prejudice if the court refuses the request
to recall a witness for further cross-examination made by his legal
representative who was appointed subsequently.
• Where the defence proposes to submit another version of any fact or
event testified to by a witness for the prosecution, there normally rests a
duty upon the defence to put its version to the State witness whose
evidence the defence will contradict in the course of its own case. It is only
as a result of proper cross-examination on these lines that the court will be
placed in a position to estimate the relative acceptability of the two versions.
If this rule is not followed, it may necessitate the recalling of State witnesses
and unnecessary waste of time.
• Assertions made on behalf of the accused during his cross-examination of
State witnesses and which are intended to reflect the defence case, may, in
exceptional circumstances, have the effect of curing the deficiency in the
case made out by the State where the evidence adduced by the State is
insufficient to establish a prima facie case.
• There exists no absolute rule that failure to cross-examine a witness
precludes the party in question from disputing the truth of that evidence. A
decision not to cross-examine, however, may often be a perilous one and
should be taken only after careful consideration.
• After every witness for the prosecution has been cross-examined, the State
may re-examine these witnesses on any matter arising from cross-
examination (s166(1)).

e) Close of state case

• After all the evidence for the prosecution has been disposed of, the
prosecutor must close his case.
• A presiding officer does not have the authority to close the State’s case if
the prosecutor is not willing to do so.
• If the prosecutor, however, after an application by him for the postponement
of the trial has been refused, refuses to lead evidence or to close the State’s
case, it is presumed that the State’s case is closed, and the judicial officer
should continue with the proceedings as if the prosecutor has indeed closed
the State’s case.

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DISCHARGE OF THE ACCUSED AT THE CLOSE OF THE STATE CASE

(s174)

• In terms of s 174 when the prosecution has failed to establish a prima

faciecasethe accused is entitled to ask the judgefor discharge.
• Discharge means that the court may return a verdict of not guilty
where there is insufficient evidence against the accused.
• The concept ‘insufficient evidence’ is to be interpreted as ‘insufficient
evidence on which a reasonable person could properly convict’. (In
other words when the evidence on behalf of the State is of such poor
quality that no reasonable person acting carefully could convict
thereon, the accused has to be discharged).
• The test of discharge applied at the end of the State’s case is
subjunctive; (subjunctive means that evidence on which a reasonable
person ‘might’ – not ‘will’ – convict), because the question of a conviction
is at this stage purely hypothetical or speculative, since one is not dealing
with facts which, at the end of the trial, are regarded as having been proved;
• The test for discharge is set out in the two legged Shuping common law
test:
Ø first, is there evidence on which a reasonable person might convict,
and
Ø secondly, if not, is there a reasonable possibility that the defence
evidence might supplement the State’s case. (The second leg was
interpreted to mean that where there was a reasonable possibility that the
defence case could fill in, or cure, the defects of the State’s case no
discharge would be allowed).
If the answer to either question is yes there should not be a discharge.
• The second leg of the Shuping test was criticized because it reduced the
burden on the State (which bears the primary burden of proof), and was an
infringement of the accused’s right to silence.
• In the CC case of S v Lubaxathe second leg of the Shuping test was
amended as follows:
Ø first an accused must be discharged at the end of the State’s case, if a
conviction would only be possible where the accused was forced to testify
and incriminate himself, and
Ø secondly the first approach would not apply in a case where the co-
accused and the State’s case against one accused might be
supplemented by the evidence of co-accused.

The practical effect of the Constitution on a determination of discharge:

The provisions of s35(3)(h) of the Constitution with regard to the presumption
of innocence, the right to silence and the right not to testify, have at least
three practical consequences impacting upon s174 of the Act:
Ø The court has a duty meromotu to raise the issue of the possibility of
discharge at the close of the case for the prosecution where it appears to
the court that there may be insufficient evidence that the accused
committed the offence.
• The discretion to discharge the accused should be exercised judicially
and not arbitrarily or capriciously.

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• Refusal of the court to discharge the accused upon the conclusion of the
State’s case is not in itself a ground for appeal or review if the accused
is eventually found guilty, See Mkize 1960 (1) SA 276 (N).
• If an accused’s application for discharge at the end of the State’s case
is successful, the director of public prosecutions (or public
prosecutor) may appeal in terms of s310. The magistrate’s finding as to
the facts may not be questioned, the State may appeal only on a question of
law. If the appeal is upheld the case is remitted to the court a quo and the
trial is proceeded with.
• A court has a duty to inform an unrepresented accused in a trial where
there are multiple charges of his right to apply for his discharge in respect of
a charge for which there is no evidence upon which the accused can be
convicted.
• Where a judge or magistrate sits with assessors, only he may decide
whether to grant a discharge; it being a question of law.

THE DEFENCE CASE

(a) Accused’s rights to be explained

If the accused is not discharged at the close of the State’s case, the

procedure laid down in s151(1) should be followed:

• the judge or magistrate must ask the accused (or his representative) if
he intends leading evidence for the defence.
• Not only must as undefended accused be informed that he is entitled to
call witnesses or ti give evidence himself, but also that he may remain silent.
• it is essential for the accused to be informed of his rights so that he
may make an informed and meaningful choice at this most important stage
of the proceedings.
• If the accused was not adequately informed of his rights (eg through an
interpreter if necessary) the conviction may be set aside on review.
• The fact that the accused’s rights have been explained should be properly
recorded.
• It is the task of the presiding judicial officer to explain the rights to an
unrepresented accused and such duty cannot in the ordinary course be
delegated to an interpreter.
• When an unrepresented accused experiences difficulty during cross-
examination, the court must help the accused in clarifying the issues,
formulating the questions, and putting his or her defence properly to the
witnesses.
• Similarly, where an undefended accused through incompetence or
ignorance fails to cross-examine a witness on a material issue, the
presiding officer should question the witness in order to reduce the risk of a
failure of justice.
• If the accused decides, after other evidence on behalf of the defence has
been led, to testify himself, the court may draw such inference from the
accused’s conduct as may be reasonable in the circumstances (s151(1)(b)).

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• In practice, the defence very rarely avails itself of the right to open by
addressing the court. This is because, in most cases, the full defence
version will have been put to the State witnesses in cross-examination and
will be known to the court.

(b) Witnesses for the defence

• The accused or his legal representative must call and examine the
witnesses for the defence. It is undesirable that a witness be present in
court before he gives evidence, as this might affect the weight of his
evidence – Manaka 1978 (1) SA 287 (T).
• Once an accused has placed his care in the hands of counsel, the counsel
has complete control. If counsel persuades the accused not to give
evidence, the accused may not subsequently on appeal challenge the
correctness of the verdict on this ground.
• If the accused insists on going into the witness box against counsel’s
advice, the advocate should withdraw from the case.
• It will constitute an irregularity, however, if the accused has not been
consulted as to whether he wants to give evidence or not.
• The prosecution will be entitled to cross-examine each witness called
by the accused and also the accused if he elects to give evidence:
Ø Cross-examination of the accused by the State should be conducted
with courtesy and without prejudice to the accused.
Ø It should not be conducted in an intimidating, offensive or mocking
manner.
Ø Questions should be asked in such a way as to afford the accused full
opportunity to answer them.
Ø Improper cross-examination by the prosecutor may lead to the
accused’s conviction being set aside on appeal or review.
• A judicial officer is entitled to question witnesses for the defence in order
to clarify unclear aspects of the case, but he may not cross-examine them.
• Lengthy questioning of an accused by a judicial officer is acceptable
• However the manner of questioning by a judge would constitute an
irregularity when questions put to an accused are belligerent or intimidating,
or are so repetitive or confusing, as to amount to judicial harassment.

(c) The accused’s right to silence

The accused cannot be compelled to give evidence on his own behalf. Any
finding that an accused’s silence constitutes evidence of guilt will be
directly in conflict with s35(3)(h) of the Constitution. No adverse inference
can be made against an accused merely by virtue of his exercise of his right to
remain silent. The exercise of this right has, however, certain consequences,
where it leaves the prima facie evidence of the State uncontested. If it can be
said, taking everything into consideration, including the lack of gainsaying
evidence against a prima facie case, that the State has proved its case beyond
a reasonable doubt, the accused has to be found guilty.

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(d) Formal admission by the accused

An accused or his counsel may admit any fact placed in issue. This absolves
the State of the duty of proving such fact.

(e) Re-examination of witnesses

After every witness has been cross-examined by the other party, the party who
called the witness may re-examine the witness, ie on any matter raised during
the cross-examination of that witness.

REBUTTING EVIDENCE BY THE STATE

If the defence, during the course of its case, introduces new matter which
the prosecution did not reasonably foresee, the State may be permitted,
after the close of the defence case, to present rebutting evidence in respect
of such matter.

Unless the most exceptional circumstances arise, the State will not be allowed
to introduce still further fresh matter in the course of its rebuttal, since the
introduction thereof would unduly interfere with the finality of criminal
proceedings.

CALLING OR RECALLING WITNESSES BY COURT, AND QUESTIONING

BY COURT

• A duty is cast on the court by s167 of the Act to subpoena and

examine, or recall, and re-examine, any person if his evidence appears
to the court to be essential to the just decision of the case.
• The above-mentioned duty arises only when the court is of the opinion that
the evidence in question is essential.
• The effect of this is that the court is in reality given a discretionas to
whether it will call such a witness.
• An accused who is in reality guilty should not be discharged because of
some defect in the State’s case, nor should an innocent man be
convicted because of defect.
• However, this power of recall and re- questioning should be sparingly
used, since it is generally not the function of the court to build up a case
which a negligent prosecutor has neglected to establish.

RECORDING OF EVIDENCE

The presiding officer has the duty to ensure that the evidence and all
proceedings are faithfully recorded, because the record is the only source
from which can be determined whether the proceedings were in accordance
with justice,

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CLOSING ADDRESS BY PROSECUTOR AND DEFENCE

• After all the evidence has been adduced, the prosecutor may address the
court in closing,
• after which the accused or their/his counsel may address the court
(s175),
• This section does not make it compulsory for the court to enquire of the
accused or his legal representative whether he wishes to address the court,
but usually such an enquiry should be made and the response thereto
recorded.
• If the accused is deprived of the opportunity to address the court by the
conduct of the judicial officer, it will be a fatal irregularity, unless it is clear
that he has not been prejudiced
• Where an accused refuses to address the court, he/she abandons such
right.

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CHAPTER 18 - THE VERDICT

INTRODUCTION

After the prosecutor and the accused or his/her legal representative have
addressed the court on the question whether the accused should be found
guilty or not guilty, the court must pass judgment/give a verdict. This may
require careful reasoning on the part of the judge. It is therefore
understandable that presiding judicial officers sometimes prefer to simply
postpone the trial in order to analyse the evidence placed before the court
before reaching a decision.

After the court has reached a decision, the presiding judicial officer will
deliver the court’s verdict as to whether the state has proved the guilt of
the accused beyond reasonable doubt. If the accused is found guilty, the
court will indicate the offence(s) of which he/she has been found guilty.
The accused need not necessarily be found guilty of the offence with which
he/she is charged. There are the so-called competent verdicts about which
the Criminal Procedure Act provides that an accused who has been charged
with a particular offence can be found guilty of another offenceif such
offence is proved by the evidence before the court. This finding of the court
is contained in its verdict, which is a verbal explanation of the finding and the
reasons for it.

A competent verdict must be related to the meaning of a same offence. See

the explanation of same offence in terms of the splitting of charges
(chapter 12) and the definition of autrefois aquit and autrefois convict
(chapter 14).

A very sensible provision is included in the Criminal Procedure Act in

connection with the verdict in order to prevent prosecutions from ending in
futility. S270 provides as follows:
If the evidence on a charge for any offence not referred to in the
preceding sections of this chapter does not prove the commission of
the offence so charged but proves the commission of an offence
which by reason of the essential elements of that offence is
included in the offence so charged, the accused may be found
guilty of the offence so proved.

All the essential elements of the lesser offence of which it is sought to convict
the accused must, however, be included in the offence actually charged. In
addition, all the elements of the lesser offence must be proved.

INFORMING THE ACCUSED OF A COMPETENT VERDICT

• Although it is not necessary that a competent verdict should formally be

mentioned in the indictment/charge sheet, it is desirable, in order to
avoid prejudice to an accused, that he should be informed of the
competent verdicts which can be brought in against him.

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An undefended accused should be forewarned of the pitfalls of a competent

verdict – Jasat 1997 (1) SACR 489 (SCA).
• The right to be informed with sufficient detail of the charge in terms of
s35(3)(a) of the Constitution includes the right to be informed of competent
verdicts on a charge.
• A failure to inform an accused person of a competent verdict amounts to a
violation of s35(3)(a) and is therefore a fatal irregularity which vitiates the
proceedings where the accused was convicted of an offence which
constitutes the competent verdict.

COMPETENT VERDICTS

(a) Verdict of guilty of attempt or being an accessory after the fact

Any person charged with an offence may be found guilty of an attempt to

commit that offence, or of an attempt to commit any other offence of
which he may be convicted on the charge, if such be the facts proved –
s256. Thus where A is charged with rape, he may be convicted of
attempted indecent assault.

A person may not, after having been tried on a charge of having committed
any offence, thereafter be tried on a charge of having attempted to commit
such offence, since he was at the first trial already in jeopardy of being
convicted of such attempt.

A verdict of being an accessory after the fact is a competent verdict on a

charge of having committed such offence, provided that the facts proved are
such as to justify such a conviction.

(b) Competent verdicts on a charge of murder and attempted murder

Culpable homicide; assault with intent to do grievous bodily harm;

common assault; robbery; public violence; pointing a fire-arm, air-gun or
air-pistol; exposing an infant; and disposing of the body of a child with
intent to conceal the fact of its birth.

(c) Competent verdicts on a charge of rape or attempted rape

Assault with intent to do grievous bodily harm; indecent assault; common

assault; incest; the statutory offence of unlawful carnal intercourse, or of
committing any immoral or indecent act, or the soliciting or enticing of an
immoral or indecent act with a girl under a specified age; and the statutory
offence of unlawful carnal intercourse, or of committing any immoral or
indecent act, or the soliciting or enticing of an immoral or indecent act with a
female idiot or imbecile.

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(d) Competent verdicts on a charge of robbery

Assault with intent to do grievous bodily harm; common assault; pointing a

fire-arm, air-gun or air-pistol in contravention of any law; theft; receiving stolen
property knowing it to have been stolen; possession of goods without being
able to give a satisfactory account of such possession (in terms of s36, Act 62
of 1955); and acquiring or receiving stolen property without having reasonable
cause to believe that the person disposing of the property is the owner or duly
authorised by the owner (in terms of s37, Act 62 of 1955) – s260.

(e) Miscellaneous remarks

In each of the above-mentioned cases the evidence necessary to
constitute the lesser offence must be before the court, since the
provisions in question are not intended to empower the courts to convict
the accused without the necessary proof of his guilt on the lesser
offence.

In cases where a possibility exists of the accused being found guilty of a

similar offence to the one charged, the prosecutor should, if a verdict of guilty
of the second offence is not a competent verdict on a charge of having
committed the first offence, specifically include the secondoffence as an
alternative count in the indictment or charge. An accused should, therefore,
be charged with driving a vehicle while under the influence of intoxicating
liquor (‘drunken driving’) and alternatively driving a vehicle while the
concentration of alcohol in his blood is not less than 0,08 g per 100 ml of
blood.

AMENDMENT OF VERDICT

When an incorrect judgment or sentence is delivered or passed, the court

may, before or immediately after it is recorded, amend the judgment or
sentence – ss176 and 298. The interpretation of this section by the courts is
that it is applicable only when the mistake made by the court is one which is
inherent in the judgment or sentence, eg where the court has no
jurisdiction or if the judgment is unrelated to the merits of the case. Where
incorrect facts have been placed before a court upon which the court has
imposed a proper sentence, the court need not correct such sentence as being
a wrong sentence in terms of s289 when the truth is later discovered.

The words ‘immediately after’ are not synonymous with ‘instantaneously’, but
indicate a reasonable period. What a reasonable time is will depend on the
circumstances. After a reasonable time has elapsed, the judge or
magistrate is functus officio, and no longer has the power to amend the
mistake. He ought to try to prevent the failure of justice by reporting the
position to the High Court and by requesting a review. Where the case is
subject to automatic review, he ought to draw the attention of the High Court
to his error. The magistrate is not authorisedmeromotu to set aside a wrong
conviction. However, a judicial officer is permitted to effect linguistic or other
minor corrections to his judgment without changing the substance thereof.
This common law approach should be read in conjunction with s176.

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CHAPTER 19 - THE SENTENCE

1. SENTENCING

(a) Sentencing discretion

§ A court has a discretion in imposing a sentence.

§ This discretion is not arbitrary and is limited by legislature, and the
guidelines laid down by the higher courts.
§ Certain factors are important when exercising a discretion:
Ø The jurisdiction of the court;
Ø The kind of punishment;
Ø The maximum or minimum penalty which may be imposed (common law
and statutory limitations);
Ø The personal circumstances of the accused (age, marriage, job, etc);
Ø The interests of the community;
Ø The seriousness of the offence.

(b) Principle of sentencing

§ Punishment should fit the crime, be fair to society and be blended with a
measure of mercy according to the circumstances (Rabie).
§ Sentencing should take into account the purpose of punishment which is to
deter, prevent and rehabilitate the accused.

(c) Mitigating and aggravating factors

When considering sentence, the court must take into account both mitigating
and aggravating factors.

Youth as a mitigating factor:

§ Generally, juveniles over 14 but younger than 18yrs are sentenced more
leniently than adults.
§ Reason: Juveniles cannot be expected to act with the same measure of
responsibility as adults (lack necessary insight and experience and
therefore more prone to commit thoughtless acts).
§ The incorrect form of punishment may easily result in a more distorted
person eventually being returned to society.
§ Juveniles are not readily imprisoned.

Previous convictions as an aggravating factor

§ A person who is convicted time and again of similar offences will
progressively be punished more severely.
§ This is because the offender, by continuing to commit offences, displays a
disregard for the law.
§ The heavier the penalty is, the more likely it is to deter the offender from
committing more crimes.

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2. PENALTY PROVISIONS

Most statutory offences are enacted with an attendant penal provision.

Imprisonment may normally be imposed for these crimes only if it is specifically
provided for. The same goes for a fine. If a penal provision provides for a fine
or imprisonment (e.g. R1000 or 1 year’s imprisonment), the court has a
discretion to impose either a fine or imprisonment, but not both. It may not, for
instance, impose imprisonment directly and as an alternative to a fine.

(a) The Adjustment of Fines Act 101 of 1991

All penal provisions providing for a fine must, however, be read together with
the provisions of the Adjustment of Fines Act 101 of 1991. The ratio between
fine and imprisonment is determined by the standard jurisdiction of the
magistrate’s court, which at present is R20 000 for each 12 months’
imprisonment. A penal provision allowing a penalty of ‘not more than R1 000 or
6 months’ imprisonment’ should thus be construed as providing for ‘not more
than R10 000 or 6 months’ imprisonment’.

(b) Minimum sentences (Act 105 of 1997)

Statutes which prescribe minimum sentences have been few and far between
in South African law for some decades, but the position has changed with the
passing of s51 of the Criminal Law Amendment Act 105 of 1997. This
provision, in essence, provides for the imposition of minimum sentences
for a wide range of the more serious crimes. For premeditated murder, and
rape where aggravating factors are involved (these factors are circumscribed),
life imprisonment is prescribed. Specific minimum terms (down to 5 years’
imprisonment) are prescribed for a wide range of other crimes, especially when
committed by gangs or crime syndicates, or by law enforcement officers. Only
High Courts and regional courts may impose these sentences. The sentencing
courts are also not allowed to suspend any part of these prescribed sentences
(s51(5)).
Exceptions:
• If the sentencing court is satisfied that there are ‘substantial and
compelling circumstances’ why a lesser sentence than that prescribed
is justified in a particular case, it may impose such lesser sentence
(s51(3)(a)).
• If the cumulative effect of all the mitigating factors that a court would
traditionally take into account when imposing sentence, justifies a
departure from the prescribed sentence in a particular case, the court
should consider doing so.
• When the imposition of the prescribed sentence would amount to an
injustice in that particular case, the court should act to prevent such
injustice, and impose a lesser, appropriate sentence.
• The prescribed minimum sentences are not applicable to an offender of
under the age of 16 years when the offence is committed. (Budaza 1999
(2) SACR 491 (EC)).

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3. THE FORMS OF PUNISHMENT WHICH MAY BE IMPOSED

S276 lists the sentences which may generally be passed:

§ Imprisonment;
§ Committal to a treatment centre;
§ Fine;
§ Correctional supervision.

S290 and 297 list the various sentences which may be imposed on
juveniles:
§ Suspension of sentence of various conditions;
§ Conditional/unconditional postponement of sentence;
§ Caution and discharge.

The primary decision: Whether to remove the offender from society or whether
to punish him within the community (“alternatives to imprisonment”).

(a) Imprisonment

§ The decision not to imprison is often based on the presence of one or more
mitigating factors (eg. Youthfulness; no criminal record).
§ Aggravating factors calling for imprisonment include : the seriousness of
the particular offence; the dangerous nature of the criminal and previous
convictions.
§ The advantage of imprisonment, as a form of punishment, is that it
enables the court to remove a person who constitutes a danger to society,
from the community.
§ The disadvantages are:
Ø It is very expensive (cost of imprisonment and support of next of kin);
Ø Many of the people with whom the offender is incarcerated are
hardened criminals (reduces prospects of rehabilitation);
Ø The prison environment is not conducive to preparing the prisoner to
live in a free society.

(b) The various forms of imprisonment

Ordinary imprisonment for a period determined by the court

§ Most common form of punishment.

§ In imposing imprisonment, all criminal courts are limited by their jurisdiction
and the punishment prescribed for the particular crime.
§ Limits for common law crimes (general/ordinary jurisdiction)
Ø Regional Court jurisdiction = 15 years;
Ø District Magistrates court = 3 years
Ø High Court – any term (subject to minimum terms of imprisonment).
§ Limits for statutory crimes: General jurisdiction applies subject to the
penal provisions in the statute (eg. A number of these statutes empower
lower courts to impose terms exceeding the general jurisdiction such as
Drugs and Drug Trafficking Act).

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§ S284: No court may impose a sentence of less than 4 days imprisonment,

unless the sentence is that the offender be detained until the ‘rising’ of the
court (ie. released before next case called).
§ The term must be stipulated by the court.
§ After the abolition of the death sentence, periods of imprisonment for 40
years have been readily imposed for a serious crime (used to rarely impose
more than 25 years).
§ Sentences of imprisonment may normally be imposed in conjunction with
other forms of punishment such as fines or correctional supervision.
§ A term of imprisonment may be partly or fully suspended.

Imprisonment for life (s276)

§ Can only be imposed by the High Courts.

§ With the abolition of the death sentence, life imprisonment is the most
severe sentence the courts can impose (used to valuable alternative to
death sentence).
§ Life imprisonment is an indeterminate sentence, because when it is
imposed, it is unknown for how long the offender will be imprisoned.
§ In terms of the Correctional Services Act, a prisoner has to serve at least 25
years in prison, after which he may be considered for parole (determined by
courts who imposed the sentence with the assistance of a parole board
report).

Declaration as a dangerous criminal (s286A)

§ Only regional and high courts may impose such a sentence.

§ The sentence is indeterminate. The court has to determine a date when the
offender has to appear before the court again.
§ The duration of the initial imprisonment may not exceed the court’s general
jurisdiction.
§ The sentence may only be imposed if the court is satisfied that the person
“represents a danger to the physical or mental well-being of other persons
and that the community should be protected against him” (eg.
Psychopaths).
§ The parole board dealing with the prisoner’s case must submit a report to
the court on the date determined by the court for the reappearance of the
dangerous criminal.
§ The report should deal with the conduct of the prisoner, his adaptation,
training and mental state and the possibility of a relapse into crime.
§ When the prisoner reappears in court the court must reconsider its original
sentence taking into account the report and all other evidence adduced at
the hearing.
§ The court will then decide whether to order the continued incarceration or
the release of the offender.
§ The release can be conditional and the sentence may also be converted
into correctional supervision.

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Declaration as a habitual criminal (s286)

§ A high or regional court may declare an offender to be an habitual criminal

only if the court is satisfied that:
§ The person habitually commits offences, and
Ø The community should be protected against him.
§ The second requirement prevents a person who repeatedly commits petty
offences from being declared a habitual criminal.
§ The court has no discretion to impose this form of imprisonment if :
Ø The offender is under the age of 18 years, or
Ø The court is of the opinion that the offender deserves imprisonment for a
period exceeding 15 years.
§ In practice, the court usually will not declare an offender an habitual
criminal unless he has been previously warned that such a sentence may
be imposed on a further conviction.
§ A person who is so declared is kept in prison for at least 7 years, after which
he may be considered for parole if the Parole Board finds such to be
desirable (eg. Reasonable probability he will abstain from committing crime
in future).
§ 15 years should be the maximum duration of such imprisonment (any period
longer than this would probably be unconstitutional).

Periodical imprisonment (s285)

§ Prisoners are imprisoned for short periods (24 to 48 hours at a time).

§ Sometimes called “weekend imprisonment” because the prisoners are
usually imprisoned over weekends, but the periods may run during the
week.
§ After each period of incarceration, they are released to continue their normal
existence.
§ S285(1): Periodical imprisonment may be imposed on conviction for an
offence other than an offence for which a minimum punishment is
prescribed or “in lieu of” other punishment.
§ Unlike ordinary imprisonment, periodical imprisonment is imposed for a
period expressed in hours.
§ The periodical imprisonment may not exceed 2000 hours, but may not be
less than 100 hours.
§ Rationale: Severe form of punishment which nevertheless does not disrupt
the prisoner’s family life (eg. Can still earn a living and support dependents).
§ This form of imprisonment is less popular today than when it was introduced
in 1959.

Imprisonment from which the prisoner may be released on correctional

supervision (s276(1)(i)

§ The Commissioner of Correctional Services is empowered to release any

prisoner who has been imprisoned, on correctional supervision for the
remainder of his sentence.

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§ Provided the sentencing court provided the Commissioner with such

discretion by making it clear that imprisonment was imposed in terms of this
provision.
§ This only applies if imprisonment for 5 years or less is appropriate for the
offender’s crime (indicates the seriousness of the type of crime it is
appropriate for).
§ The maximum term of this form of punishment is restricted to 5 years per
crime.
§ In practice is that the prisoner is evaluated immediately as he starts his
prison term.
§ The Parole Board has to advise the Commissioner on the advisability of
releasing the prisoner on correctional supervision.
§ The prisoner must serve at least 1/6th of his total sentence before he can be
released.
§ From the moment of release, the offender is treated as a “probationer”.
§ If the “probationer” does not comply with the conditions of his correctional
supervision, he may be arrested and imprisoned to complete the rest of his
prison sentence.

(c) Sentences for more than one crime

§ Often an offender is convicted of more than one offence in a trial.

§ The court retains full sentencing jurisdiction for every separate crime the
accused has been convicted of.
§ In terms of s280(2), all sentences of imprisonment run
cumulatively/successively, ie. the next sentence commences after the
completion of the previous one unless the court orders otherwise.
§ However, sometimes the total punishment becomes unduly severe.
§ Then the court has to reduce the “cumulative effect” of the various
sentences in some way.
Ø The preferred method is to order that the whole or part of the sentence
run concurrently.
Ø Every sentence may also be reduced so that the total is not excessive.
(Problem: the sentence for any one of the offences will seem too light, if
viewed in isolation).
Ø Some of the counts can be taken together for purposes of sentencing.
(Problem: Difficulties may arise on review or appeal, if some of the
convictions are set aside).
Ø Suspension of a portion of the sentence.

Further provisions on imprisonment:

§ Any reference in a statute to a maximum period of imprisonment of less

than 3 months must be construed as a reference to a period of 3 months
imprisonment.
§ If a sentence of imprisonment is set aside on appeal or review and any
other sentence of imprisonment is imposed, the latter may be ante-dated to
a specified date (which is not earlier than the date on which the original
sentence was imposed) if the court is satisfied that the prisoner has served
any part of the originally imposed sentence.

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(d) Fine

When may a fine be imposed

§ This simple sentence is most commonly imposed in S.A. courts (for less
serious offences).
§ The court orders the offender to pay an amount of money to the state as
punishment for his crime.
§ Courts exercise a wide discretion to impose fines (cannot impose if statute
does not mention a fine in its penal provision).
§ All fines must be cumulative (not concurrent).
§ Three factors must be considered as to whether to impose a fine or not:
Ø The crime should not be so serious that imprisonment is called for.
Ø The offender must have some financial means to pay the fine (or access
thereto).
Ø With crimes committed for financial gain, a fine should be imposed which
indicates that crime does not pay.

The amount of the fine

§ Subject to any statutory provisions, the amount of the fine is normally left to
the discretion of the court.
§ The court’s discretion is limited to the amount of its general jurisdiction:
Ø District Magistrates court = R60 000
Ø Regional court = R300 000
§ In assessing quantum, the court should be guided by the accused’s means
(if a court decides to impose a fine with the intention of keeping the offender
out of prison, there is no point in imposing a fine beyond his means).
§ However, lack of means of the accused does not warrant so moderate a
fine that it does not reflect the gravity of the offence in question.
§ Note: The same fine will punish the poor man much more heavily than the
rich man.
§ Thus, the court must determine how heavily the fine should punish the
offender, and then determine the amount that will punish that particular
offender as heavily as he deserves.
§ The court will have to make purposeful inquiries to determine the means of
the accused.
§ “Means” includes savings, monthly income, and other possessions.
§ If necessary, it will require accused to sell his assets to obtain the necessary
funds.
§ Recent trend is to consider accused’s access to funds from family and
friends.

Recovery of the fine

§ If accused can pay the fine immediately, there is no problem.

§ Various methods are employed to recover the fine once it is imposed if it is
not paid immediately.

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Imprisonment in default of payment

§ Almost all fines are imposed with an alternative period of imprisonment

already added to the sentence (even if the penal provision does not
specifically provide for such alternative).
§ This is called “alternative imprisonment’.
§ The period may not exceed the limits of the court’s jurisdiction.
§ The ratio between the fine and the alternative imprisonment should always
be rational.
§ The sentence could also be a fine plus imprisonment, and the failure to pay
the fine could result in an alternative prison sentence (but, the prison
sentence and alternative prison sentence taken together cannot exceed the
court’s jurisdiction).
§ In practice, if the offender cannot pay his fine immediately, he is detained to
undergo the alternative imprisonment.

Deferment of payment of the fine

§ S297(5): The court can defer payment of the fine, or order its payment in
instalments, but not for longer than five years after the imposition of the
sentence.

Further relief after start of the prison term

§ If an offender has started serving the alternative imprisonment, the court

may at any stage before termination of the imprisonment order his release if
he agrees to pay the rest of the fine (as determined by the court).
§ A prisoner undergoing alternative imprisonment may be released to
correctional supervision.

Alternative methods

§ Hardly ever utilised.

§ Eg. Deduct the amount from accused’s salary; attachment and sale of
immovable or moveable property.

(e) Correctional Supervision

§ New form of punishment introduced in 1991.

§ The sentence entails supervision of the offender (called the ‘probationer’)
with the view of correcting the wrongdoer (through education and
rehabilitation programmes) and the wrongdoing.
§ Excellent alternative to imprisonment.
§ The sentence is executed in the community where the offender normally
works and lives (“community based” form of punishment).

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The standard measures would include:

§ House arrest: Means confinement to the home. Exceptions would be to

allow the probationer to go to work, do shopping and attend religious
gatherings.
§ Community service: Service rendered in the interests of the community
without receiving remuneration (Eg. Cleaning parks, working at the SPCA).
16 hours per month would typically be required.
§ Monitoring: Entails a state official checking whether the probationer actually
complies with the conditions of sentence.
§ Various other measures include: Compensation of the victim, supervision by
a probation officer and presentation of various life skill courses.
§ Community service should not be seen as a soft option, as it has a high
penal content.

The various forms of community service

Community service can be imposed as follows:

§ As a sentence in itself, but it may not exceed 3 years (and may not be
imposed without a report by a probation or correctional officer).
§ As a condition to a suspended sentence or to postponement of sentence
(see below).
§ As imprisonment followed by correctional supervision.
§ When the Commissioner of Correctional Services is of the opinion that a
prisoner is a suitable candidate to be released on community service in lieu
of the remaining terms of imprisonment.

The penal value of community service

§ The penal content can be increased or decreased through the imposition

of conditions (eg. Increasing the number of hours for community service;
reducing the hours the probationer is allowed outside the home).
§ Because of its high penal content, community service is normally not
imposed if some lighter form of sentence is sufficient punishment for the
crime.
§ Community service has been imposed as a sentence for murder and rape,
etc.
§ However, because the sentence cannot exceed 3 years, it is not a
sentence that readily lends itself to very serious crimes.
§ The latest trend seems to be that the courts are moving away from
community service.

Factors influencing the imposition of community service

§ It may be imposed for any offence (unless penal provision provides for
imprisonment only).
§ It can be imposed in conjunction with any other form of punishment.
§ It is the type of person who committed the crime that will determine whether
correctional supervision should be imposed (not necessarily the seriousness
of the crime).

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§ There are two types of offenders: Those that should be removed from
society, and those that should be punished, but not removed from society.
The latter should get community service.
§ Another factor that has been stressed is the rehabilitative value of
community service (greater than for instance, imprisonment).
§ The court must decide the composition of the sentence.
§ The conditions may not be left to the discretion of the Department of
Correctional Services.

Execution of Community Service:

§ Community service is executed by the personnel of the Department of

Correctional Services.
§ If the probationer proves not to be a suitable candidate for community
service, the Commissioner or probation officer should advise the court
thereof. If the court agrees, it may impose any other proper sentence.

(f) Committal to a treatment centre (s296)

§ An offender may be committed to a treatment centre in addition to or instead

of any other sentence.
§ Treatment centres are established in terms of the Prevention and Treatment
of Drug Dependency Act of 1992.
§ This form of punishment is aimed at people who are dependent on alcohol
or drugs and in consequence of which his own family’s welfare is harmed.
§ An investigation is carried out to establish whether the offender manifests
such deviations (including a probation officer’s report).
§ Detention in a treatment centre is for an indefinite period, but if the offender
is not released within 12 months, certain reports must be supplied to the
Director of Treatment Services.

5. JUVENILE OFFENDERS (Child Justice Act)

• Diversion from the criminal process is the central feature of the Child Justice
Act
• This means that a child is not punished but subject to a number of
conditions of diversion
• These conditions include restorative justice and community based
measures
• Sentencing takes place only when the prosecution determines that a
criminal trial is required for the appropriate reasons and the trial and
sentencing takes place in a child justice court
• Some of the criteria and sentences which may be imposed by a child justice
court:
Ø Sec 69 Objectives of sentencing and factors to be considered
Ø Sec 77 Sentence of imprisonment
Ø Sec 69 (4) factors
Ø Sec 76 Sentence of compulsory residence in child and youth care
center
Ø Sec 75 Sentences involving correctional supervision

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Ø Sec 74 Fine or alternatives to fine

Ø Sec 73 Restorative justice sentences
Ø Sec 72 Community-based sentences
Ø Sec 78 Postponement or suspension of passing of sentence

See summary of CJA pg 2-4

6. CAUTION and DISCHARGE

A court may discharge any offender with a mere caution (s297(1)(c)). This
is the lightest sentence which the law permits. Although the discharge has
the effect of an acquittal, the conviction is still recorded and counts as a
previous conviction.

7. POSTPONEMENT/SUSPENSION OF SENTENCING (s297)

Suspended sentence
• Court imposes a sentence at trial but suspends its execution subject to
certain conditions for a stated period of time. If the conditions are not
breached by the offender then the sentence falls away after the end of the
period.
• All imposed sentences may be suspended, although it is mostly done with
imprisonment and sometimes with fines or correctional supervision. The
suspension of other forms of sentence is not realistic.
• Sentences which are suspended are imposed in full but subject to certain
conditions.
• Wholly suspended sentence - A sentence is wholly suspended and is not
executed, unless the conditions for its suspension have been broken by
the offender.
• Partly suspended sentence -The unsuspended portion of the sentence is
executed and the suspended portion is not, unless the conditions are not
complied with.

Postponement of sentence
• Court does not impose a sentence at the end of the trial but postpones
sentence subject to a number of conditions. If these conditions are
breached the court summons the offender and imposes the sentence.
• This may be done conditionally or without any conditions.
• In such a case the offender is released (usually by discharge and caution),
but may be ordered to appear before the court at some later date.
• A postponed sentence may or may not have conditions attached to it.
• Period of postponement may not exceed five years.

Sentence for offence for which a minimum penalty is prescribed

A court may not suspend or postpone a sentence for which a minimum penalty
is prescribed.

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Suspension of Sentence
Postponement
• Court may postpone passing • Sentences may be
of sentence for maximum of 5 years; suspended (wholly/partially)
• May release the offender subject to conditions:
unconditionally, or on one or more • Mostly done with
conditions: imprisonment and fines.
• The offender is subsequently called upon • It has two main functions:
to appear in court before the expiry date of § To serve as an alternative to
the postponed period; imprisonment in situations where
§ If the offender is not called upon to the offender cannot afford a fine
appear before the court, or and where other forms of
§ If the court finds that the conditions have punishment are improper, mainly
been met; because the offence was not so
• thenno sentence is imposed and the serious.
result of the trial is a caution for record § To serve as individual deterrent
purposes. to the offender as it hangs like a
sword over his head.
• Max: 5 years-linked with certain
conditions.

The function of suspension:

Ø To serve as alternative to imprisonment in situations where the offender
cannot afford a fine and where other forms of punishment are improper,
mainly because the offence was not particularly serious; and
Ø To serve as an individual deterrent to the offender as it hangs like a sword
over his head.
Ø The maximum term for which a sentence may be suspended is 5 years.
Ø A suspended sentence is closely linked to its conditions of suspension.
Ø Must have attached conditions otherwise it would not be a legally
enforceable form of sentencing.

The conditions of suspension (and postponement):

When considering the conditions of suspension or postponement, it is useful to
distinguish between negative and positive conditions:
Ø Negative conditions are the most common conditions and require the
offender not to repeat the crimes specified.
Ø Positive conditions require positive action by the offender in order to fulfil
the conditions of suspension or postponement.
Ø When positive conditions are imposed, they are usually combined with a
negative condition as well.
Ø Examples of positive conditions include compensation, community
service, correctional supervision, submission to remedial instruction,
or treatment, the attendance of courses, or treatment at specified
centers, etc.

The basic requirements of suspension:

Any condition of suspension has to conform to three basic requirements:
Ø It must be related to the committed offence. This relationship must be
clear. This requirement is aimed mainly at negative conditions, so that a

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sentence for assault is, for example, only suspended on condition that a
similar offence is not committed.
Ø It must be stated clearly and unambiguously, so that the offender will
know exactly what is expected of him. The crimes which an accused should
not repeat must be clearly defined.
Ø The conditions must be reasonable. It should not be worded in such a
way that a petty offence may trigger a severe suspended sentence.

Breach of conditions of suspension:

Ø The audialterampartem rule is applied and offender given opportunity to
explain the breach.
Ø If offender fails to give a reasonable explanation the suspended sentence
becomes operational.
Ø The court may decide to continue suspension but subject to further
conditions.
Ø The court’s decision is subject to review but not appeal.

Community service consists of any service rendered without remuneration,

which is to the benefit of the community. It is in actual fact a different form of
punishment which is imposed under the guise of a condition of suspension. It
is a form of punishment with many advantages. It is not restricted to less
serious offences, but can be imposed for serious offences where appropriate.
However, community services is not normally appropriate for recidivists or
offenders who are suffering from some form of personality disturbance.

8. COMPENSATION
• The CPA provides for compensation in terms of s300,
• any convicted person who has caused damage to or loss of property of
another person through his crime may, in certain circumstances, be ordered
to compensate the victim.
• Such an order then has the effect of a civil judgment.
• The amount of compensation which may be ordered in the High Court is
unlimited, but in the case of the regional and magistrates’ courts it is
presently limited to amounts of R300 000 and R60 000 respectively. These
amounts are determined by the Minister of Justice by way of a notice in the
Government Gazette.
• A court may act in terms of s300 only when requested to do so by the
injured party, or the prosecutor acting on the instructions of the injured
person (there must be proof of this authorisation).
• It is a separate civil enquiry into the amount of damages.
• The court should explain to the parties (including the victim) the nature of
the proceedings and must afford them the opportunity to lead evidence and
to present argument.
• The same calculation of the amount of damages applies as in civil claims.
• Evidence already led at the criminal trial is also taken into consideration.
• The compensation order may be given only in respect of direct loss of
damage.
• Restitution (s301) may be awarded at the request of a bona fide byer of
stolen goods that he be compensated out of the money taken from the
convicted thief.

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CHAPTER 20 REVIEW

REVIEW: A CONSTITUTIONAL RIGHT

• S35(3)(o) of Constitution states that every accused person has the right
to a fair trial, including the right to have recourse by way of appeal or
review to a higher court than the court of the first instance (i.e. a
magistrates court).
• The right to fair trial is the standard against which a request for review will
be assessed.

CATEGORIES OF REVIEW
There are three distinct categories of review: (1) statutory; (2) common law;
and (3) other legislative judicial reviews.

Statutory review: this is the most important method whereby the

proceedings of a lower court is brought before the High Court (as a court of
higher instance) for a re-examination of irregularities or illegalities of the
proceedings of the lower court. These types of reviews are contemplated by
s22 of the Superior Courts Act of 2013 and the various provisions (see
below) of the Criminal Procedure Act 51 of 1977.

S22(1) of the Superior Court’s Act regulates the grounds on which review
procedure may be instituted:
Ø Absence of jurisdiction by the court;
Ø Interest in the cause, bias, malice or corruption by the presiding judicial
officer;
Ø Gross irregularity in the proceedings; and/or
Ø The admission of inadmissible or incompetent evidence, or the rejection
of admissible or competent evidence.

The Criminal Procedure Act provides for various proceduresby which the
High Courts may review criminal proceedings in the lower courts, and by
whom such review procedure may be instituted. The following review
procedures are provided for in the CPA:
Ø Automatic review in terms of s302;
Ø Extraordinary review in terms of s304(4);
Ø Review of proceedingsbefore sentencing in terms of s304A;
Ø Set down of case for argument in terms of s306.

Common law review: The second category of review procedure is of

common law origin and includes the High Courts’ common law inherent
jurisdiction to review, which power is set out in s173 of the Constitution.
The High Court is endowed with an inherent jurisdiction to review the
proceedings of lower courts, administrative authorities, or tribunals and
to set aside or to correct errors in the proceedings if it appears to be in the
interest of justice, or to test the validity of proceedings of such institutions in
order to prevent injustices or miscarriages of justice. However, the courts’
inherent power must be exercised sparingly and may not be used to correct

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mistakes made by any one of the parties, and certainly not in order to rectify a
failure of the prosecution to lead important evidence.

Other category of judicial review: The third category of judicial review has
been referred to as that category which comprises reviews provided for by
other legislation. The jurisdiction to review conferred upon a court or a judge
thereof through such legislation, is a power to review which is far wider than
the powers which it possesses under either the Superior Court’s Act or
Criminal Procedure Act.

THE DIFFERENCE BETWEEN APPEAL AND REVIEW PROCEDURES

Both are inherently aimed at setting aside a conviction and/or sentence.

REVIEW APPEAL
Concerned with irregularities in Concerned with the substantive
proceedings. It does not necessarily correctness of the decision, based on
mean the decision of the court is the facts/merits of the case on
wrong, but the method employed record and the law relevant to such
was mistaken, thereby preventing the facts (eg. Judicial Officer finds
accused from having his case fully accused guilty, when it has clearly not
and fairly determined. been proven).
Can only be brought on the grounds May be brought against the findings
of specific procedural irregularities of a lower court on any point of law
set out in S 22 of the Superior Courts or fact.
Act.
The parties are not restricted to the The parties are confined to what is
record and can prove any of the on the record, i.e. amounts to a
grounds of review by affidavit. Facts retrial on the record.
can be brought to the notice of the
High Court of review by means of an
affidavit in order to prove the
irregularity and/or that it caused
prejudice to accused.
No time limit, but review must be Must be brought within a certain time
brought within a reasonable time period (14 court days after end of
(will not condone review after an trial) (application for condonation for
unreasonable period of time has late filing can be applied for).
elapsed since conviction in the
absence of a satisfactory explanation).
Only the High Court enjoys inherent A court’s powers on appeal are
common law and statutory review statutorily limited (ie. no inherent
jurisdiction. jurisdiction).
Sought by way of notice of motion, Lodged by way of a notice of appeal.
whereby the respondent is called upon
to show good cause why the
decision/proceedings should not be
reviewed/corrected/set aside.

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REVIEW: THE CRIMINAL PROCEDURE ACT

(a) Automatic Review (s302)

• Certain sentences of Magistrates Courtsmust be reviewed by the

relevant High Court Division in the ordinary course of events without
accused requesting such a review.
• This is called automatic review.
• It ensures that the High Court constantly controls the administration of
justice in the magistrates’ courts.
• Reason: The less judicial experience the presiding officer has, the more
restricted his/her proficiency and skill will be, and consequently the greater
the risk of an incorrect conduct or sentence. (Therefore is no automatic
review of sentences imposed by superior courts).
• In an automatic review the judge conducting the review is confined to the
record of the proceedings.

Magistrate’s court sentence subject to automatic review: The following

sentences are subject to automatic review:
• Imprisonment: (including suspended imprisonment and detention in a
reformatory or a rehabilitation center):
Ø For a period exceeding 3 months if imposed by a judicial officer who has
not acted as magistrate (or higher) for more than 7 years (combined
terms).
Ø For a period exceeding 6 months, if imposed by a judicial officer who has
acted as magistrate (or higher) for more than 7 years.
• Fine:
Ø Exceeding R6000,00 if imposed by a judicial officer who has not acted as
magistrate for more than 7 years
Ø Exceeding R12 000,00 if imposed by a judicial officer who has acted as
magistrate for longer than 7 years.
• To determine if a sentence is subject to automatic review, each sentence on
each separate count, must be considered as a separate sentence.
• NB: A sentence is not subject to automatic review if accused was
assisted by a legal representative at trial.
• However, if the legal representative is absent at any stage during the trial
for such a period that his/her absence could have made a difference to the
outcome of the trial, automatic review is appropriate.
• Automatic review is heard by a judge in chambers of the High Court
division having jurisdiction.

Automatic review and the right to appeal:

• If accused has appealed against conviction or sentence, the automatic

review procedure is suspended.
• If accused abandons an appeal, the review will recommence.
• Once judgment has been given on appeal, no automatic review takes place.
• There is no inconsistency in criminal proceedings being set aside on appeal
after they have been confirmed on review, since the test applied on review
is different from the criteria applied on appeal.

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(b) Extraordinary Review (s304)

• If it is brought to the attention of the relevant High Court division, or to a

judge thereof, that criminal proceedings were not in accordance with
justice, the judge has the same powers as laid down for automatic review.
• Extraordinary review applies to criminal proceedings which do not qualify
for an s 302 automatic review.
• The provisions of s304 enable the DPP, magistrate, or accused, to bring
irregularities in the proceedings under review, to the notice of a judge in
chambers.
• However, a matter that has been finally disposed of on appeal, may not be
brought on review in terms of s304.
• The question the court must ask is whether there are considerations of
equity and fair dealing that compel the court to intervene to prevent a failure
of justice.
• No time limit is set for an s304 review.

(c) Review before sentence

If a magistrate, after conviction but before sentence, is of the opinion that

the lower court proceedings are not in accordance with justice, such
magistrate shall, without sentencing the accused, submit the record of the
proceedings, together with his/her reasons, for review by a judge in
chambers.

(d) Review in terms of s306 brought by an accused

The procedure allows an accused, irrespective of whether he/she was legally

represented during a trial, to present a case for review through the automatic
review procedure by submitting written heads of argument to a judge of the
High Court. This has the effect that the accused has the benefit of review
without incurring any additional expenditure.

REVIEW as determined by the Superior Court’s Act

(i) Review at the instance of the accused

• The CPA does not provide for review of lower court proceedings at the
instance of accused.
• In terms of the Superior Court’s Act, the authority to review lower court
decisions is vested in the High Court division (and by sole exception to the
South Gauteng local division).
• However, the power to review is limited to the grounds set out in
s22(1), namely:
Ø Absence of jurisdiction
Ø Interest in the cause, bias, malice or corruption by the judicial officer
Ø Gross irregularity in the proceedings
Ø The admission of inadmissible or incompetent evidence, or the
rejection of admissible or competent evidence.

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• A matter must be brought under review within a reasonable time, which

differs from case to case.
• The onus of establishing an unreasonable delay is on the part of the party
so alleging.
• The court has discretion to either condone the delay, or refuse to
entertain the application for review.

Procedure:
• The procedure for bringing a matter under review is by way of notice of
motion directed and delivered to the presiding officer, magistrate and all the
parties affected.
• The applicant calls upon the other parties:
Ø To show cause why the lower court’s decision should not be reviewed,
corrected or set aside, and
Ø To dispatch, within 15 days after receipt of the notice of motion, to the
registrar of the High Court, the record of the proceedings, with such
reasons as by law required, and to notify the applicant of such a dispatch.
• The notice of motion must set out the decision sought to be reviewed and
must be supported by an affidavit setting out the facts on which the
applicant relies.
• The applicant may amend or vary the terms of the notice by means of a
fresh notice within 10 days.
• The respondent may oppose the granting of the order prayed for.

(ii) Review at the instance of the prosecution

• Although it is not expressly provided for in the CPA or Superior Court’s Act,
there is nothing preventing review at the instance of the prosecution.

FUNCTIONS AND POWERS OF A COURT OF REVIEW

The functions and powers of a court on review, set out hereunder, are
applicable irrespective of the type or manner of review.

Function of the court of review

• For all types of review, the function of the court is solely to decide whether
the proceedings were in accord with thedemands of justice.
• The interests of the convicted person and those of the State are
considered.
• To decide whether the proceedings were according to justice must be
decided according to the circumstances which prevailed when the
proceedings took place.
• Thus, a decision made by a magistrate during the original proceedings will
be assessed according to the facts in existence at the time it was
made, and not according to any new circumstances subsequently coming
into existence.

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(i) Powers of the High Court of review (s304);

• The High court may confirm, alter or quash the conviction of the
magistrate’s court.
• The High Court may confirm, reduce, alter or set asidethe sentence, or
any order, of a magistrate’s court. The court of review has no jurisdiction
to increase a sentence (the court of review can only impose the proper
sentence, but will normally refer the matter back to the lower court for the
imposition of a suitable sentence).
• If accused was convicted on one of two or more alternative counts, the court
may, when quashing the conviction, convict on an alternative count.
• The court may set aside, or correct, the proceedings, or give such judgment,
or impose such sentence, or make such order as the magistrate could or
should have made, (i.e. the review court can amend the charge sheet to a
conviction on another charge).
• The court of review may remit the case to the magistrate’s court with
instructions to deal with any matter in such manner as the court may think
fit.
• The court of review can make any order affecting the suspension of the
execution of a sentence (including bail) as will promote the ends of justice.
• The court of review may hear any evidence and for that purpose summon
any person to appear and to give evidence or to produce any document or
article.
• Where the court of review requires a question of law or fact to be argued
before it, it may direct that the question be argued by the DPP, and such
counsel, as the court may appoint.

(ii) Powers in terms of s312:

• A court of review may set aside a conviction and sentence on the ground
that any provision of s112(1)(b) or 112(2) (a plea of guilty at a plea
hearing before trial) or s 113 was not complied with.
• The case is then remitted to the court where sentence was imposed and
such court is directed to either question accused as required by s 112 or
to correct the plea in terms of s 113.

(iii) Powers of judicial review and the Constitution:

• S172 of Constitution: A court of review when deciding a constitutional
matter within its power, may declare any law that is inconsistent with the
Constitution to be invalid. The court of review may also make any order
that is appropriate, just and equitable. An order of constitutional invalidity
must be confirmed by the Constitutional Court.
• Exclusion of unconstitutionally obtained evidence: The Constitution
demands a fair trial for any accused and Judicial Officers of all lower and
higher courts must ensure that all trials are conducted fairly. If a judicial
officer allows illegally evidence to be admitted at trial such evidence will
render the trial unfair or otherwise be detrimental to the administration of
justice. The court of review may exclude such illegally obtained evidence
if the judicial officer of the original trial has exercised his discretion in an
irregular manner (Key v Attorney-General: Cape of Good Hope P.D.).

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EXECUTION OF THE SENTENCE PENDING REVIEW

The execution of any sentence brought under review is not suspended

pending the review unless the magistrate grants bail.

RETRIAL WHERE CONVICTION IS SET ASIDE (S313)

Whenever a conviction and a sentence of a lower court are set aside on review
on the ground that:
Ø The court that convicted accused was not competent to do so, or
Ø The charge sheet on which accused was convicted was invalid or
defective, or
Ø There has been a technical irregularity or defect in the procedure
proceedings may be instituted de novo.
The new trial could be on the original charge, suitably amended, or upon any
other charge.
The proceedings must be before a different judicial officer.
Where the irregularity constitutes such a gross departure from established
rules of procedure that accused has not been properly tried, it is per se a
failure of justice. Public policy is an important factor in this regard.

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CHAPTER 21 APPEAL

GENERAL PRINCIPLES

RELATIVE RIGHT OF APPEAL

An accused does not have an absolute and unconditional right of access to

an appeal court. S36 of the Constitution allows for a reasonable and justifiable
limitation on all constitutional rights including the right of appeal. The relative
right to appeal forms part of the accused’s s35 right to a fair trial (i.e.
s35(3)(o)). (Ntuli1996 (CC) and Steyn 2001 (CC) argued that the right to
appeal was absolute, but in Shinga 2007 (CC) it was argued that the leave to
appeal requirement of s 309B–C was consistent with s 35(3)(o) and therefore
only a relative right):
§ The relative right to appeal means that leave to appeal must be applied
for;
§ Rationale for limiting right of appeal: There is already a backlog in hearing of
appeals; If appeal was automatic it would create an unjustifiable heavy
burden on the state (Rens);
§ An unrepresented accused must be informed of the right and the
procedure for enforcing it.

General requirements for noting an appeal:

Ø The accused (or prosecution in certain circumstances) must make an

application for leaveto appeal to the trial court of the 1st instance.
Ø An appeal from a lower court is to the High Court (with jurisdiction over the
lower court).
Ø An appeal from a High Court is to the Full Court of the Division (with
jurisdiction over the High Court).
Ø A further appeal may be made to the SCA by petition to the Judge-President
of the SCA.
Ø Leave to appeal must be made within 14 days. A failure to do so requires
an application for condonation for permission to make a late application.
Ø The prosecution may only appeal on bail, sentence, a question of law
(including reservations of law) but never on a question of fact.

The specific types of appeal are:

Ø A general appeal in terms of s 309 (from a lower court) & s 315 (from a
higher court)as follows:
v against a conviction and/or sentence (s310 in lower courts) & (s316B in
higher courts) - either on the facts or on the law;
Ø An application for leave to lead further evidence (s309B(5) lower courts) &
(316(5) higher courts);
Ø An application for a special entry (s317);
Ø A reservation of question of law (s319);
Ø Appeal in terms of the Child Justice Act.

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GENERAL APPEAL PROCEDURE

No appeal before conviction:

§ Any conviction, sentence, or order of a lower court may be appealed.

§ General rule: An appeal should not be decided piecemeal.
§ Therefore, an appeal court will usually only exercise its powers after the
end of the criminal trial (once judgment and a verdict are given).
§ However, in exceptional cases, an appeal court will exercise its inherent
power to prevent irregularities in lower courts, even before the
termination of the trial (e.g. where the Judicial Officer unreasonably denies
accused the opportunity to obtain legal representation). But this power
should be used sparingly.
§ Whenever the High Court is approached to exercise its inherent powers to
prevent irregularities in the lower courts, the court may grant a mandamus
(order directing magistrate to act as ordered) or an interdict (order directing
magistrate not to act in a certain way).
§ However, if the magistrate performs his/her functions in the correct
procedural manner, but comes to a wrong conclusion on the merits, no
application may be made to the court of appeal before conviction.

Application for leave to appeal (s309 and s309B - lower courts and s316 -
higher courts)

The application:
§ The application must clearly set out the grounds of appeal.
§ Notice of the date for the hearing of the application must be given to the
relevant Director Public Prosecutions and accused.
§ When leave is granted, it must be granted with specific limitations to
particular grounds (the SCA may be approached to extend such grounds).
If leave is granted generally, all issues may be canvassed on appeal.
§ Leave may be applied for verbally immediately after the judgment/order is
given. Such application must be reduced to writing later and forms part of
the court record.

By whom:
§ An accused convicted must within 14 days apply for leave to the trial
court.
§ The DPPmay within 14 days apply for leave to appeal against a decision
by the trial court.

To whom:
§ Application for leave to appeal is made to the Judicial Officer (i.e.
magistrate of the lower court or judge of the higher court) of the court of
the 1st instance that passed the judgment.
§ If the accused fails timeously to approach the court that passed the
judgment, he/she may approach another court provided the application is
bona fides.

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Grounds of appeal:
§ The main ground is always whether there is a reasonable prospect of
success on appeal (s 17(1) of the superior Courts Act of 2013) (both in
relation to questions of fact and of law).
§ Leave to appeal may be granted even if there is no prospect of success on
the existing record but that there is a reasonable prospect that leave to
adduce further evidence will be granted.
§ The mere possibility that another court may come to a different
conclusion is not a sufficient basis for an appeal.
§ If the application is refused, the Judicial Officer must furnish reasons for
refusal.
§ The Judicial Officer must assess the application objectively.
§ The mere fact that the accused’s appeal application is not opposed by the
prosecution does not amount to a reasonable prospect.

If leave is refused:
§ If leave to appeal is refused by the magistrate/judge of the court which
heard the matter, the accused has the further remedy of petitioning the
Judge-President of the SCA (Supreme Court of Appeals) for leave to
appeal.
§ The decision of the SCA is final.
§ If the accused originally appeals against a sentence, he/she cannot later
appeal to the SCA against a conviction.

Application to lead further evidence (s309B(5) – lower courts and s309(5)

– higher courts

§ When applying for leave to appeal, the accused may also apply for leave
to lead further evidence. The application for evidence will be attached to
the application for leave to appeal.
§ If leave to appeal is refused, accused will not be granted leave to lead
further evidence. It is in the interests of justice that finality be reached in
all criminal matters. Therefore a case will not lightly be re-opened and
further evidence will only be allowed in exceptional circumstances.
§ The court will only allow such an application if it is satisfied there is a
reasonable probability that the accused would not be convicted if given
the opportunity of a further hearing.
§ Further evidence may be received by the court if the application is
accompanied by an affidavit stating that:
Ø Further relevant and truthful evidence is available;
Ø The evidence could reasonably lead to a different verdict or sentence;
and
Ø There is a reasonable explanation for the failure to produce such
evidence before the close of the original trial.
§ The accused bears the onus of proving all three conditions.
§ If the application is refused, accused has 21 days within which to petition
the Judge-President against such refusal.

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APPEAL ON FACTS VERSUS APPEAL ON A QUESTION OF LAW

§ Not always easy to distinguish between the two.

§ On fact: (factual evidence) - it is the duty of an appeal court to re-assess
the case on the record, together with such factual evidential material as it
may have decided to admit, and then decide for itself whether there is guilt
beyond reasonable doubt (i.e. whether the factual evidence supports the
trial court’s finding of guilt).
§ On law: (legal interpretation on a question of law) - a question of law
arises when the facts upon which the trial court based its judgment could
have another legal interpretation placed on them. In other words the appeal
court will interpret the same set of facts differently and come to a
different legal conclusion to that of the trial court.

APPEAL ON THE FACTS

§ An appeal court is usually reluctant to interfere with the decision of the

trial court on questions of fact.
§ Reason: The trial court is in a better position than the appeal court to
analyse factual issues in that it sees, hears and evaluates witnesses in the
setting of the trial court. The trial court is therefore in a better position to
assess factual issues such as demeanour, appearance and personality
of the witnesses and to make a finding on the credibility of the
witnesses.
§ Where the trial court’s judgment is based primarily on the factual evidence
given by witnesses at trial an appeal court will not intervene.
§ An appeal court will only interfere if it is clearly convinced that the
evaluation of the factual evidence by the trial court is incorrect.
§ Where there are a majority of other factors in the record, apart from
factual evidence derived from witnesses, an appeal court is more likely to
intervene.
§ An appeal court which has the benefit of examining the written record of the
trial proceedings may be in a better position to draw inferences as to
conviction or sentence than the trial court.
§ The question whether there was corroborative evidence can be determined
just as well by the appeal court.

APPEAL AGAINST SENTENCE

Decrease in sentence
§ Although an appeal court has jurisdiction to reduce a sentence, it does
not possess a general discretion to correct the sentence of a trial court. In
terms of the rules it is the trial court that has the discretion to impose a
proper sentence.
§ An appeal court will not intervene except where a trial court has exercised
its discretion in an improper and unreasonable manner or misdirected
itself.
§ This will occur:
Ø where the sentence is the result of an irregularity by the trial court (e.g.
the trial court acted outside its jurisdiction);

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Ø where the trial court misdirects itself (e.g. takes into account irrelevant
factors);
Ø where the sentence is so severe that no reasonable court would have
imposed it as it “induces a sense of shock”, or “is startlingly
inappropriate”, and “a striking disparity”:
o The appeal court must compare the appealed against sentence with
other lesser sentences imposed in substantially the same
circumstances, and in respect to the same offence, by other trial
courts;
o If there is a material difference between the compared sentences the
appeal court will reduce the sentence;
o An appeal court has no jurisdiction to impose a sentence which the
trial court was not competent to impose.

Increase in Sentence
§ The SCA, a High Court division and the Gauteng High Court, Johannesburg
have the power to increase a sentence on appeal on the request of a DPP
or prosecutor.
§ These courts can increase a sentence on appeal, even if the appeal was
against conviction only.
§ This power is conferred on these courts in the interest of justice.
§ Where the prosecutor requests an increase, or the court meromotu
considers increasing the sentence, notice must be given to accused.
§ The sentence will only be increased if the trial court has exercised its
discretion unreasonably, or improperly, or misdirected itself.
§ An appeal court has no jurisdiction to impose a sentence which was not a
competent one for the trial court at the time sentence was imposed (unless
the sentence is set aside by the appeal court on grounds of an irregularity,
misdirection or inappropriateness).
§ In considering any appeal on sentence, the offence, the offender and the
interests of society must be taken into account.

WHO MAY APPEAL

• General rule: any adult accused may, with the leave of the trial court,
appeal against any conviction and/or sentence of a lower court.
• An adult person sentenced to life imprisonment by a regional mag
court has an automatic appeal to a higher court.
• Child Justice Act s84 – automatic right of appeal for children. An
appeal by a child against a conviction, sentence or order is dealt with
in terms of the appeal procedures of the Criminal Procedure Act:
Provided that if that child was, at the time of the commission of the alleged
offence under the age of 16 years; or between16 and 18 years and
sentenced to imprisonment,
• A child may appeal without having to apply for leave in terms of
section 309B of the CPA in the case of an appeal from a lower court,
and in terms of section 316 of the CPA in the case of an appeal from a
High Court:
• A child must be informed by the presiding officer of the right to appeal.

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WHO IS NOT ENTITLED TO AN APPEAL

• A fugitive convicted person: by running away the accused puts himself

beyond the jurisdiction of the court. If the accused has disregarded the legal
process, he cannot subsequently invoke it to claim relief (Molotsi).
• A third party who has an interest in a verdict of guilty has no locus
standi to appeal.
• A finding of not guilty because accused lacked criminal capacity is not an
appealable verdict when the finding was made in consequence of an
allegation made by accused.
• Accused may not appeal against the operation of a suspended sentence
(Khan).
• An appeal may not continue after the death of accused.
• No appeal lies against an exception (a procedural objection) which has
been refused.
• No appeal lies against an administrative order (e.g. that a person is unfit
to possess a firearm).

WHEN MAY THE PROSECUTION APPEAL

Appeal restricted to a question of law (s310 in lower courts) and (319 in higher
courts):

• The DPP, NDPP or Prosecutor can appeal against a decision by a trial

court in favour of accused on a question of law where:
Ø the court granted an accused’s application for discharge in terms of
s174;
Ø the court made a decision to acquit accused on the offence charged
and to convict on a competent sentence;
Ø an order is made to squash, or amend, a charge in favour of the
accused.
• When a trial court has made a decision in favour of an accused on any
question of law, the DPP or Prosecutor may require the Judicial Officer to
state a case (define the question of law) for the consideration of the
appeal court, setting out the question of law and his decision thereon.
• The Judicial Officer’s findings of fact insofar as they are material to the
question of law, must also be stated (appeal court will generally confine
itself to such findings).
• The accused must be notified of such an appeal.
• The prosecution may not appeal in order to obtain a decision on a
purely academic question which will not materially affect the legal
outcome of the case.
• The purpose of this type of appeal is clarify a legal question, but also to
ensure that justice is done.
• If the prosecutor’s appeal is not upheld by the appeal court, the prosecution
may appeal further to the SCA.

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Appeal against sentence:

• The DPP can appeal against a sentence imposed upon accused in a trial
court. S 310 and s 319 allow for the DPP to apply for an increase of
sentence.
• The prosecution may appeal where in its opinion the sentence is unfair to
the state; or the sentence is incorrect;
• If the appeal is unsuccessful, the prosecution/state can be ordered to pay
accused’s costs.
• Once the appeal has been dismissed, the DPP does not have further
right of appeal to the SCA. Thus, the first appeal court’s decision is
final. (Note: there is no provision which allows a further appeal to SCA on a
question of law).

Appeal against a bail decision:

• The prosecution can appeal against the decision of a trial court to release
accused on bail even though this is inherently an appeal on the facts;
• The prosecution cannot appealagainst the imposition of a condition of
bail.
• A decision to grant bail is a factual one and an appeal against such
decision therefore turns on the facts.
• The right to appeal is subject to leave to appeal granted by a
magistrate/judge.

CONDONATION OF LATE NOTING OR LATE PROSECUTION OF

APPEALS

• S309C(2)(a) in lower courts and s 316 in the High Court.

• An appeal must be noted within 14 days. Where leave to appeal is not
received within this time limit condonation for a late application of appeal
should be applied for - an extension of time within which to note such
appeal.
• In criminal cases the courts are more accommodating about granting
condonation than in civil cases. Reason: Accused should be given every
reasonable opportunity to present his case fully to the appeal court.
• What constitutes sufficient cause to justify the granting of condonation:
Ø Accused must show reasonable grounds (good cause) which
entitles him to ask for the condonation. What constitutes
reasonableness will depend on the circumstances of each case:
Ø E.g. if there has been gross negligence, or absolute indifference, as
to whether or not the appeal was noted good cause is not shown.
Ø E.g. where there has been some bona fide mistake due to
misunderstanding, good cause can be said to exist.
Ø Reasonable grounds include lack of knowledge by accused,
negligence on the part of the attorney, etc.

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• If an application for condonation is refused by a magistrate, the

accused may, within a period of 21 days of such refusal, or within such
extended period as may on good cause be allowed, petition Judge-
President of the High Court.
• If an application for condonation is refused by a judge, the accused
may, within a period of 21 days of such refusal, or within such extended
period as may on good cause be allowed, petition Judge-President of the
SCA – s316(6).

POWERS OF COURT ON APPEAL (s304(2) and s209(3))

A local or provincial division sitting as a court of appeal has the following

powers:

• The court may hear further evidence in the interests of justice (application
made for such together with application for leave to appeal; court may remit
matter to court a quo to hear such evidence).
• The court may confirm, alter, or quash the conviction (and convict on an
alternative count) ;
• The court may confirm, reduce, alter, or set aside the sentence or order.
• The court may correct the proceedings of the lower court;
• The court may generally give such judgment, or sentence, or order, as
the lower court should have made.
• The court may remit the case to the magistrate’s court with instructions
to deal with any such matter in such manner as the court of appeal may
think fit.
• The court may make an order affecting the suspension of the execution
of a sentence or the accused’s admission to jail, or any other matter which
the court deems in the interests of justice.
• Sentence may be increased on appeal.
• The court has the power to give any judgment or make any order which the
circumstances may require.

APPEAL ON SPECIAL ENTRY OF IRREGULARITY OR ILLEGALITY (s317-

318)

Special type of review: irregular proceedings, or proceedings not in

accordance with the law, in a lower court may be taken on review before the
High Courts. There is no review procedure for irregular proceedings in a
High Court trial. The reason for this is that it is assumed that a High Court
judge, unlike a magistrate, cannot make these types of irregular procedural
errors.

However, the CPA does give an accused a remedy in the form for an appeal
on special entry which the accused may, if convicted, make use of to
approach the SCA.
• This procedure may be used by an accused when an irregularity does not
appear on the record of the trial court.

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• However, if the irregularity does appear clearly on the record, it is

unnecessary for a special entry to be made (and accused must use the
general appeal process in terms of s316).
• The special entry procedure allows the accused to make an application
during, or after the trial, that the identified irregularity be specifically
entered on the record in order to prepare for a future appeal;
• The trial judge will have to consider the application based on the alleged
irregularity (whether it is material or immaterial) in order to assess whether
the special entry is justified.
• Two types of irregularity are possible:
Ø Those relating to the trial (e.g. an assessor gains extra-curial
information that could be detrimental to accused)
Ø Those that arise during the trial (e.g. the refusal of a judge to allow
proper cross-examination).
• S317: is concerned with irregularities or illegalities of procedure.
Questions of law, therefore, cannot form the subject of an appeal
based on a special entry.
• S317: If during the trial, accused interprets the proceedings in the superior
court as being irregular, he may, during the trial, or within 14 days after the
conviction, apply to the trial judge for a special entry to be made on the trial
record.
• The court is bound to make the entry, unless the judge is of the opinion that
the application is frivolous, mala fides or absurd.
• If a special entry is made, and accused is convicted, he may
subsequentlyappeal to the SCA against conviction on the ground of the
irregularity.
• Accused’s conviction and sentence are not to be set aside by reason of the
irregularity, unlessit appears that a failure of justice has in fact resulted
from the irregularity.
• A distinction must be drawn between irregularities that are per sefatal, and
less serious irregularities.
• In the case of less serious irregularities, the remaining evidence is
considered and weighed up by the appeal court, while if the irregularity is
fatal, the conviction is set aside.
• Where the conviction and sentence are set aside by the appeal court, the
court of appeal may remit the matter to the trial court.
Procedure:
• The accused must, within 21 days after the entry was made, give notice of
appeal to the Registrar of the SCA and High Court Division.
• If the application for a special entry is refused (or application for
condonation is refused), accused may apply to the SCA by way of petition to
the Judge-President within 21 days of such refusal.

RESERVATION OF QUESTIONS OF LAW (s310) and (s319)

• In the course of a High Court trial (s 319), a question of law relevant to the
particular case may arise.
• The court itself may be uncertain about the law regarding a particular
point (e.g. whether certain evidence is admissible).

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• If the question of law arises during the trial, the trial court may meromotu, or
at the request of the prosecution, or accused, reserve the question for the
consideration of the SCA.
• The court then states the question reserved and directs that it be
specially entered in the record and that a copy be transmitted to the
registrar of the SCA.
• The request for a reservation of a question of law must be made after the
conclusion of the trial (i.e. after acquittal or conviction).
• If accused is declared insane, there can be no question of law, as there is
neither an acquittal nor conviction.
• The question of law must appear from the record (Mulayo).
• There is no time limit within which to bring the application, but the
application must be brought as soon as possible after the judgment, or
within a reasonable time.
• If the court refuses to reserve a question of law at the request of accused,
accused may submit the application to the SCA by petitioning the
Judge-President.
• A question of law can only be reserved by the prosecutor in the following
instances:
Ø Where there has been a conviction and the question of law may be to
the advantage of accused (but not if it may have an adverse effect)
(Magmoed v Janse van Rensburg).
Ø Where the question may have a bearing on the validity of the sentence
imposed (Ntuli).
Ø Where there has been an acquittal.
• A reservation of law is a procedural device only used by the prosecution
and not the accused as it would be of no use to the accused since he/she
can raise the same point in an ordinary appeal in terms of s 316.

THE POWERS OF THE SUPREME COURT OF APPEALS

• In respect to appeals originating in a lower court (Magistrates Court), the

SCA has the same powers as a PD.
• In addition, the SCA has additional powers (over and above the High
Court Division)(In cases of appeal against conviction or on a question of
reservation of law) to:
Ø Set aside the decision of the trial court
Ø Give such judgment as ought to have been given at the trial
Ø Make such order as justice may require (cannot set aside a conviction
or sentence on the basis of an irregularity or defect in the record or
proceedings unless such has resulted in a failure of justice).
Ø Impose a punishment more severe than that imposed by the court a
quo (even if there is no appeal against sentence).
• The power to hear further evidence (s316(3): it is only in exceptional
circumstances that the SCA will itself hear further evidence on appeal. The
usual course is to set aside the conviction and remit the case to the trial
court (Njaba).
• The SCA possesses inherent jurisdiction:
Ø Although it is a creature of statute, the SCA’s jurisdiction is not limited to
matters falling within the provision of the CPA and SCA.

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Ø In terms of the Constitution, it has inherent jurisdiction to protect and

regulate its own process and to develop the common law.

FRESH TRIAL / PROCEEDINGS DE NOVO

S312 (lower courts) & s 324 (higher courts): a new trial de novo may be re-
instituted when a conviction is set aside on one of the following grounds
(accused therefore cannot plead autrefois acquit):
Ø The court was not competent to convict;
Ø The charge sheet was invalid or defective;
Ø There was a technical irregularity in the proceedings, which resulted in a
failure of justice.
§ The judge or assessors who presided in the court a quo cannot take part in
the new trial.

SPECIFIC APPEAL PROCEDURES (see diagram)

(A). Appeal from a lower court to Higher Courts:

Mag Crt (1st instance) ProvDiv SCA.

(B). Appeals from a High Court via Full Court to SCA:

(1) Div (1stinst) FullCrt of a Div

SCA.
(2) South Gauteng LocalDivFullCrt of the LocDiv or FC(Div) SCA.

(C). Appeals to the Constitutional Court:

Direct appeal to CC by way of (s167(6)(a)), or (s172(2)(a), or access by

way of appeal from any court, or referral.

APPEAL TO A FULL COURT (S315)

A Full Court (3 judges) is a provincial division, or the South Gauteng

Local division, court sitting as an appeal court.

Full Court has jurisdiction:

• In the case of an appeal in a criminal case heard by a single judge of a

provincial division by the Full Court of the division concerned.
• In the case of an appeal in a criminal case heard by a single judge of a
local division, other than the Gauteng Local Division, by the Full Court
of the of the division which exercises concurrent jurisdiction in the area of
jurisdiction of the local division concerned;
• In the case of an appeal in a criminal case heard by a single judge of
the GAUTENG LOCAL DIVISION,JOHANNESBURG
Ø By the Full Court of the Gauteng Division, Pretoria; or
Ø By the Full Court of the said local division if the said judge president
has so directed in the particular instance.

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Full Court has no jurisdiction where:

• The appeal is with obvious difficulties and has been directed to the
SCA for consideration;
• Leave to appeal on a special entry of irregularity/illegality against
proceedings of a High Court has been granted;
• A question of law has been reserved by the High Court;
• An appeal is brought against the judgment/order of a High Court division
given on appeal in matters arising in the lower courts;

APPEAL TO SCA

• May decide any appeal of whatever matter, even constitutional matters.

• May decide only:
Ø Appeals
Ø Issues connected with appeals
Ø Any other matter that may be referred to it as defined by an Act of
Parliament
Ø Quorum: Five judges in criminal matters (except if the Judge-President
allows the matter to be heard by three judges)

In cases tried in a High Court, the SCA will hear the appeal if:

• The trial court has granted leave (SCA can be approached by way of
petition to the Judge-President if the trial court refuses)
• Application for appeal on grounds of a special entry is granted by the trial
court (i.e. irregularity or illegality, see below)
• A question of law is reserved by the trial court
• The state has given leave to appeal against sentence
• A question of law is brought to the SCA by the Minister of Justice.
• Matters decided on appeal by a Full Court may only be brought to the
Supreme Court of Appeals with the leave of the SCA.

In cases tried in the lower courts:

In cases tried in lower courts and taken on appeal by the prosecution or the
accused to a provincial or local division with appeal jurisdiction, a further
appeal to the Supreme Court of Appeal is possible only with the leave of the
provincial or local division concerned or, where such division refuses leave,
then with the leave of the Supreme Court of Appeal itself.

ACCESS TO THE CONSTITUTIONAL COURT

Constitutional Court is the highest court on all constitutional, civil and criminal
matters (an apex court).

The Constitutional Court may be approached for relief by any person with
sufficient interest in the matter to be admitted as a party.

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The following persons have locus standi in iudicio (s38):

§ Anyone acting in his own interests
§ Anyone acting on behalf of another who cannot act in his own name
§ Anyone acting as a member, or in the interests of a group or class of
persons
§ Anyone acting in the public interest
§ An association acting in the interests of its members
§ Any party having an interest in the matter, with the consent of the parties
or that of the President of the Court, as amicus curiae

Any person or organ of state with sufficient interest may appeal or apply
directly to the Constitutional Court to confirm or vary an order of constitutional
invalidity given by a court in respect of parliamentary or provincial legislation or
the conduct of the President.

WAYS OF ACCESS

Direct access (s167(6)(a)):

§ Direct access by a member of the public will be allow in exceptional

circumstances and only in the interests of justice (Zuma);
§ In this circumstance the Constitutional Court is not a court of appeal but sits
as a court of the 1st and final instance.
§ It will be in the interests of justice if there are compelling reasons for such
access:
• This will be the case where the matter is of such urgency or of such
importance that the delay necessitated by the application of the ordinary
procedures would prejudice the public interest or prejudice the ends of
justice and good government.
• Direct access is permitted in the case of specific members or bodies of
the national executive authority concerning applications on the
constitutional validity of an Act of Parliament or a province or the
referral of a Bill.

Direct access to the Constitutional Court by means of an appeal or

confirmation without the leave of the Constitutional Court (s172(2)(d)):

§ A state organ or private person may appeal without permission of the

Constitutional Court in the case where any competent court has declared
legislation promulgated by parliament/province/or conduct of the
President unconstitutional and invalid.

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Access to the Constitutional Court of an appeal with the leave of the

Constitutional Court:

The Constitutional Court may be approached on appeal in this way, in

two instances:

(1) Where any High Court, other than the SCA, has given a decision or
order on a constitutional matter, the litigant who is aggrieved by the
decision or order, can apply directly to the Constitutional Court by way of
application to the court who gave the decision. :
Ø It is in the interest of justice for the matter to be brought directly to the
Constitutional Court; and
Ø There is reason to believe that the Constitutional Court may give leave to
appeal on the appellant.

If it appears to the judge(s) hearing the application that:

Ø The constitutional issue is one of substance on which a ruling by the
Constitutional Court is desirable;
Ø The evidence is sufficient to enable the court to dispose of the matter
without referral back for further evidence; and
Ø There is a reasonable prospect that the court will reverse the decision or
materially alter such decision, if permission for leave to appeal is granted;

(2) An appeal to the Constitutional Court on a constitutional matter

against a judgment or order of the SCA shall only be granted with special
leave of the Constitutional Court. Aggrieved party must apply for such leave
to the Constitutional Court within 15 days of the judgment, after giving notice
to all other concerned parties. The written application must state the grounds
of appeal and the constitutional matter raised.

Access to the Constitutional Court by way of referral:

§ The Constitution limits referrals to a minimum.

§ The SCA, a High Court or a Full Court must refer:
Ø An order concerning the inconsistency and invalidity of an Act of
Parliament, provincial Act or any conduct of the President for
confirmation; or
Ø The legislative enactment themselves for a determination of their
inconsistency or invalidity.

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THE 8 BASIC PROCEDURAL RULES OF A CRIMINAL APPEAL (see

diagram):

1. Leave to appeal must be applied for, as the appeal process is not

automatic, except for:
Ø minors under the age of 16yrs from child justice court;
Ø minors between 16 and 18yrs sentenced to imprisonment from child
justice court;
Ø adults sentenced to life imprisonment by a regional magistrate’s court.
2. Leave to appeal must be noted within 14 court days of the final termination
of a trial of the 1st instance:
Ø but a late application for leave to appeal may be condoned by a
magistrate, or a judge, of the 1st instance;
Ø a petition may be addressed to the Judge-President of the Division with
jurisdiction (where a magistrate has refused condonation), or the SCA
(where a judge has refused condonation).
3. Where leave to appeal is refused by a magistrate, or judge, of the 1st
instance:
Ø a petition may be addressed to the Judge-President of the relevant
Division;
4. An application for further leave to appeal to the SCA may be addressed to
the Judge-President of the SCA by way of petition, or a request for special
leave.
5. In appeals from the lower courts only a High Court Division may sit as an
appeal court (2 judges). Except for the South Gauteng local seat.
6. In appeals from the High Court only a full court of a Division (3 judges), or
the SCA (3-5 judges) may sit as an appeal court. Except for the full court of
the South Gauteng local seat.
7. A judge of the 1st instance may direct a general appeal (ss 309 & 315):
Ø either to a full court, or to the SCA, depending on its anticipated difficulty,
Ø usually appeals on reservations of law, appeals on special entries, are
directed to the SCA.
Ø A direction may be set aside by a petition addressed to the Judge-
President of the SCA.
8. A criminal matter may be directed to the Constitutional Court as follows:
Ø direct access to the Constitutional Court which sits as a court of the 1st
and final instance;
Ø direct access to the Constitutional Court on appeal from any court.

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CHAPTER 22 MERCY AND A FREE PARDON

THE POWER OF THE PRESIDENT

The Constitution of the Republic of South Africa empowers the President of the
Republic:
• to pardon or reprieve offenders and to remit any fines, penalties or forfeitures –
s84(2)(j) read with s83 of the Constitution.
• Although these powers are statutory and constitutionally regulated, they are
derived historically from the common law executive prerogatives of the
President.
• S325 of the CPA affirms the President’s prerogative by providing that nothing
contained in the said Act shall affect the powers of the President to extend
mercy to any person
• Reason for such a power - The state power to reprieve and to extend mercy
are an integral part of our criminal justice system and a constitutional
mechanism to protect the criminal system and the people against injustices and
mistakes.
• In accordance with international tradition, neither the Constitution nor the
Criminal Procedure Act lays down specific criteria according to which the
prerogatives are to be exercised and it is clear that the President has a wide
discretion when exercising these powers.
• The only clear limitation is that the President cannot act contrary to the Constitution
(see President of the RSA v Hugo 1997 (1) SACR 567 (CC)).
• Convicted persons have no inherent right to be pardoned or reprieved and
also have no right to be heard in respect thereof, but may only hope for the
indulgence of the President.
• In practice, however, the President will not exercise his prerogative of mercy
without considering a report from the Minister of Justice containing the
recommendations of the director of public prosecutions, the presiding officer of the
trial court and that of the State Law Advisors.
• However, the conduct of the President in exercising his powers in terms of
s84, remains subject to the Constitution and as such subject to judicial review.

RE-OPENING OF A CASE

Since the courts are created by statute, the powers and functions of the High
Courts and the Supreme Court of Appeal with regard to the re-opening of a
criminal matter and the hearing of further evidence are governed by the Criminal
Procedure Act and the Supreme Court Act. Not even the Supreme Court of Appeal
itself has an extraordinary jurisdiction to re-open a case after it has been
finalised by the Supreme Court of Appeal – Sefatsa v Attorney-General,
Transvaal 1989 (1) SA 821 (A). The re-opening of such a matter is only possible by
virtue of the provisions of s327:
• S327 provides that if a person convicted of any offence in any court has
exhausted all the recognised legal procedures regarding appeal and review, or if
they are no longer available to him, such person may submit a petition,
supported by affidavits, to the Minister of Justice, stating that further evidence
has become available which materially affects his conviction or sentence.
• The Minister may, if he considers that such evidence, if true, might
reasonably affect the conviction, refers to petition and affidavits to the court
which convicted the accused.

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• The court thereupon receives the affidavits and may permit the examination of
witnesses in connection with the further evidence as if it were a normal criminal
trial (the presence of the accused is not essential, however) and assessed
the value of such evidence.
• The court finally advises the President whether and to what extent the further
evidence affects the conviction.
• The President thereupon considers the finding or advice, and may then:
Ø Direct that the conviction be expunged, effectively giving the accused a
free pardon; or
Ø Commute the conviction to a lesser one and adjust the sentence
accordingly.
• No further appeal, review or proceedings are permitted in respect of
proceedings, findings or advice of the court in terms of s327.
• Similarly no appeal, review or proceedings shall lie against the refusal by the
Minister to issue a direction to the trial court or by the President to act upon the
finding or advice of the court – s327(7).

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