1.

LEARNING UNIT 1

0%

LEARNING UNIT 2⟶

LEARNING UNIT 1: A BASIC INTRODUCTION TO CRIMINAL PROCEDURE

There are no recommended works for this study unit.

OVERVIEW

1.1 THE PLACE OF CRIMINAL PROCEDURE IN THE JUSTICE SYSTEM

1.2 THE SCOPE AND CONTENT OF CRIMINAL PROCEDURE

1.3 CRIMINAL PROCEDURE IN THE CONTEXT OF THE CONSTITUTION

1.4 THE PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEDURE

1.5 CRIMINAL PROCEDURE IN THE CONTEXT OF THE INQUISITORIAL AND ACCUSATORIAL

PROCEDURAL SYSTEMS

ORIENTATION

After studying this chapter of the textbook, you should be able to solve problems related to a
practical set of facts on any of the following matters, or to discuss any of the following
concepts:

• Differentiate between substantive and adjectival law

• Discuss the scope of criminal procedure within the criminal justice process

• Discuss the presumption of innocence in the context of the Constitution and the Bill of
Rights

LEARNING OUTCOMES

Once you have studied chapter 1 of the textbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:

• identify the place of criminal procedure in the overall scheme of South African law

• describe the nature, scope and content of the South African law of criminal procedure

• explain the impact of the Constitution on the law of criminal procedure

• differentiate both theoretically and practically between adjectival and substantive law

• contrast accusatorial and inquisitorial process with reference to examples in South

African criminal procedure
COMPULSORY OR ADDITIONAL READING

Study chapter 1 of the textbook and read the provisions of sections 35 of the Constitution.

Note: Pay attention to the following aspects from chapter 12 of the textbook:

1.1 THE PLACE OF CRIMINAL PROCEDURE IN THE LEGAL SYSTEM

In most legal systems legal proceedings are divided into criminal and civil proceedings. Both
proceedings have a different set of functions, procedures and consequences. Criminal Law
forms part of what is termed substantive law. Criminal Law forms a body of legal rules which
determine which human conduct constitutes a crime. This entails the act in question, the
mental state of the alleged perpetrator, as well as the attendant consequences or
circumstances. In general, criminal procedure is essentially designed to address and protect
public rights. Civil procedure, on the other hand, is concerned with the vindication of private
rights.

Criminal Procedure, on the other hand, determines the legal steps which must be followed
upon the commission of an offence. In other words, the law of criminal procedure is the formal
part of criminal law (Z Hautzinger ‘Bases pf Criminal Procedure139 Studia Iuridica Auctoritate
Universitatis Pecs Publicata 187 2006). Criminal procedure covers the procedural aspects from
the initial arrest of the suspect, the initial investigation of the alleged crime, through to the trial
and eventual punishment, if the accused is subsequently convicted.

1.2 THE SCOPE AND CONTENT OF CRIMINAL PROCEDURE

Criminal procedure regulates the powers and duties of criminal courts in general. In addition, all
other ancillary functions which operate within the context of the criminal justice system such as
the prosecution, the duties and powers of the police, the rights of suspects and arrested and
accused persons, pre-trial procedures such as bail, charge sheets and indictments, pleadings,
the course of the criminal trial, verdict, sentencing, post-trial remedies, and executive action,
are part of criminal procedure.

In simple terms, the law of criminal procedure has three basic functions, namely, to:

(a) Enforce material law - as the formal part of material law, criminal procedure essentially
assists enforces the adjudication of actions which are identified as crimes by the common-law
of statutory law;

(b) Ensure legality in the procedure – the establishment of guilt, innocence or eventual
punishment may only be done within the prescripts criminal procedure;

(c) Ensure justice – the law makers are invariably obligated to establish a fair and thorough legal
process which, as far as possible determines facts without fear or favour. To this extent, criminal
responsibility must be determined after a due and balanced consideration of all the
incriminating and exculpatory factors.
1.3 CRIMINAL PROCEDURE IN THE CONTEXT OF THE CONSTITUTION

The Constitution of the Republic of South Africa (108 of 1996) is the supreme law of the land (s
2). In other words, every law, legislation or regulation must comply with the prescripts and spirit
of the Constitution. The Bill of Rights (chapter 2 of the Constitution contains most of the
provisions which protect individual rights in the context of criminal procedure. These include:

Section 8 (1): the Bill of Rights applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state.

Section 7 (2): enjoins state to respect, protect, promote and fulfil the rights in the Bill of Rights.

Section 35 protects various criminal procedural rights, which include:

(1) Arrested persons (s 35 (1) (a): the right to remain silent;

(2) Detained and sentenced prisoners (s 35 (2) (a): the right to be informed promptly of the
reason for detention;

(3) Arrested persons:

(c) to a public trial before an ordinary court;

(e) to be present when being tried;

to be presumed innocent, to remain silent, and not to testify during the proceedings;

(i) to adduce and challenge evidence;

(j) not to be compelled to give self-incriminating evidence;

Section 36: No right is absolute. The limitation clause (s 36) constitutes the basis upon which
the rights which are enshrined in the Bill of Rights. The provision lists a number of factors which
must be considered by the court before a right is limited. These include:

(a) the nature of the right;

(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.

1. 4 THE PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEDURE

As already alluded to above, the Constitution guarantees the right of every accused person to be
presumed innocent. In other words, every person who stands accused of an offence before any
competent court must be assumed innocent, unless and until evidence is presented which
proves otherwise. Factors such as prejudgment, prejudice and bias are the most common
factors which may be considered I this regard.
The following are some of the most notable factors which may affect the presumption of
innocence:

(i) previous convictions

As a rule, the CPA explicitly prohibits the use of previous convictions during a criminal trial (s
211). Thus, the fact that a court is aware of the existence of a criminal record against an
accused is calculated to lead to perceptions of unfairness to the accused. Thus, where a
presiding officer has previously sentenced an accused person in a different case, it is only fair
and appropriate that he should recuse himself from the present proceedings.

(ii) the presumption of innocence and the standard of proof

The prosecution is required, in criminal proceedings to discharge the onus. In other words, the
accused does not bear the responsibility to prove anything to the court. Where, for example, the
accused is charged of the offence of theft, it is for the prosecution to establish every element of
the offence, namely:

(a) the act (conduct);

(b) whether the act complies with the definition of the crime in question;

(c) whether the conduct of the accused is, indeed, unlawful;

(d) culpability (whether intention or negligence);

In criminal proceedings, the prosecution is required to discharge its onus beyond any
reasonable doubt. This is in contradistinction to civil proceedings, where the standard of proof
to be established must be on a balance of probabilities.

(iii) the presumption of innocence and the principle of legality

1.5 CRIMINAL PROCEDURE IN THE CONTEXT OF THE INQUISITORIAL AND ACCUSATORIAL

PROCEDURAL SYSTEMS

The roots of South African criminal procedure are found in the Roman, Roman-Dutch and
English law. There are distinctions between the accusatorial and inquisitorial models of
criminal procedure. The main distinction lies in the functions of the parties, i.e. the judicial
officer, the prosecution and the defence. In the inquisitorial system (for example, France) the
judge is the master of the proceedings (dominus litis), in the sense that he actively conducts,
and even controls the search for the truth by dominating the questioning of witnesses and the
accused. After arrest, the accused is questioned primarily by an investigating judge (not the
same as the presiding judge), and not by the police. During the trial, the presiding judge
primarily does the questioning, not the counsel for the prosecution or the defence.

Conversely, in accusatorial systems (the modern examples of which are the Anglo-American
systems), the judge is in the role of detached umpire, who should not enter the arena of the fight
between the prosecution and the defence for fear of his becoming partial or losing perspective
from the dust caused by the fray. The police are the primary investigative force; they pass the
collected evidence on to the prosecution in dossier (file) format, who then becomes dominus
litis; the prosecution decides on the appropriate charges, the appropriate court, etc. In court,
the trial takes the form of a contest between two theoretically equal parties (the prosecution
and the defence) who do the questioning, in turn leading their own witnesses and cross-
examining the opposition’s witnesses. South African criminal procedure is basically
accusatorial. But in certain circumstances a judge may, and sometimes even must, call
witnesses of his own (s 186). The procedure of questioning that may take place under s 115
(plea of not guilty), contains inquisitorial elements; as does part of s 112 (questioning pursuant
to a plea of guilty). On the other hand, the fact than an accused can be found guilty solely on his
plea of guilty without the judge doing any questioning to investigate the “truth”, is a strong
accusatorial element (even though it can happen only in the case of relatively minor offences).

Study paragraphs 1 – 1.3; 2.4; 3 and 5

ACTIVITIES AND FEEDBACK

Question 1

(i) The presumption of innocence principle is the cornerstone of constitutionalism. Do you agree
with the following statement and, if so, why?

(ii) What are the rights of the arrested suspect and the accused?

(iii) What is meant by the statement that criminal procedure is a system?

Question 2

Distinguish between the accusatorial and inquisitorial systems of law. To which system does
South Africa essentially adhere? (6)

FEEDBACK:

Question 1(i) In your answer to this question, you must discuss issues such as the crime
control model, due process model, the presumption of innocence and the right to remain silent,
and constitutionalism. You can explain constitutionalism in the light of what the rule of law and
the principle of legality require in a constitutional state, for example that juridical guilt is
important in a constitutional state. This means that it is not important to secure a verdict of
guilty at any cost and by any means whatsoever, but that it is imperative 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; that if a legal provision shifts the burden of proof to
the accused, then the restriction of the constitutional

right of the accused to be deemed innocent until proven guilty must comply with the limiting
provisions of section 36 of the Constitution, namely that the restriction must be reasonable and
justifiable as in an open and democratic society based on the principles of human dignity,
equality and freedom, taking due account of factors such as the nature of the law, the
importance and purpose of the restriction, the nature and extent of the restriction, and whether
there is a less restrictive way of achieving the set purpose.

A practical example of such a curtailment of the presumption can be found in the inverse or
reversed burden of proof in the case of applications for bail for Schedule 6 offences as
contemplated in section 60 (11) of the Criminal Procedure Act, where the accused must
convince the court that exceptional circumstances exist which in the interests of justice justify
that the accused should be released although facing a serious charge. It can be said, therefore,
that where bail applications relating to certain serious offences are concerned, South Africa
espouses a crime control model. Remember that, as indicated above, the different criteria of
proof required for each stage/phase/component may also have an impact on assessment of the
type of model.

(ii) See section 35(1) to 35(3) at the back of your textbook.

(iii) Look at the flow chart of the criminal process.

Question 2

The question is discussed in detail in chapter 1, paragraph 1.5, above.

2.LEARNING UNIT 2

CRIMINAL COURTS OF THE REPUBLIC

ORIENTATION

After studying this chapter of the textbook, you should be able to solve problems related to a
practical set of facts on any of the following matters, or to discuss any of the following
concepts:

Differentiate between the different courts of the Republic according to

• Hierarchy

• Status and standing

• Jurisdiction as it relates to

Ø Offence; and

Ø Sentence

LEARNING OUTCOMES

Once you have studied chapter 2 of the textbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, namely:

Which court enjoys jurisdiction where

• an offence was allegedly committed in general

• uncertainty exists regarding the precise place (within the Republic) where the offence
was allegedly committed; and

• an offence was committed outside the borders of the Republic.

The jurisdiction of the court in respect of sentence where the charge was heard in the

• high court;

• regional court; and

• district court
1 INTRODUCTION

This chapter emphasises the hierarchical structure of South African criminal courts and their
different jurisdictions. The hierarchical structure of criminal courts are represented in a pyramid
of three levels. The bottom level is constituted of the lower courts. As the name indicates, lower
courts are subsidiary in stature, jurisdiction and powers to High Courts on the middle level of
the structure.

The Constitutional Court (CC) and the Supreme Court of Appeal (SCA) at the top of the pyramid
are vested with the highest authority. After the discussion of the various criminal courts of the
Republic (with their various seats) in order of status, the discussion focuses on the jurisdiction
of the courts in respect appellate jurisdiction, types of crime, the place where the offence was
allegedly committed (territory), applicable penalties and the validity of legal provisions.

2 THE COMPOSITION OF THE COURTS

2.1 High Courts

The Constitutional Court (CC) (Johannesburg) is the highest court in the land, and consists of 11
judges, namely, the Chief Justice, Deputy Chief Justice, and nine other judges. A matter before
the Constitutional Court must be heard by at least eight judges. The court has final jurisdiction
in respect of all matters. This court may decide all constitutional matters and may also decide
any factual or legal matters only if the Constitutional Court grants leave to appeal on the
grounds that the matter raises an arguable point of law of general public importance which
ought to be considered by this court.

The Supreme Court of Appeal (SCA) (Bloemfontein) is the second highest in the Republic. It
consists of the President and Deputy-President of the Supreme Court of Appeal and as many
other judges as may be determined in accordance with the prescribed criteria, and approved by
the President of the Supreme Court. The SCA normally consists of five judges for all criminal
matters. This SCA may decide any matter on appeal and may enquire into and rule on the
constitutionality of any legislation or any conduct of the President.

South Africa has nine divisions of the high court. A High Court ‘division’ represents the highest
court seat within a particular province. In other words, criminal appeals from the lowest court to
the highest in the particular jurisdiction must be directed to its own ‘provincial’ division. Each
division of the High Court consists of a Judge President and one or more Deputy Judges
President, and as many other judges for each division as may be determined in accordance with
the prescribed criteria, and approved by the President. A single judge presides in a trial matter
unless a full bench of three judges is appointed. An appeal is heard by either two or three
judges.

The Judge President of a division of the High Court may establish a circuit court under the
jurisdiction of that division to adjudicate civil and criminal matters. Each circuit court of a
division must sit at least twice a year at such times and places as may be determined by the
Judge President.
2.2 Lower Courts

Magistrate’s Courts are constituted of district and regional courts. Magistrates preside over
cases on both the district and regional courts. The appointment of magistrates (judicial officers)
is regulated by the Magistrates Court Act 32 of 1944 (s 9).

The Magistrates Court Act also regulates the establishment of periodical courts (s 27).
Periodical courts are magistrates’ courts which sit at regular intervals at places other than the
seats of fixed permanent district courts. They perform the same function in large and sparsely
populated areas as circuit courts in the case of the High Court.

3 JURISDICTION

In general, jurisdiction denotes the authority of a court to hear and decide any issue or a
specific matter whether on trial, on appeal or on review. Jurisdiction is delineated into three
categories, namely, jurisdiction in respect of offences, territory and punishment.

The content relating to jurisdiction in respect of (the extent of) crimes and the validity of legal
provisions is quite elementary and relatively easy to grasp. The study material in this regard is
self-explanatory, but must be studied with due diligence because of its application and
applicability to everyday practice.

3.1 Offence jurisdiction

The high courts and the lower courts enjoy different standards of jurisdiction in respect of
offences. It may also be noted that a distinction exists in respect of the jurisdiction of regional
and district courts.

3.2 Territorial jurisdiction

Territorial jurisdiction is divided into offences which take place:

3.2.1 on RSA soil; and

3.2.2 outside the RSA.

3.3 Sentencing jurisdiction

Sentencing jurisdiction across the hierarchy of courts differs in power and extent. The study
sentencing jurisdiction requires a thorough perception of the distinction between crimes
committed in South African courts.

ACTIVITY (1)

Answer the following question.

X and Y steal a car in Tshwane and travel north. At Bela-Bela they stop at a filling station, assault
the petrol attendant, who she runs away in the process, and fill the car's tank with fuel. On the
way to Modimolle they see a parked police car under a tree between the borders of the districts
of Bela-Bela and Modimolle, and they turn around. They are apprehended in Bronkhorstspruit.
Would they be tried in the lower courts of Tshwane, Bela Bela, Modimolle or Bronkhorstspruit?
Would the charge be theft of the car, theft of the fuel or assaulting the petrol attendant?

Discuss. (8 marks)

FEEDBACK ON ACTIVITY (1)

The following matters must be covered in your answer: According to the general rule, a lower
court (both a district and a regional court) has jurisdiction with regard to crimes committed
within its area. The following extensions of this rule apply to the facts of the case:

(1) A crime committed within four kilometres outside the boundary of the district or regional
court may be tried in that specific court.

(2) Where the theft of goods is concerned, the court of the area within which X and Y had the
goods or part of the goods in their possession may exercise jurisdiction since theft is a
continuing offence.

(3) Where several crimes have been committed in different areas, the DPP may order that the
trial take place in a particular district or regional court.

Application to the facts: The theft of the car took place in Tshwane (but also in other districts,
because theft is a “continuing crime”) and, according to the general rule cited above, X and Y
can be tried at any of the said places. They had the car in their possession in Tshwane, Bela Bela
and Bronkhorstspruit and, also in accordance with the extended rule above, could therefore
stand trial there. The car was driven to within four kilometres of the border between Bela-Bela
and Modimolle. Theft was therefore committed within four kilometres of the border and they
can be tried in Modimolle as well. The theft of the fuel took place in Bela-Bela, and they can
therefore be tried there. It can be assumed, however, that they had some of the fuel in their
possession in Bronkhorstspruit and Modimolle, and consequently, for the reasons mentioned,
they can also be tried in those places. The assault took place in Bela Bela and they must be tried
for it in that place. Finally it must be borne in mind that because different crimes were
committed in different places, the NDPP may order a trial in one of the various courts of any of
the relevant districts.

SELF-EVALUATION

Discuss the constitutional jurisdiction of the Constitutional Court.

FEEDBACK ON SELF-EVALUATION

See the discussion in paragraph 2.1.2 of the textbook.

3.LEARNING UNIT 3

The prosecution of crime

ORIENTATION

This learning unit essentially deals with the structure, functions and ideological orientation of
prosecutorial authority in South Africa. The study material in learning unit is essentially geared
towards providing in-depth understanding of the mechanics of prosecution at a structural and
operational level.

LEARNING OUTCOMES

Once you have studied chapter 3 of the textbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:

• identify and analyse the need for a system of prosecution in civilised societies

• distinguish between a system of private and public prosecutions

• describe the nature, scope and content of the South African system of prosecution with
specific reference to

― the constitutional mandate of the National Prosecuting Authority

― the legislative authority by which the National Prosecuting Authority operates in South
Africa

― the professional independence of the prosecuting authority

• discuss and critically evaluate the role of the prosecutor as dominis litis, and its effect
on the discretion to prosecute

• fully distinguish between withdrawal of a charge and the stopping of prosecution and
identify their effect in a given practical scenario

• discuss the practical content and effect of the prescription of the right to prosecute

• critically evaluate the role of ethics in the prosecution of crime

• discuss in detail the nature, scope and content of the diversion of criminal trials in
South Africa

• discuss in detail the nature, scope and content of private prosecution by elaborating on
the following concepts:

― private prosecution under statutory right

private prosecution by an individual on a certificate of nolle prosequi, and related aspects

Introduction
This learning unit discusses the role played by the institution of prosecution in the criminal
justice system. In most criminal justice systems the State is at the centre of the resolution of
disputes between individuals which result in the laying of criminal charges. This is because the
State is regarded as the most powerful arbiter with the necessary resources to facilitate such an
exercise. Under these circumstances, prosecutions are, therefore, conducted on behalf of the
citizenry, which has a vested interest in the outcome – hence the term, “public prosecution”,
with exception, of course, of private prosecutions. It is no surprise, therefore, that every criminal
case is titled State v. Zulu (or any other name to which the accused answers).

The structure and composition of the prosecuting authority

In South Africa the function of public prosecution is carried out by a single National Prosecuting
Authority. Its powers are derived from the Constitution and the National Prosecuting Authority
Act 32 of 1998. In terms of the Constitution, the National Prosecuting Authority is headed by one
National Director of Public Prosecutions (the NDPP), and deputy national directors of public
prosecutions (DNDPP’s), directors of public prosecutions (DPP’s), deputy directors of public
prosecutions, and prosecutors. At the seat of each High Court is an office under the control of a
DPP with deputies and prosecutors. For example, there are offices for the North-Gauteng
(Pretoria), South-Gauteng (Johannesburg), Pietermaritzburg and so on. The prosecutors in the
services of the office of the DPP are designated as “advocates” and those in the lower courts
simply as “prosecutors”.

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 NDPP
exercises control and authority over the deputy national directors and directors. The NDPP is
responsible for the institution of a prosecution policy and the issuing of policy directives, the
appointment of prosecutors, directors and deputy directors, and the granting of written
authority for them to prosecute. The NDPP is empowered to intervene in any prosecution
process where the policy rules have not been complied with and, after consulting with the DPP,
may review the decision to prosecute at the request of persons whom he deems to be
interested parties.

Prosecutors in lower courts exercise their powers subject to the authority of the relevant DPP in
whose area of jurisdiction the relevant lower court is situated. According to section 21 of the
National Prosecuting Authority Act, the prosecution policy must determine the circumstances
under which prosecutions are instituted in the High Court as a court of first instance in respect
of offences referred to in Schedule 2 of the Criminal Law Amendment Act 105 of 1997.

The Constitution stipulates that the Minister of Justice exercises “final responsibility” over the
prosecuting authority. This must interpreted to imply oversight over the activities of the NPA,
instead of direct control. In the same vein, the NPA is accountable to Parliament and not to the
Minister of Justice for decisions regarding the institution of prosecutions.

Accordingly, the Minister is not responsible for decisions to prosecute (Minister of

Justice and Constitutional Development v Moleko) [2008] 3 All SA 47 (SCA) [par 18].

Private prosecution

A prosecution conducted under the auspices of the NPA is known as a “public prosecution”. The
prosecutor exercises, in respect of every case, a discretion whether or not to proceed with
prosecution. 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 him. There are various reasons why the director might take such a decision. He
might, for instance, be convinced 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 he might feel that it is a trivial case that does not merit attention from the state
(de minimis non curat lex)

To prevent an interested party from taking the law into his own hands in such a case and
punishing the offender on his own initiative, provision has been made for such a person to
institute a prosecution against the offender on his own behalf. Such a prosecution is known as a
“private prosecution”, which is essentially a safety valve to relieve the pressure that has built up
in society as a result of a decision by the prosecuting authority not to institute a prosecution. A
prosecution undertaken at the instance of a private individual is called “private prosecution”.
The latter occurs where the individual feels aggrieved by a decision of the prosecuting authority
not to institute a prosecution in a particular case. See paragraph 4.14 for other reasons.

In South Africa private prosecutions are rare, but they are nevertheless regarded as an

essential part of our criminal justice system. The rules concerning private prosecutions

are discussed at length in this chapter.

QUESTION 1

Identify the differences between public and private prosecution.

QUESTION 2

Discuss the distinction between withdrawal of a charge and stopping of the prosecution.

QUESTION 3

The prosecution must at a trial be able to furnish proof beyond a reasonable

doubt. Occasionally there might be good grounds for refusing to prosecute despite the fact that
a prima facie case exists.

Discuss “the discretion of the prosecutor to prosecute”.

4.LEARNING UNIT 4

The right to legal assistance

ORIENTATION

Study unit 4 deals with the application of legal representation during the different stages of the
criminal justice process. In terms of the Constitution (s 35) every arrested, detained and
accused person is entitled to legal representation. The latter applies, as suggested by the
content of the Bill of Rights, throughout all the stages of the criminal justice process, that is,
from the point of arrest, during trial, and right through to the appeal process.

LEARNING OUTCOMES
After studying studied chapter 4 of the handbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:

• sketch the historical development of the right to legal assistance in South Africa with
reference to the pre-constitutional and post constitutional position

• discuss case law reflecting the development of the right to legal assistance

• fully enumerate the right to legal assistance during the pre-trial phase of the criminal
process

• fully enumerate the right to legal assistance during trial with specific reference to

― the duty to inform the accused of the right to legal assistance

― the duty to afford the accused an opportunity to obtain legal representation

― the role of the legal representative and others in providing assistance to the accused

― the accessibility of legal representation

1 INTRODUCTION

This chapter brings to your attention the notion that the right to legal representation is a
fundamental right which originates in divine and natural law. The right to legal assistance is as
important a component of criminal justice as a fair trial and equality before the law. The right to
legal representation may be termed ‘an accused’s most pervasive right’. The right to legal
representation is also ‘central to the right to a fair trial’ – Flynn 2016 Melbourne University Law
Review 209.

The right to legal representation exists throughout the entire criminal justice process. Thus, a
person is entitled to the right in the first instance, during the pre-trial stage. This is particularly
pertinent and relevant immediately when he is identified as a suspect especially when the
person is interrogated by the police with a view to charging him or her.

The accused may require legal representation and legal assistance during the trial itself. The
two concepts must be differentiated as they do not necessarily refer to the same exercise. Legal
representation refers to the services of a trained legal representative, whereas legal
assistance applies an accused under the age of 18 years may be assisted by his or her parent,
an appropriate adult or a guardian, in terms of s73(3) of the CPA and s 65 of the Child Justice Act
75 of 2008.This right is embodied in the Constitution and is entrenched in s 35.

In the case of legal representation, the court is saddled with an express duty, not only to inform
the accused about this right, but also to afford him or her ample opportunity to secure the
services of a legal representative of his or her choice. The accused is not to mere legal
representation but to competent legal representation. In the same vein, the legal representative
must not only provide effective legal representation, but should also be eligible to appear before
court. The ineligibility of a person to perform the role of defence counsel, who nonetheless
assumes role constitutes a serious irregularity that invalidates the criminal proceedings.

QUESTION 1

Read the following set of facts and then answer the following question:
A and B are charged with theft on the allegation that they have harvested and removed, and
thereby stolen, green mealies and pumpkins with an estimated value of R7 320 from the land of
the headman, which he had leased to the complainant. A and B are also involved with the
complainant in an ownership claim by virtue of their allegation that the land does not belong to
the headman but to their deceased father. A and B are unrepresented during their trial and
testify that they have harvested the mealies and pumpkins from their own land. The magistrate
asks the accused whether they are going to retain legal counsel, to which they answer that they
cannot afford it. A and B have not asked for legal assistance, and the court deals with the case
without any legal representation for A and B, who are found guilty.

Did the presiding officer act correctly by dealing with the case without legal representation for
the accused? (This question is based on the facts in Hlantalala.)

QUESTION 2

“Mere lip service is paid to the unhindered application of the principle of the right to legal
representation, and this principle is only partly upheld in the South African system of criminal
procedure.”

Discuss this statement critically and indicate whether you agree or disagree.

5.LEARNING UNIT 5

THE ACCUSED: HIS OR HER PRESENCE AS A PARTY

ORIENTATION

One of the most important ingredients of a fair trial includes the right of the accused to have a
public trial to which all can bear witness. By like token, the adversarial process of which South
Africa is a proponent, recognizes the right of every accused person to confront their accuser
during the trial hearing. The presence of the accused during trial proceedings is, therefore, an
indispensable ingredient of the right to a fair trial.

Although in other jurisdictions of the world it is, indeed, possible, South African law does not
provide for instances of trial in absentia. However, in a limited set of circumstances,
proceedings (not trials!) may be conducted in the absence of the accused.

LEARNING OUTCOMES

Once you have studied chapter 5 of the handbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:

· understand why it is necessary for the accused to be present at the trial

· be able to show that confrontation is the essence of the basic principle of the presence of the
accused as a party in a criminal trial

• be familiar with the content of the confrontation principle and know when an accused
forfeits this right or what exceptions to the exercise of this right are

admissible
 • be able to name the exceptions, write notes about each of them, explain when

each exception applies and describe what procedure has to be followed in each case

· know what constitutional guarantees exist for this right

1 Introduction

This learning unit emphasises one of the most fundamental principles of the law of criminal
procedure, namely, that an accused must be present at the 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 himself fully, it can be said that his
constitutional right has been infringed. This basic principle is guaranteed in sections 34 and
35(3)(c), (e), and (i) of the Constitution and is also prescribed in section 158 of the Criminal
Procedure Act.

2 Exceptions

However, there may be instances where the presence of the accused in court may be dispensed
with. The following are the exceptions to the rule that the trial must take place in the presence of
the accused:

2.1 Absence due to misconduct

The first exception discussed is the trial of an accused in his absence owing to misconduct. It is
necessary to remove an accused from the court if he misbehaves during the trial since he can
actually prevent the court from deciding his guilt on the charge in question by making it
impossible for the court to continue with the trial.

2.2 Several accused

The second exception occurs in a situation where there are several accused and one of them is
absent. In such cases the trial would normally be postponed to a later date.

2.3 Evidence by means of closed circuit-television

The third exception is where the court gives or makes an order for evidence to be given by means
of closed circuit-television or similar electronic media.

2.4 Postponement of certain criminal proceedings through audiovisual link

Sections 159A to 159D of the Criminal Procedure Act make provision for the postponement of
certain criminal proceedings through audiovisual link.

2.5 Admission-of-guilt fines

The purpose of the admission of guilt fine, according to section 57 is, firstly, to help the accused
to avoid appearing in court and, secondly, to avoid the possibility of the courts being swamped
by trials that could otherwise be finalised by this simple procedure (admission-of-guilt fines).
2.6 Absence of an accused during an enquiry into the accused's mental capacity - section
79(2)(b) Where the period of committal is extended for the first time, the accused need not
be present unless he raises an objection against the extension.

SELF-EVALUATION

(1) Briefly discuss the principle that an accused must be present at his trial. (4 marks)

(2) Briefly discuss each exception to the principle that an accused is entitled to be present at
the trial and to confront his accusers. (about four to six marks awarded for each exception).

(3) Discuss the compounding of minor offences and explain the difference between
compounding offences and the admission-of-guilt fine. (4 marks)

FEEDBACK ON SELF-EVALUATION

(1) The discussion in this regard is given in par 1 under the heading ``The general rule''.
Remember to refer to decided cases in your discussion.

(2) The three exceptions are discussed in paragraphs 2.1 - 2.3 of the handbook.

Note that compounding of offences is not an exception to the general principle. Redemption of
a crime takes place where an accused may prevent the institution of a prosecution by paying a
sum of money. If the amount is paid, there is no prosecution, in which case the presence or
absence of the accused is not in dispute. Remember to refer to decided cases in your
discussion!

6.LEARNING UNIT 6

The exercise of powers and the vindication of individual rights

(Chapter 6 of the Textbook)

ORIENTATION

This chapter serves as an introduction to the first phase of the criminal process and
emphasises that the exercise of powers for which provision is made in this phase of

the criminal process encroaches on the rights of the individual. This chapter essentially
highlights the value attached to individual rights, and the constraints that are placed on
encroachments to these rights. The Constitution places high estimate on the individual rights
enshrined to the Bill of Rights to the extent any inroads hereto may be reviewed to determine
whether they conform to the requirements of the Constitution.

LEARNING OUTCOMES

Once you have studied chapter 6 of the handbook, you should be able to solve problems related
to a practical set of facts on the following aspect and concepts:

• outline the fundamental meaning of “reasonable grounds” and “reasonably necessary”

in relation to the requirement of reasonableness in the exercise of power

1 INTRODUCTION
Any person who exercises the powers of search or arrest in circumstances that are in conflict
with the provisions of the Constitution, and for which no other explicit legislative provision is
made, commits an unlawful act and is liable to civil claims from persons who are prejudiced by
such act. The requirements that have to be met for the person to be guilty of a crime are
discussed in the criminal law course and will not be repeated in this course.

2. THE REQUIREMENT OF REASONABLENESS IN THE EXERCISE OF POWERS

The requirement for ‘reasonableness’ is found in various provisions of the Criminal Procedure
Act. For example, section 20 governs the circumstances under which articles may be seized if
they are ‘on reasonable grounds believed to be’ somehow connected to the alleged commission
of an offence.

Section 21(a) authorises the issuing of search warrants where ‘reasonable grounds for believing’
that certain articles may be found at a particular premises. In terms of s 24 a person in charge of
or occupying premises may conduct a search and seize articles provided he or she ‘reasonably
suspects’ certain circumstances to exist.

In the context of arrest sections 40 and 49 contain references to actions of reasonableness

which are required of the person effecting arrest on a suspect.

The above-mentioned represent just a few examples of the many instances in the CPA where
the requirement of reasonableness is required in our law. You are required to be able to match
these theoretical underpinnings to a set of facts in any given practical scenario.

QUESTION 1

Discuss the terms “reasonable”, “justifiable” and “proportionality” with reference to the
criminal procedural powers of the police in the pre-trial phase.

FEEDBACK

See p. 138, par. 3 of the prescribed textbook

QUESTION 2

Discuss the conflict between the interests of society in upholding individual rights and its
interest in combating crime, and indicate how this conflict can be resolved.

FEEDBACK

See p. 133, par. 1 of the prescribed textbook

7.LEARNING UNIT 7

Securing the attendance of the accused at the criminal trial (

Chapter 7 of the Handbook)

ORIENTATION
Once you have studied this chapter of the handbook, you should be able to solve problems
related to a practical set of facts on any of the following matters, or to discuss any of the
following concepts:

• describe the nature, scope and contents of a summons, written notice, charge sheet
and indictment

• the essence and process of arrest

• discuss the nature, scope and content of extradition in terms the Extradition Act 67 of
1962

LEARNING OUTCOMES

Once you have studied chapter 7 of the handbook, you should be able to solve problems related
to a practical set of facts on the following:

• identify different methods of ensuring the presence of an accused at his trial

• write notes about each method

• write notes on the following:

(i) procedure after arrest

(ii) the effect of arrest

(iii) the duty to arrest

(iv) escape from lawful custody

• specify the requirements for

(i) lawful arrest

(ii) warrants for arrest and the execution thereof

• do the following regarding powers of arrest and overcoming resistance to arrest:

(i) indicate with reference to a set of facts whether an arrest was lawful or not

(ii) indicate whether the person who tried to make the arrest had the

required authority to do so or to resort to force to make the arrest

1. INTRODUCTION

There are various means by which an accused’s attendance at the trial may be secured. The
most important are a summons, a written notice to appear, an indictment, or the arrest of the
accused – s 38 of the Criminal Procedure Act.

2 SUMMONS

This is used for a summary trial in a lower court where the accused is not in custody or about to
be arrested. 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.
3. WRITTEN NOTICE TO APPEAR

A written notice essentially offers the suspect the option of paying an Admission of Guilt fine,
instead of appearing in court.

4. INDICTMENT

When an accused is due to appear in the high court, they do so through a document called
the Indictment. The latter is drawn up in the name of the director of public prosecutions and
served on the accused before the trial date.

The indictment important information relating to the trial such as the charge against the
accused, his name, address, sex, nationality and age. It must be accompanied by a summary of
the substantial facts of the case and a list of the names and addresses of state witnesses.

5. ARREST

Arrest represents one of the most drastic methods with which an accused may be brought
before court to face charges. This is because arrest, in essence, infringes some of basic rights
enshrined in the Bill of Rights such as

· The right not to be deprived of his freedom arbitrarily or without just cause (s 12(1)(a)); and

· The right to freedom of movement (s12(1).

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 of arrest has been obtained. It is only in exceptional circumstances that private
individuals, or even the police, are authorized to arrest anyone without the authority of a
warrant. For example, any arrest without a warrant which is not specifically authorized by law, is
deemed unlawful. Even a police official who executes a warrant for the arrest of a person must
exercise proper care in doing so. In addition, the law lays down very strict requirements to be
complied with when is used to affect an arrest.

5. EXTRADITION

Although extradition is likewise not essentially a method of ensuring the presence of the
accused at the trial, it is covered in this chapter because it is a means of ensuring that the
accused is handed over to the authorities of another state to enable them to bring him before
the court of that state. In order to extradite a person, he has to be arrested, which is why section
40(1)(k) of the Act provides that a police officer may arrest a person without a warrant on the
reasonable charge or credible information that the person was involved in an act that was
committed outside the Republic and is recognised as an offence in South Africa. It is therefore
suitable to discuss extradition in conjunction with arrest although the extradition process is sui
generis and is regulated by a specific statute.

Question 1

Discuss the powers of private persons to arrest without a warrant.

Question 2

Discuss the requirements for lawful arrest.

FEEDBACK
Question 1

See par. 5.4.2.2 of the prescribed textbook

Question 2

See par. 5.2 of the prescribed textbook

8.LEARNING UNIT 8

Interrogation, interception and establishing the bodily features of a person

(Chapter 8 of the Textbook)

ORIENTATION

Once you have studied this chapter of the textbook, you should be able to solve problems
related to a practical set of facts on any of the following matters, or to discuss any of the
following concepts:

• The power to interrogate, in general

• The power to interrogate in respect of suspects and potential witnesses

• Interception and monitoring

• The establishment of bodily features and the collection of bodily samples, and the
powers of the persons tasked with these aspects

LEARNING OUTCOMES

Once you have studied chapter 8 of the textbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:

• Identify the circumstances under which interrogation may be conducted

• Identify the Constitutional and legislative provisions relating to interrogation

• Identify the applicability of interrogation to different personalities, such as suspects and

witnesses, and be able to apply what you have learnt in this regard to a set of facts

• Discuss the circumstances under which interception and monitoring is allowed by the
law

1. INTRODUCTION

In the investigation of crime, the police are largely dependent on information supplied by
members of the public. To obtain such information, the police normally question persons when
they have good reason to suspect that the persons from whom information is sought in
possession of information related to the commission of a crime. Examples include persons who
observed the commission of the crime, gained information about the commission of the crime
by other means, or were personally involved in the commission of the crime.

2 THE CIRCUMSTANCES INTERROGATION TAKE PLACE

To assist the police in their task of investigating crime, and to protect them against actions that
may arise if cooperation is not given willingly, the police have been invested with legal powers to
enter premises if necessary by forcible means to take statements. Naturally the police are
indemnified against actions only if they have acted within their powers. These powers are
discussed in paragraph 1.1 and 1.3(chapter 8) in the textbook.

Special powers are delegated to the prosecuting authority to cause a person to appear before a
judge, magistrate or regional magistrate to answer questions about the commission of a crime.
The process is facilitated by section 205 of the CPA. The person can decide to cooperate with
the state voluntarily. However, f he answers questions to the satisfaction of the prosecutor or
the DPP, the need to appear before the court disappears. The DPP may, in terms of section 185
apply to the court to keep a potential witness in custody as a safety measure or, to prevent him
from fleeing without giving the necessary evidence. In such circumstances interrogation or
further interrogation of the witness takes place in the prison or in a place of safety. (Full
discussion in paragraphs 1.2 (chapter 8).

3. INTERCEPTION OF PRIVATE COMMUNICATIONS

The right to privacy (s 14) is one of the most pivotal protections afforded by the Constitution. In
the same vein, the police sometimes require unconventional powers to investigate the
commission of offence. This may need special rights. The Regulation of Interception of
Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA) is
especially aimed at protecting the privacy of communications subject to certain exceptions.
The latter are limited “serious crimes or threats to national security”.

4 THE ASCERTAINMENT OF BODILY FEATURES

The police are vested with rights to ascertain the bodily characteristics of persons who are
under reasonable suspicion of being involved in the commission of certain crimes. These
powers are exercised by such measures as obtaining blood samples and fingerprints, footprints
and palm prints.

ACTIVITIES AND FEEDBACK

ACTIVITIES

Question 1

Discuss the ascertainment of the bodily features after arrest. (15)

Question 2

Discuss the circumstances under which the interception and monitoring of communications
may be sanctioned by law. (4)

FEEDBACK

Question 1

The obtaining of data through finger, palm and foot-printing, conducting identity parades,
ascertaining of bodily features, taking of blood samples and taking of photographs is regulated
by s 37 of the CPA.

The discussion hereof is contained on par. 3 of chapter 8 of the prescribed textbook.

Question 2

See par. 2 of chapter 8 of the prescribed textbook.

9.LEARNING UNIT 9

Search and seizure

(Chapter 9 of the Textbook)

ORIENTATION

Once you have studied this chapter of the textbook, you should be able to solve problems
related to a practical set of facts on any of the following matters, or to discuss any of the
following concepts:

• Articles which may be seized during a search

• Searches which are conducted with a search warrant

• Searches which are conducted without a warrant

LEARNING OUTCOMES

Once you have studied chapter 9 of the textbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:

• Identify articles which may be seized during a search and the exceptions thereto

• Identify the Constitutional and legislative provisions relating to search with a warrant,
and be able to link these to a set of facts

• Identify the Constitutional and legislative provisions relating to search without a

warrant, and be able to link these to a set of facts

• Identify the legal requirements of searches in general

• Identify the circumstances under which aa arrest may proceed by way of a warrant, and
be able to apply the relevant legislative and Constitutional provisions to a set of facts

• Discuss the disposal and forfeiture of seized articles

1. Introduction

The purpose of this chapter is to inform you about the circumstances under which search and
seizure may take place so that you can determine whether in certain cases a search or the
seizure of objects can be carried out forcibly, whether an actual search was conducted lawfully
and with due regard to the constitutional guarantees of the right to personal privacy, freedom
and safety, as well as the right to bodily and physical integrity, and whether it was legal to seize
the objects concerned.

As a general rule, all searches conduced on a person and/ or on their property should be
conducted through a search warrant. The right to property and privacy are threatened by
searches and seizures that take place without a person’s consent. The law prescribes strict
rules to be observed in this regard. The power to carry out a search or to seize an article is an
exception to the rule, to curtail unwanted and unwarranted inroads into an individual's right to
privacy or property without the person's consent.

2. Articles which may be seized through a search and seizure process

The Criminal Procedure Act prescribes a list of articles which may be seized during a search. It
must be noted in this regard that not all articles which are connected to illegality may
necessarily be seized. The law provides additional protections to the person whose property is
under investigation. The safeguards are intended to further promote the fairness and integrity
the justice process.

3. The contents and operational functions of a search in terms of a warrant

Searching without a warrant may only take place in narrowly circumscribed circumstances with
the person's consent or where the police officer reasonably concludes that a search warrant
will be issued on request, and that the purpose of the search would be defeated if a warrant had
to be issued beforehand.

A warrant may issued by a judge, magistrate or justice of the peace. In addition, such warrant
may be issued in chambers or by a judge or magistrate during criminal proceedings if they deem
such issuance necessary for the proceedings in question. In Minister of Safety and Security v
Van der Merwe 2011 (5) SA 61 (CC), the Constitutional Court set out the prerequisites which
must be complied by a judicial officer before authorising a warrant.

4. The contents and operational functions of a search without a warrant

The CPA and ancillary legislation make provision for instances of searches without a warrant.
The most notable and common example in this regard is where the police erect road-blocks and
then proceed to conduct searches on vehicles and persons.

5. What happens to the articles which are seized in the course of a search?

The Criminal Procedure Act (s 30 – 36) regulates the disposal and forfeiture of seized articles. An
article which is seized by a police official in terms of s 20 must be dealt with according to the
provisions of the Criminal Procedure Act. Such an article is normally kept in police custody and,
if required for criminal proceedings, handed to the clerk of the magistrate’s court or registrar of
the High Court for safe custody.

FEEDBACK AND ACTIVITIES

ACTIVITIES

Question 1

Discuss the formal and informal law consequences of unlawful actions by the authorities.

Question 2

A group of police officers conduct a search (using a warrant issued by a magistrate) on Z’s
house, and seize certain documents. According to the affidavit supporting the issuing of the
warrant, the documents sought might ‘assist in the investigation of certain fraudulent activities‘.
Z, who is a politician, is convinced that the search is a ‘witch-hunt’ instigated by his political
opponents. He approaches his attorney to challenge the validity of the warrant, which he is of
the view, does not comply with Constitutional muster. Discuss the prospects of Z’s success.

FEEDBACK

Question 1

See par. 9 of the prescribed textbook.

Question 2

See par. 4.2 of the prescribed textbook.

10.LEARNING UNIT 10

Bail and other forms of pre-trial release

(Chapter 10 of the Textbook)

ORIENTATION

Once you have studied this chapter of the textbook, you should be able to solve problems
related to a practical set of facts on any of the following matters, or to discuss any of the
following concepts:

• The balance between the right to freedom and the need to incarcerate offenders

• Pre-trial release by the police, the prosecution and the court

• The practical workings of pre-trial release in the context of the legislative and
Constitutional framework of criminal procedure

LEARNING OUTCOMES

Once you have studied chapter 10 of the textbook, you should be able to solve problems related
to a practical set of facts on any of the following matters, or to discuss any of the following
concepts:

• Identify the applicable principles of pre-trial release in the context of the Constitution,
the Criminal Procedure Act 51 of 1977, and criminal procedure in general

• Identify and discuss the circumstances under which pre-trial release by the police, the
prosecution and the court may be countenanced

• Identify and discuss the factors which must be taken into account by a court before
granting or refusing bail

• Identify and discuss procedural and evidential aspects of bail

1. Introduction

The right to freedom is one of the most prized rights in the context of the Bill of Rights. After the
arrest of an alleged offender, the arrestee essentially enjoys the right to be release from custody
on bail or by some other method (s 35(1)(f) of the Constitution) if it is in the interests of justice to
do so. The CPA makes provision for two processes during which an accused may be released
before the trial, namely, before the accused appears in court, and when the accused has
already appeared. Each process is endowed with its own requirements.

2 Different forms of pre-trial release

In terms of the CPA an accused may be released before their first appearance in court by:

2.1 The police

This type of release is informally referred to as ‘police bail’, and is governed by s 59. bail in this
regard is restricted to minor offences and strictly cash payments. In addition, only a police
officer of a particular rank may authorise bail.

2.2 Prosecutorial bail

In terms of s 59A this type of may be granted only 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 housebreaking, culpable homicide, assault with the intention to commit
serious bodily injury, and fraud or forgery involving amounts set out in the provision.

2.3 Court bail

This is sometimes referred to as formal bail in the sense that it takes place in court under the
auspices of sections 58 and 60.

FEEDBACK AND ACTIVITIES

ACTIVITIES

Question 1

Discuss the factors that must considered by the court when determining whether or not it is in
the interests of justice to release the accused on bail. (

Question 2

Briefly discuss the procedure as it relates to police bail.

FEEDBACK

Question 1

See par. 5.2 of the prescribed textbook

Question 2

See par. 2 of the prescribed textbook

11.LEARNING UNIT 11

Indictments and charge sheets

(Chapter 12 of the textbook)

This Learning unit is divided into two parts for easy reference and reading. The first part will
examine indictments and charge sheets that is, how the accused is informed about the charges
against him or her. The second part will examine plea proceedings.

ORIENTATION

Once you have studied this learning unit of the study guide, you should be able to solve
problems related to a practical set of facts on any of the following matters, or to discuss any of
the following concepts:

• the requirements related to the form and content of, and the similarities and
differences between, charge sheets and indictments

• the essence of further particulars in the criminal justice process

• the correction of defects emanating from the drafting of charges

• the dynamics relating to the splitting charges and duplicating of convictions

• the joinder of offences and several accused

LEARNING OUTCOMES

After you have finished studying this learning unit, you should be able to:

• Explain the importance of further particulars in the wider sense of the criminal
justice process.

• Enumerate the essential elements of a charge sheet.

• Explain the amendment of charges during criminal proceedings

• Discuss the requirements, content, similarities and differences between a

charge sheet and an indictment.

• Discuss the splitting of charges and the duplication of offences

• Discuss the joinder of offences

1 Introduction

As soon as the prosecutor decides to charge an accused, a document is drawn up by the

prosecutor which forms the essence of the criminal proceedings, in the sense that all the
information relating to the criminal proceeding are contained therein. The document used in the
high court is the Indictment, whereas the one used in the lower courts is the charge sheet. For
the sake of convenience, we will use the term charge sheet, to describe either of the two
documents. Amongst the most important contents of the charge sheet are the charges against
the accused. It is of crucial significance that the charges be set out as precisely and as
accurately as possible, to allow the accused to mount a meaningful and adequate defence
against the charges.

2. The legislative and Constitutional imperatives of the right to further particulars

In general, the Constitution (s 32) guarantees everyone has the right of access to any
information held by the state and any information that is held by another person and that is
required for the exercise of protection of any rights. In terms of s 35(3)(a), an accused has the
right to be informed of the charge with sufficient detail to answer it. The implication hereof is for
the accused to be provided with information on which the prosecution relies upon to allow the
accused to prepare their cases accordingly. The question of whether the state is obliged to
provide certain particulars depends on the circumstances, as well as whether the accused
reasonably requires more information than is in the charge sheet for the preparation and
presentation of his defence.

3 The requirements of a valid charge sheet

The Criminal Procedure Act lays down strict conditions that charge sheets must comply with in
order for the accused to be provided with sufficient information about the nature of the charge
against him. Section 84(1) of the CPA requires that sufficient particulars as to the time and
place at which the offence is alleged to have been committed, the person (if any) against whom
and the property (if any) in respect of which the offence is alleged to have been committed,
should be furnished in the charge.

4. The correction of defects in the charge sheet

We will highlight two important methods of correcting omissions and errors in charges by
means of a discussion of sections 86 and 88. The connection between these two sections will
be immediately apparent: errors not rectified by section 86 may be corrected by evidence in
terms of section 88. The difference between the two lies in the fact that certain errors or
defects in charge sheets may be corrected automatically in terms of section 88, while errors or
defects brought to the attention of the court, or noticed by the court itself, cancel the automatic
effect of section 88 and must be amended by the court in terms of section 86.

5. The essence of the splitting of charges and the duplication of convictions

Section 83 gives the prosecutor the authority to charge the accused with all the offences that
may be substantiated by the evidence. Some of the offences with which the accused is charged
may therefore overlap, which may give rise to a duplication of convictions. However, the
possibility of duplication is less potentially harmful in the formulation of the charges in the
charge sheet to which the accused must plead than at the end of the trial. Hence, at the
beginning of the trial, the court is unlikely to find that, because of a splitting of charges, the state
may not continue with all the alleged charges. However, it is incumbent on the court to ensure
that no duplication of convictions occurs where multiple charges are brought against the
accused. The reason for this is simply that the consequences of duplication may be gravely
prejudicial to the accused when it comes to sentencing and the consideration of previous
convictions.

6. How several accused be charged together

The joinder of offences and the charging of more than one accused on one charge sheet are
dealt with in 12 of the textbook. This should not cause you any problems, since no complex
principles are involved. Also see s 156 of the Criminal Procedure Act, which provides that
persons committing separate offences at the same time and at the same place may be tried
together. The reason is to avoid successive trials involving different accused but the trials are
based essentially on the same evidence.
ACTIVITIES AND FEEDBACK

Question 1

X is charged with driving a vehicle recklessly. After X has pleaded at the trial, it turns out that the
prosecutor failed to mention an important element of the offence in the charge sheet, viz. that it
took place on a public road. How can the prosecutor correct this oversight?

Question 2

Tabulate the differences between a charge sheet and an indictment. Pay specific attention to
how both are used to commence proceedings, how they are brought to the attention of the
accused, and the difference in composition and content.

FEEDBACK

Question 1

See par. 2.2 of chapter 12 of the prescribed textbook

Question 2

See paras. 1.2 - 1.3 of chapter 12 of the prescribed textbook

12.LEARNING UNIT 12

Arraignment and plea of the accused:

(Chapter 14 of the textbook)

ORIENTATION

Once you have studied this learning unit of the study guide, you should be able to solve
problems related to a practical set of facts on any of the following matters, or to discuss any of
the following concepts:

• identify the instances in which an accused is not required to plead

• the different pleas that an accused may offer, as well as their associated rules and
principles

• the specific role of the presiding officer in plea proceedings

• traditional and statutory plea bargaining

LEARNING OUTCOMES

After you have finished studying this learning unit, you should be able to:

• understand the concept of “arraignment”.

• Identify instances in which a plea may be dispensed with.

• Enumerate the elements of each plea in section 106, as well as those provided for
outside of the Criminal Procedure Act.
 • Identify the differences between traditional and statutory plea bargaining.

• Apply the above principles to a given set of facts in which you are required to advise
a client.

Introduction

The term ‘arraignment’ essentially entails the process of bringing of the accused to court. The
concept of arraignment entails the plea proceedings in terms of which the accused is required
to tender a plea to the charges, as a precursor to the actual criminal proceedings. As will be
seen when going through the main content of chapter 14, the accused plea tendered by an
accused is not necessarily as simple as may assumed at first sight.

2. Instances where a plea may be dispensed with

In practice, the most simplified pleas which an accused may tender to a court are ‘guilty’ or ’not
guilty’. However, the accused may, through certain words or actions, lead to the court
somewhat dispensing with the normal plea.

3. The different pleas in terms of section 106 of the CPA

Section 106 set out the most common pleas which may be pleaded by an accused during the
criminal proceedings. Notably, an accused may tender two or three pleas together.

4. Plea Bargaining

At the concept of plea bargaining between the prosecution and the defence has always been
recognised by South African common law. Section 105A of the CPA introduces statutory plea
bargaining which, unlike, its traditional counterpart, involves a formal and formalised system of
plea bargaining, which involves the prosecution, defence and the court as part of the mix.

ACTIVITIES AND FEEDBACK

ACTIVITY

Question 1

List the different pleas that may be raised by the accused.

Question 2

List the fundamental differences between traditional and statutory plea bargaining

FEEDBACK

Question 1

See par. 4.1 – 4.11 of chapter 14

Question 2

See par. 3 of chapter 14

13.LEARNING UNIT 13

THE COURT AND MATTERS RELATING TO TRIAL

(Chapters 13 and 15 of the textbook)

ORIENTATION

Once you have studied this learning unit of the study guide, you should be able to solve
problems related to a practical set of facts on any of the following matters, or to discuss any of
the following concepts:

• The principles of trial fairness as they emanate by the trier-of-fact

• The role of assessors in criminal proceedings

• Access to a public trial and the restrictions thereto

• The nature and content of the accused’s right to a speedy trial with reference to the
relevant constitutional provisions and the court’s authority to postpone a criminal case

LEARNING OUTCOMES

After you have finished studying this learning unit, you should be able to:

• Provide an overview of the rights and duties of assessors.

• Discuss the recusal of triers-of-fact in the context relevant case law.

• Provide a brief explanation of the term “impartiality and fairness”.

• Discuss the circumstances under which “open justice” should take place.

• Determine the requirements for a postponement and adjournment.

• Discuss the concept and objectives of a speedy trial in the light of section 342A.

1. Introduction

Trial fairness is one of the most important principles endorsed by the Constitution. By like token,
it is important and crucial that trial proceedings should take place in an environment which is
conducive to fairness. To this extent, the trier-of-fact (the presiding officer or the assessors)
must be held to a high standard of objectivity which leaves no doubt that the accused has
received a fair trial. The right to a fair trial is also buttressed by the concept of open justice
which ensures that ordinary members of the public are able to observe the trial unhindered, so
that justice is not only done, but is also seen to be done.

2. Composition of the court

Normally, a criminal court consists of a presiding judicial officer, who may be a magistrate,
regional magistrate or judge, who sits on the bench with or without assessors (in other words,
who tries criminal cases). In certain circumstances, it is desirable and even compulsory for the
judicial officer to obtain the assistance of other persons so that justice is seen to be done fairly,
and also to allow the community to participate in the legal process.

The position of assessors in the lower courts differs materially from that of assessors in the High
Courts. Lay persons from the community who have no legal knowledge or experience, as well as
persons with certain skills, are appointed from a list of assessors drawn from the community
and appointed to assist the court (in the ordinary course of events, however, the assessors are
qualified in a particular field relevant to the matter). Assessors may only adjudicate on certain
aspects of the case.

3. Impartiality and fairness of presiding judicial officers IM

PARTIALITY AND FAIRNESS OF PRESIDING JUDICIAL OFFICERS

Chapter 13 covers a number of issues concerning justice in a criminal trial. The impartiality and
fairness and the recusal of the presiding officer and the assessor are of particular importance.
The relevant principles are simple and must be studied thoroughly, keeping in mind sections 9,

34 and 35(3) and (l) of the Constitution at all times. Note that the principle of justice
applies to both parties and that the judicial officer must endeavour to remedy deficiencies in
either party’s case by making recommendations on what evidence is lacking or by securing or
calling for evidence on his own initiative.

4. Public trial IN AN ORDINARY COURT

A public trial means that, as a general rule, the public has access to and may attend it. An
accused’s right to a public trial is recognised in section 35(3) (c) of the Constitution. However,
provision has been made for members of the public to be excluded from a public trial in certain
restricted circumstances. These exceptions to the general rule are discussed in the first part of
chapter 15. Note, in particular, the provisions concerning child offenders and witnesses who
are tried or testify in camera.

5. Witnesses

Witnesses play an important part in criminal trials because they assist the courts in arriving at
the truth. Consequently, provision has been made to secure the attendance of witnesses to
testify at trials, whether for the state or the defence or at the request of the court.

6. Adjournment and postponement of proceedings PRINCIPLES UNDERLYING THE

POSTPONEMENT OF A TRIAL

The trial of an accused does not usually commence at his first appearance in court. The case
against the accused is first investigated by the police. In fact, it may even be necessary to
continue with the investigation after the accused has been in court several times. If this is the
case, the prosecutor will ask the court to postpone the case for further investigation. Not all
postponements are granted at the request of the prosecutor, however. Sometimes the accused
or his legal representative may request that the court postpone the case to enable him to
prepare for the trial. According to section 168, it is within the discretion of the court to grant a
postponement. This discretion must be exercised judicially.
7. Speedy trial

Chapter 15 concludes with a discussion of the principles underlying an accused’s

constitutional right to a speedy trial. The objectives inherent in the principle of a speedy trial are
to prevent prolonged pre-trial detention in a prison, to limit the accused’s fears and tension, and
to set limits on the possibility of the defence’s being disadvantaged by unreasonable delays.
Section 342A authorises the court to investigate unreasonable delays by the state or the
accused and his defence, and it may even authorise a permanent cessation (stay) of further
proceedings against the accused.

ACTVITIES AND FEEDBACK

ACTIVITY

Question 1

X stands trial in a High Court on a charge of murder. He is tried by a judge, who is assisted by
two assessors. After the closing of X’s case, it becomes apparent that members of the court do
not agree on the finding. Discuss the legal principles concerned.

Question 2

What are the principles that a court must take into account in considering the granting of a
postponement? Discuss

FEEDBACK

Question 1

See par. 2 of chapter 13.

Question 2

See par. 5 of chapter 15.

15.LEARNING UNIT 14

The conduct of the trial

(Chapters 16-17 of the textbook)

ORIENTATION

Once you have studied this learning unit of the study guide, you should be able to solve
problems related to a practical set of facts on any of the following matters, or to discuss any of
the following concepts:

• the grounds on which a separation of trials may be requested under common law
and the Criminal Procedure Act, and by whom and at what stage of the trial it may be
requested

• the procedure pertaining to joinder of persons charged separately

• describe what rights the parties may exercise during a trial

 • identify the role and duties of the presiding officer at the conclusion of the state’s
case

• discuss the manner and sequence in which the state and the defence present their
cases to the court

• discuss the principles on which the acquittal of the accused is based after closure
of the state’s case

• indicate the basic nature and content of evidence-in-chief, cross-examination and

re-examination

LEARNING OUTCOMES

After you have finished studying this learning unit, you should be able to:

Discuss the joinder and separation of persons implicated in the same offence.

• Provide an overview of sections 155 and 157 of the Criminal Procedure Act.

• Discuss the different stages of the criminal trial .

1. Introduction

The prosecution, as dominus litis (master of the proceedings) decides whether several accused
should be tried together in the same trial, or whether they should be tried separately. The
principles that must be considered in reaching this decision are discussed in chapter 16. After
the state has decided to charge several accused together, in certain circumstances an accused
may request that his trial be separated from the rest. The court may also order such a
separation on its own account (mero motu). In terms of the Criminal Procedure Act, joinder of
any other accused is possible any time before evidence is led.

The trial goes through different in terms of which each of the parties is granted a fair opportunity
of presenting their case. Equally, the trial must observe certain basis principles. These aspects
are discussed in chapter 17.

2. The joinder and separation of trials

The joinder or separation of trials is a measure which is ordinarily implemented for practical
reasons. In other words, where perpetrators commit the same offence at the same time, it
makes logical sense to charge them in the same proceeding to avoid unnecessary costs and
inconveniences. Equally, it may become necessary to separate the trial where more than one
accused person is involved.

3. The course of criminal proceedings

The criminal trial takes place in a particular sequence, which accords each party the
opportunity to present its case in a fair and equitable manner. The sequence of the proceeding
is underwritten by a somewhat rigid regulatory process, in terms of which the roles of the
presiding officer, prosecutor and defence are clearly defined.

ACTIVITY AND FEEDBACK

Question 1
X and Y are charged jointly with theft. X pleads guilty and Y not guilty. Y applies to the court for
his trial to be separated from that of X because he wants to call X as a witness. X intimates that
he does not want to testify for Y. Discuss the relevant legal principles.

Question 2

Discuss the circumstances under which a discharge in terms of section 174 of the CPA must be
considered by the court.

FEEDBACK

Question 1

See par. 6 of chapter 16 of the prescribed textbook

Question 2

See par. 4 of chapter 17 of the prescribed textbook

14.LEARNING UNIT 15

The Verdict and Sentencing Stage

(Chapters 18 and 19 of the textbook)

ORIENTATION

Once you have studied this learning unit of the study guide, you should be able to solve
problems related to a practical set of facts on any of the following matters, or to discuss any of
the following concepts:

• indicate what impact authorised verdicts have on the role of the court and the
judgment it passes with respect to the alleged offence

• indicate the various competent verdicts for the different charges

• indicate the circumstances in which a court may amend its own verdict

• discuss sentencing discretion in general

• discuss the pre-sentencing investigation

• discuss each of the different kinds of penalties that may be imposed

• discuss suspended and deferred sentences

• discuss compensation for damages and restitution

• analyse a set of facts and indicate whether the imposed sentence amounts to a
proper exercise of the court’s sentencing discretion

LEARNING OUTCOMES

After you have finished studying this learning unit, you should be able to:

• Discuss the reasonableness requirement in terms of the court’s delivery of

judgment
 • Discuss the nature and meaning of the term “competent verdict”.

• Provide examples of competent verdicts on specific charges.

• Discuss the court’s ability to amend its verdict.

• Discuss the court’s sentencing discretion.

• Discuss the pre-sentence investigation.

1. Introduction

After the prosecutor and the accused – or his legal representative – have addressed the court on
whether the accused should be found guilty or acquitted, the court must decide this question.
This is no easy task, with the presiding judicial officer often having to decide whether a
particular witness is credible or not, for example. It is therefore understandable that presiding
judicial officers sometimes prefer simply to postpone the trial in order to reanalyse every bit of
evidence before reaching a decision.

If an accused is acquitted the criminal process ends there. However, if the accused is found
guilty, the court is next tasked with imposing the most appropriate sentence. South African
courts enjoy a wide sentencing discretion. In other words, even within the confines of
regulation, the courts are still empowered to impose sentences which they deem fit.

2. The essence of verdicts

The court must, as a rule, ensure that a verdict is announced as soon as possible. A court is
authorised to amend its own verdicts only under certain circumstances and only if the
amendment is made within a reasonable period after the verdict was passed. The reason for
this is that a court cannot review its own verdict, except with regard to language errors or other
minor errors that do not change the essence of the verdict.

In terms of sections 256–270 of the CPA competent verdicts may be imposed in respect of
certain crimes. Competent verdicts are only possible if permitted by statutory provisions. To
convict an accused of housebreaking with the intention to steal is not a competent verdict on a
charge of robbery because neither s 260 nor s 270 of the Act, nor any other statutory provision,
allows housebreaking with the intention to steal as a competent verdict on a charge of robbery.

3. The sentencing process

If the accused is found guilty, the process reaches the sentencing phase, during which the court
faces the difficult task of determining a fitting sentence for the accused. In exercising this
discretion, the court must take a number of factors into account, including the jurisdiction of
the court, the kind of punishment, the maximum or minimum penalty that may be imposed by
law for a particular offence, the personal circumstances of the accused (first offender,
youthfulness, etc.), the interests of the community (how frequently the offence is committed),
and the crime itself (e.g. how serious it is, the circumstances under which it was committed).
The court must be merciful in exercising this discretion. When the court has reached a decision,
the presiding officer will impose the sentence.

4. Minimum or mandatory sentencing

The concept of minimum sentences was first introduced to South African law by the Criminal
Law Amendment Act 105 of 1997. The purpose of the Act is to punish serious crimes committed
by persons over 18 years of age with heavier and even mandatory penalties. Presiding officers
must warn an accused at the beginning of the trial of the gravity of mandatory sentences, and
must encourage them to retain legal counsel at state expense, if necessary, where this applies.

ACTIVITY AND FEEDBACK

Question 1

X assaults Y and then decides to take Y’s wallet. X is charged with robbery. Discuss which
verdicts could be considered competent verdicts in this case.

Question 2

Discuss the essence 51 of the Criminal Law Amendment Act 105 of 1997.

Feedback

Question 1

See par. 5 of chapter 18 of the prescribed textbook

Question 2

See par. 5.3 of chapter 19 of the prescribed textbook

16.LEARNING UNIT 16

THE POST-TRIAL PROCESS

(Chapter 20 – 22 of the prescribed textbook)

INTRODCUTION

This section comprises three parts for easy reading and reference. The first part will discuss
reviews which refers to the procedure to correct an irregularity in the criminal proceeding. The
second part will discuss appeals which refers to the procedure that an accused uses to
challenge the correctness of his or her conviction or sentence from a decision of the lower
court. The last part will discuss mercy, indemnity and free pardons which refers to the powers of
the executive authority.

LEGAL REMEDIES AFTER VERDICT AND SENTENCE

In the last three chapters of the textbook, we look at the procedures that are available to an
accused (and the prosecution) for an appeal to a court of appeal or a review against a decision,
order, sentence of the trial court, or procedure followed by or in the trial court.

Review is covered in chapter 20 of the textbook, and appeal, in chapter 21. Mercy, indemnity
and reopening of a concluded criminal case are discussed in the last chapter. Extending mercy
to convicted persons is the prerogative of the President of the RSA and cannot be claimed.
Similarly, according to section 327, the reopening of a concluded criminal case after all legal
remedies have been exhausted, or if such remedies are not available, is at the discretion of
the Minister of Justice.

Although both appeal and review are inherently aimed at having a conviction and/or sentence
set aside, these two legal remedies differ in that review procedures are used to review irregular
or unlawful procedures or conduct within or outside the criminal proceedings, while an appeal
is directed against the conviction and/or sentence as reflected in the record of proceedings.
This means that appellants are limited in their appeals to evidence or procedure that appears ex
facie the record, while the review procedure encompasses more, and may even allow evidence
outside the record by way of sworn declarations.

Please note the specific provisions of the Child Justice Act regarding children of 18 years and
younger in respect of the review and appeal procedures. These are discussed in section C of
this guide.

PART 1

Review (Chapter 20 of the textbook)

OVERVIEW

FORMS OF REVIEW

This heading discusses the various types of review.

POWERS OF THE REVIEW COURT

This heading discusses how the extent of the court’s powers.

DECLARATORY ORDERS

This heading discusses how legal rights and constitutional rights can be protected.

ORIENTATION

Once you have studied this learning unit of the study guide, you should be able to solve
problems related to a practical set of facts on any of the following matters, or to discuss any of
the following concepts:

• determine whether the appropriate legal remedy in a practical scenario is that of review
or appeal

• indicate how review should take place if it is the appropriate method

• indicate the difference between the use of judicial review in terms of the Constitution
and the use of an ordinary review procedure

LEARNING OUTCOMES

After you have finished studying this learning unit, you should be able to:

· Distinguish between review and appeal.

· Discuss review in terms of the Criminal Procedure Act.

· Discuss automatic review.

· Discuss execution of sentence pending review.

· Discuss retrial where the conviction is set aside.

· Explain the term “declaratory order”.

1.1 FORMS OF REVIEW

Chapter 20 on review opens with a discussion of the constitutional aspects of review. This
section is important because it indicates the difference between a court’s ordinary powers of
review, compared with the much wider judicial, constitutional powers of superior courts. In
practice, you will often have to rely on this knowledge in order to give your clients the correct
procedural advice.

1.2 POWERS OF THE REVIEW COURT

If the review court has set aside a conviction and sentence, the question arises as to whether
the accused may be charged again. The answer to this can be found in section 313 of the
Criminal Procedure Act, with due regard to the principles of autrefois acquit.

1.3 DECLARATORY ORDERSDECLARATORY ORDERS

In order to establish legal rights, a declaratory order may be applied for. It is also possible to
request a declaratory order regarding constitutional rights – see section 21(1) (c) of the Superior
Courts Act. Section 173 of the Constitution (regulates inherent jurisdiction of the High Court) is
also applicable here.

COMPULSORY READING OR STUDY9.1

Read par. 1.1.1, 1.2, 3 - 4

Study par. 1.1.2, 2, 5 - 8

PART 2

The next part will discuss appeals.

Appeals (Chapter 21 of the prescribed textbook)

OVERVIEW

RIGHT OF APPEAL

This heading discusses how the accused can apply for leave to appeal to the higher courts.

APPEAL AGAINST SENTENCE, APPEAL AGAINST CONVICTION AND APPEAL ON LEGAL

GROUNDS

This heading discusses the manner of executing an appeal on different grounds.

WHO HAS LOCUS STANDI TO APPEAL TO THE HIGHER COURTS

This heading discusses who has the right to apply for leave to appeal a decision to the higher
courts.

THE POWERS OF THE APPEAL COURT

This heading discusses the court’s powers on hearing appeals and addressing irregularities.

RESERVATION OF A POINT OF LAW AND SPECIAL ENTRY

This heading discusses the remedies available in terms of an appeal procedure.

ORIENTATION

Once you have studied this chapter of the textbook, you should be able to solve problems
related to a practical set of facts on any of the following matters, or to discuss any of the
following concepts:

· Explain the legal basis to the right of appeal

· The circumstances under which appeal may be lodged

· The procedure relating to appeals

· Indicate the principal differences between an appeal on sentence and an appeal on

conviction

LEARNING OUTCOMES

After you have finished studying this learning unit, you should be able to:

· describe the appeal procedures available to the state in lower and higher courts

· explain the provisions relating to the powers of the appeal court to hear new evidence

· the processes relating to appeals in general

2.1 RIGHT OF APPEAL

The historical background provided in the textbook on this subject need only be read, not
studied. It is important, however, that you know the different ways of gaining access to appeal to
the higher courts, as well as the powers of each court to adjudicate constitutional matters.

2.1.1 Right of appeal versus application for leave to appeal

An application for leave to appeal must be lodged within a prescribed period, failing which
condonation for the late application must be requested before leave to appeal may be
requested. Condonation will be readily granted by the court if there is a reasonable prospect of
a successful appeal. An application for leave to appeal may be brought verbally in the lower and
higher courts directly after the verdict. The grounds on which leave to appeal is requested must
be recorded, regardless of whether the application serves before a lower or a higher court. If the
application for leave to appeal is refused, the appellant may address a petition to the Judge
President of the High Court within a specified period (if the application for leave to appeal has
been refused by a lower court), or to the President of the Supreme Court of Appeal (if the
application for leave to appeal has been refused by a High Court).

2.1.2 Right of appeal in constitutional matters

On the whole, lower courts have no jurisdiction to hear constitutional matters, but they may
certainly pronounce on the constitutionality of conduct that violates the constitutional rights of
another. If a constitutional matter that arose in a lower court is taken on appeal, the forum with
competent authority is the High Court, or the Constitutional Court.

The Constitutional Court may be approached directly in exceptional circumstances only. Leave
to appeal to the Constitutional Court on a constitutional matter must be requested from the
Constitutional Court. If the grounds of appeal arose in a lower or a higher court, an appeal may
be made directly to the Constitutional Court if the trial court certifies
(i) that it is in the interests of justice to appeal directly to the Constitutional Court

(ii) that it is believed, on reasonable grounds, that the Constitutional Court will grant leave to
appeal

This opinion is based on the following considerations:

(i) Are the constitutional points of dispute substantial?

(ii) Will any new evidence be required?

(iii) Is there a reasonable prospect that the decision of the lower or higher court will be set
aside?

2.2 APPEAL AGAINST SENTENCE, APPEAL AGAINST CONVICTION AND APPEAL ON LEGAL
GROUNDSPAAEAL AGAINST SENTENCE, APPEAL AGAINST CONVICTION AND APPEAL ON
LEGAL GROUNDS

Appeals against sentence

An appeal court will not readily intervene in the trial court’s exercise of discretion, provided that
the trial court has exercised its discretion properly. To that end, we can look at the following
three basic issues:

(i) Did the court have the jurisdiction to impose the sentence?

(ii) Did the court misdirect itself to the extent that it influenced the fairness of the trial?

(iii) Is the sentence so heavy that no reasonable court would have imposed it?

2.3 INCREASE IN SENTENCE – Note that the sentence may be increased on appeal. This might
happen at the request of the state, or the court might increase the sentence mero motu. It is a
rule of practice that the accused must be informed in advance that the court may consider
increasing the sentence.

2.3.1 Appeal against conviction based on facts

As in the case of an appeal against sentence, a court of appeal will not readily set aside the trial
court’s factual findings because the trial court was in a better position to judge the credibility of
witnesses.

2.3.2 Appeal against conviction based on legal grounds

The main consideration in evaluating whether a point of dispute is a legal or a factual issue lies
in the question of whether the court made its finding on the facts or the merits of the case, and
whether the court made its decision according to law on legal considerations (i.e. whether the
court was entitled to reach, or could have reached, such a decision). The first question covers a
factual issue and the second, a legal issue. Thus, it is a legal matter to decide whether the facts
before the court have proved the elements of the offence (such as intention or unlawfulness). To
answer this question, the court must evaluate the extent and nature of the elements of the
offence, which is essentially a legal matter. It is not always easy to distinguish a legal matter
from a factual matter. For example, to determine whether a confession is admissible, the court
must consider the facts as well as the law. The question whether the confession was made
voluntarily and without influence must be decided with reference to the facts of the case, but to
establish whether a statement is a confession or an admission is a legal question, because the
court must consider the requirements for both kinds of statement.

2.4 WHO HAS LOCUS STANDI TO APPEAL TO THE HIGHER COURTS

2.4.1 Locus standi to appeal to a High Court, a Full Court and the Supreme Court of Appeal

Any person who has been found guilty, or against whom an order has been made by the court, is
entitled to appeal to a higher court. In certain exceptional circumstances, persons are barred
from access to appeal to a higher court with respect to certain matters. The best-known case is
that of the fugitive convict.

2.4.2 Locus standi to appeal to the Constitutional Court

Sections 38 and 172 of the Constitution regulate the locus standi of persons with respect to an
appeal to the Constitutional Court. Note that access to this court is not limited to those who
have been found guilty and have been convicted, but it relates to a much wider group of persons
or classes of persons.

2.5 THE POWERS OF THE APPEAL COURT

You will notice that the powers of a High Court, a Full Court and the Supreme Court of Appeal
are essentially the same, although the authorising provisions differ. There are some differences
that you need to identify, however, such as those concerning the leading of further evidence.
Normally, the Supreme Court of Appeal will be disinclined to hear new evidence on its own
account, with the result that the case will usually be referred back to the High Court. The
considerations relating to the admission of further evidence are different. Whether further
evidence will be admitted on appeal from a lower court to a High Court depends mainly on
whether it is in the real interests of justice for a case that has been concluded to be reopened by
the submission of new evidence. However, the reopening of a case in the High Court in order to
lead further evidence on appeal must comply with the requirements provided in section 316 of
the Act.

COMPULSORY READING OR STUDY

Read: paragraphs 1.1 - 1.2, 2.5 - 3.

Study: paragraphs 1.3 – 1.12, 2.1 – 2.4

PART 3

The last part will discuss clemency and related powers.

Chapter 22 of the textbook: Mercy, indemnity and free pardon

OVERVIEW

GENERAL REMARKS

This heading discusses the powers of the executive authority to pardon and reprieve offenders,
and the effect of such powers.

ORIENTATION
Once you have studied this chapter of the textbook, you should be able to solve problems
related to a practical set of facts on any of the following matters, or to discuss any of the
following concepts:

· describe the constitutional, legal and common-law powers of the executive authority as
regards mercy and pardon.

· You should also be able to apply this knowledge to a set of facts

LEARNING OUTCOMES

After you have finished studying this learning unit, you should be able to:

· discuss the different presidential powers

· explain when expungement of criminal records may take place

· explain the instances when a case may be reopened

COMPULSORY READING OR STUDY

Study chapter 22 of the textbook (in toto)

GENERAL REMARKS

The Constitution empowers the President to pardon, reprieve offenders and to remit any fines,
penalties or forfeitures (see section 84 of the Constitution). Expunging a criminal record for a
conviction and subsequent sentence for an offence is an executive action. The effect is that the
convicted person has a clean record as far as the particular conviction and sentence is
concerned.

Although clemency and parole are both restorative in nature, they differ regards the effect of the
action. Parole is governed by the Correctional Services Act 111 of 1998 and the Criminal
Procedure Act. It ensures the release of a prisoner from a correctional facility which does not
lead to the expungement of his or her criminal record, and it can be revoked. Presidential
clemency comprises free pardon, reprieve and remitting of sentence. The effect of Presidential
clemency is that a conviction or sentence is expunged.

Refer to chapter 22 of the textbook for more detailed information.

ACTVITIES AND FEEDBACK

ACTIVITY

Answer the following questions once you have worked through this learning unit:

QUESTION 1

X is convicted in the district court on a charge of theft, and sentenced to 10 years imprisonment.
X is not happy about the manner in which the proceedings were conducted. His complaint is
centred around the perception that the conviction and the sentence were “unfair and… not
based on the evidence and the law”. He thereupon instructs his lawyer L, to “take all the
necessary steps to quash the conviction and the sentence”. L is instructed to pursue the matter
in the local regional court. Critically discuss X’s chances in line with his course of action.

QUESTION 2
B is undergoing a trial for murder in the regional court. During the proceedings, B begins to get
the impression that the magistrate, M, is, somewhat “biased” due to M’s refusal to allow him to
cross-examine one of the witness on the grounds that B is “wasting the court’s time”. B instructs
his lawyer L, to lodge an appeal. Critically discuss B’s course of action, and its prospects of
success.

QUESTION 3

Whilst trying to secure employment, D is alerted by a prospective employer about the existence
of a criminal record in respect of an offence which he committed in 1984, in terms of
the Internal Security Act 44 of 1950. D approaches you for advice on the legal position in this
regard.

FEEDBACK

QUESTION 1

(See chapter 21 of the prescribed textbook)

QUESTION 2

(See chapter 20 of the prescribed textbook)

QUESTION 3

(See chapter 22 of the prescribed textbook)