You are on page 1of 48

CRIMINAL PROCEDURE

INTRODUCTION: There are two types of criminal procedure systems:

accusatorial (SA) = prosecution and defence (dominos litus lord of litigation).


Judge does not get involved (he is unbiased and objective as he is not involved in the investigation
but he might not see/hear all the evidence which is inadmissible for some reason) .

Each party puts on the best case it can and picks on the weaknesses of the opponents case, then the judge decides who wins (but what if you cannot afford a good
lawyer?). (Malton = suspect arrested and jailed. The police went to where he lived and searched his room, without his permission. They received consent from the owner of the house. They found incriminating evidence, which later was inadmissible because it was obtained illegally lack of consent from the suspect)

inquisitorial (France) = judge questions and leads the case (dominos litus).
The SA government is introducing more inquisitorial elements into our system (eg: s115 of the Criminal
Procedure Act states that the magistrate can ask the accused why he has pled not guilty, even though the accused may remain silent) .

JURISDICTION: GENERAL: Section 165(1) of the Constitution = judicial authority is vested in the courts. Types of courts:

Constitutional court = highest court in all constitutional matters (can strike down legislation). If the law is illegal, it may be struck down (eg: death penalty).

Supreme Court of Appeal = highest court of appeal on any matter other than constitutional issues
(s4(1) of the Supreme Court Act 59 of 1959).

In practice, appeals are heard by 3 judges. Minister of Justice can ask the SCA to decide issues of law.

High courts = provincial and local divisions (s4 of the Supreme Court Act and s1 of the Criminal Procedure Act ). Magistrates courts = district (smaller) and regional (larger). All magistrate court decisions may be appealed to their provincial high court divisions (WLD is an exception can appeal to it even though it is a local court) but require a leave to appeal (s309 of the Crim Pro Act).

(1) MATTER of Jurisdiction: District Magistrates Court = can hear all crimes except: treason murder

rape (can hear attempted rape as it is a different crime)


Regional Magistrates Court = can hear all crimes except treason (s89 of the Mag Court Act).

High Court = can hear all crimes (has inherent/original jurisdiction no statute specifying what it can hear).

SCA = can only hear appeals (not a court of first instance).

(S v. Zuma = applicant challenged a section of the Criminal Procedure Act which provided that if you confessed in front of a magistrate, it was presumed that you did so freely and voluntarily the onus is on you to prove otherwise. The parties agree that the local high court would hear the matter, but the high court claimed that it was a constitutional matter, and therefore must be heard by the CC. The CC held that high courts have constitutional jurisdiction must hear the matter first, and only then can refer it to the CC)

(S v. M = district magistrates courts cannot hear rape cases. However, the court held that they can hear attempted rape cases, as attempted rape is a totally separate and different crime, and since it is not specifically excluded in the Magistrates Court Act, there is nothing stopping them from being able to hear such cases)

(2) TERRITORY of Jurisdiction:

District/regional Magistrates Court = all crimes committed in their area

(s90 of Mag Court Act)

and certain

exceptions, if the crime was committed: within 4km of the area;

on a journey in a vehicle and passed through the area (or within


4km of the area);

on a boat on a river and passed through the area (or within 4km
of the area);

in territorial waters of SA the district/region nearest may hear the case; begun in the district/region.

SA courts do not have jurisdiction over crimes committed on foreign soil (even if 4km away) but there are statutory exceptions: Aviation Act = Civil Aviation Act = can hear a crime committed on an airplane if the: accused is an SA citizen plane was in SA airspace plane is SA plane is owned by an SA citizen Special provision hijacker of a plane can be tried anywhere.

Merchant Shipping Act = can hear a crime committed on a ship if the: accused is an SA citizen ship is SA Special provision a pirate can be tried in any state.

Section 90 of the Magistrates Court Act = if several courts have jurisdiction, any one of them can hear the case.

Treason = usually committed outside of the country, but tried inside. Theft = continuing crime, and therefore the court wherever the accused goes will have jurisdiction. Section 111 of the Crim Pro Act = the National Director of Public Prosecution can order that a trial be held in a specific jurisdiction.

(S v. Makhutla = accuseds committed robbery close to SA borders, in Lesotho. The stolen goods were taken across, into our border, to Bloemfontein. They were tried in SA for robbery. The defence argued extraterritoriality principles offence not committed on SA soil, therefore cannot be tried in SA. The magistrates court dismissed this argument and, on a competent verdict (can be found guilty for a crime under the main charge, eg: theft under robbery), found the accuseds guilty of theft. However, the high court overturned this verdict holding that: there was no evidence that robbery is a crime in Lesotho no evidence that a robbery was actually committed)

(S v. Kruger = same facts. The court confirmed the extraterritoriality principle. However, it held that in bringing-in cases (stolen goods brought into the country), according to SA law, if the theft is committed in a foreign country, since it is a continuing crime, the perpetrator can be found guilty under the SA law of committing theft in SA dont apply foreign law of theft)

(R v. Moshesh = accused sent 8 parcels by rail from Bosothu. He received all 8, but the delivery slip reflected only 6 of the parcels. He therefore claimed from his insurance for the 2 parcels which he claimed were missing he sent the letter to Bosothu. He was tried in SA and found not guilty of fraud, as the court held that the misrepresentation only occurred at the opening of the letter, in Bosothu)

(R v. Holm: R v. Pienaar = accuseds went to an enemy country and broadcast propaganda into SA. They were charged in SA with treason. The accuseds argued that they committed the offence outside of SA and therefore the court had no jurisdiction. The court held that the broadcast agitated the air particles in SA, therefore treason was committed in SA. But treason is a special case, as it is almost always committed outside the country)

(R v. Masupe = Zimbabwean case. The accused broke into a house in a foreign country and brought the property into Zimbabwe. The Zimbabwean court held that it could not try him for house breaking, but can for theft (continuing crime)

(S v. Maseki = accused charged with possession of stolen property. The court confirmed that any offence can only be heard by the court in the area where such offence was committed. Beer stolen in Pretoria and taken across the border into Botswana. There was not enough evidence to prove theft, but there was enough to prove possession of stolen property (suspect that the property is stolen, and have no good reason for possessing it). The case could not be tried in SA as the offence was committed in a foreign country)

(3) SENTENCE of Jurisdiction:

Governed by precedent (previous cases). District Magistrates Court = max 3 years or R60 000 in fine. But some statutes extend this maximum. Can give periodical imprisonment of max 2 000 hours.

Regional Magistrates Court = max 15 years or R300 000 in fine. Minimum Sentence Act extends this max in certain circumstances.

High court = no limit, but follows precedent. SCA = limited to the sentence jurisdiction of the original court.

(S v. Makwanyane = courts no longer has the jurisdiction to give the death penalty)

AUTHORITY TO PROSECUTE: (1) PUBLIC PROSECUTION: Used to be a right to private vengeance, as no authority to punish on your behalf. Now we surrender this right to the state contractual duty to society. Section 179 of the Constitution created the National Prosecuting Authority (NPA): Single independent prosecuting authority. Headed by the national director of public prosecution (NDPP) appointed by the president (all other
official appointed under the NPA Act).

NDPP has the power to institute criminal proceedings on behalf of the state and determine (in
consultation with his deputies)

public prosecution policy (determines who will be prosecuted).

National legislation must be enacted to give effect to this NPA and NDPP the National Prosecuting Authority Act 32 of 1998.

Such legislation must ensure that the NPA exercises its powers/functions without fear, favour or prejudice (guarantees the independence of the NPA as suggested in the Certification case).

Prior to the Constitution, there were 6 national prosecuting authorities, led by attorney generals. The NPA Act repealed the Attorney-General Act. Section 6 of the NPA Act = hierarchy in the NPA: national director of public prosecution

deputy national directors of public prosecution (four for four provinces) directors of public prosecution (one in every high court) prosecutors (derive authority from the NDPP who delegates his powers to him) special prosecutors (section 38 have special expertise)
Section 12 = qualifications for officers: NDPP must be:

admitted attorney (can appear in any court)


fit and proper SA citizen NDPP holds office for a non-renewable period of 10 years and cannot be older than 65 years. President has the power to suspend him, pending a fitness inquiry for: misconduct

ill-health incapacity not fit and proper The president must report a decision to fire him to the parliament within 14 days, and then parliament, within 30 days, must either confirm or set aside this decision. If the president is unable to fire him, parliament can do so by a vote.

The Minister of Justice is responsible for the NPA (not control) cannot tell it what to do, but rather deals with the budget, salaries, etc NDPP must file a report every June with the Minister. The Minister can ask for special/specific reports.

Directors of public prosecution: Must have the same qualifications as the NDPP, but dont have to be SA citizens. Removed and suspended in the same manner. Must report themselves to the NDPP. Responsible for the day to day administration of the NPA. Section 24(2) = can ask the commissioner of police to investigate a matter.

Prosecutors = seek justice (not a conviction), independent and objective.

The NPA has the discretion not to prosecute all crimes. Generally, there is a 20 year prescription on all crimes, except: murder treason rape kidnapping child-stealing

aggravated robbery

Courts can prevent the prosecution from prosecuting a case however, rather not do so as it is up to the discretion of the NPA (separation of powers issue). Any bona fide decision to prosecute should not be questioned by the court. But male fide decisions can be reviewed by the court.

Should rather let go ahead and let the accused be acquitted. Limitation: section 342A where there is unreasonable delay in trials caused by the prosecution, the presiding officer can: investigate the matter and any prejudice suffered by the parties

strike the matter off the role, or make any other order it sees fit to remove the delay/prejudice (eg:
refuse to grant another postponement).

Trial commences once the accused pleads: If the postponement is requested before the trial commences, the prosecution can withdraw the case and later reapply.

If the postponement is requested once the trial begins and not is not granted, and as a result the prosecution lacks evidence, then the prosecution has to close the case (accused acquitted cannot be
tried for the same crime again).

The court can grant the postponement but on condition. Section 342A = if the court refuses to grant the postponement and the prosecution refuses to close the case, the court may proceeds as if the prosecution had closed it. Prosecution may be ordered to pay costs (not law yet).

(2) PRIVATE PROSECUTION: If the DPP has refused to prosecute the accused, then a private person can prosecute him.

The DPP must issue a nolle prosequi certificate indicating that he will not prosecute the accused. There are two types of private prosecutions:

(a)

Statutory (section 8):

Certain legislation gives certain legal bodies the right to prosecute (eg: municipality by the Municipal
Act).

That body must consult the DPP.

The DPP must withdraw his right to prosecute that offence (can set conditions eg: DPP must
approve the private prosecutor).

Prosecution must be in the name of the body.


(Claymore Court v. Durban City Council = case not brought in the name of the body prosecuting it. Defence objected, and the case was dismissed)

(b)

Individual (section 7): The person must have suffered a loss/damage and must have an interest in the case. Manner of prosecution: personally through a legal representative husband on behalf of his wife wife, child or next-of-kin if the damage/loss arose out of the deceaseds death guardian on behalf of his ward

Accused can argue that the prosecutor does not have sufficient interest in the matter interest is a matter of fact and law (eg: would you have a civil claim).

Residual right from the right of revenge gives expression to grief. Stops private vengeance.

Safety valve on corruption in prosecution.

Conducted in the name of the individual who must be precisely identified (section 10). Thereafter, proceedings will be exactly the same as public prosecution (section 12) but the accused cannot be arrested, only summoned to court.

Locus standi = need substantive interest in the matter, to prevent busy-bodies from prosecuting everyone (onus on the private prosecutor to prove interest).

(Barclays

If private prosecution is male fide, the court can prevent him from prosecuting (but rather let it
play out).

Zimbabwe Nominees v. Black = Barclays wanted to prosecute the accused. But section 7

states that any person can privately prosecute. Barclays argued that it was a juristic person. The court disagreed. It held that the Act is aimed at a natural person only)

(Makhanya v. Bailey NO = if contract terminated and paid out, cannot then sue for unfair dismissal. M was fired by B for union related activities, which is a criminal offence. But B had paid out the contract therefore M had no civil claim. The court held that even if the private individual doesnt have a civil claim, does not mean that he doesnt have the right to private prosecution. It held that as long as there is a clear indication of injury/loss)

(Philips v. Botha = private prosecutor owned a casino. The accused lost money at the casino, asked for more chips, paying for them with a cheque he later lost that money too and cancelled the cheque. The DPP wouldnt prosecute the accused, as gambling is illegal therefore the casino owner had no interest in the matter. The private prosecutor prosecuted the case privately and lost. The court held that the chips had no real monetary value therefore no loss)

(Van Deventer v. Reichenberg = R wanted to criminal prosecute a judge for acquitting a person defeating the ends of justice. The court prevented him from doing so as it was vexatious) (Philips v. Botha = court has power to prevent private prosecution. No interest/loss)

(Solomon v. Magistrate of Pretoria = accused submitted false documents to arbitrator. The other attorney found out and attempted to privately prosecute. The accused argued that he had no interest as he had accepted the arbitration award)

Steps to Private Prosecution: Certificate

3 months to prosecute or certificate lapse (section 7): issue summons

pay security R1 000 into court (section 9 in case he loses) (cannot issue summons without paying) (if he fails
to prosecute in time, forfeits the security).

If the private prosecutor fails to appear in court, the charges can be dismissed and the security is forfeited (unless failure beyond his control) (section 11).

Accused, on appearing in court, can request a reassessment of security.

If matter dismissed, cannot privately prosecute again although the DPP can still (section 11). Generally, the private prosecutor must pay his own costs (section 15), but if the accused is convicted, the accused may be forced to pay his costs (same with appeal) (section 15). Or the state might have to pay (for not prosecuting). If the private prosecutor loses, he might have to pay accuseds costs (section 16).

If accused pleads guilty, the DPP must take over the matter (section 12) and the DPP can intervene in a private prosecution at any time (section 13) (eg: realizes it is serious).

SECURING THE ATTENDANCE OF THE ACCUSED:

Attendant of the accused at trial may be secured by (section 38 of the Crim Pro Act): summons written notice to appear indictment arrest

Section 33 = arrest with warrant. Section 49 = use of force in effecting an arrest.

(S v. Gumbi = accused asleep in his house. Heard someone trying to break in. The accused beat the intruder to death and arrested for murder. Under the old code, could arrest with force, but not excessive force)

(S v. Mnanzana = test for excessive force is subjective) (S v. Nell = overruled the decision in Mnanzana test is objective)

(1) SUMMONS:

Used in lower courts where the accused is not in custody or about to be arrested (where he poses no risk of
escaping justice; influencing witnesses; etc).

He may later be arrested if it becomes clear that he will attempt to defeat the ends of justice. Procedure (section 54):

Prosecutor draws up the charge and hands it in, together with all relevant information about the accused (eg: name, address, occupation) to the clerk of the court.

Clerk issues a summons containing the charge and specifying the place, date and time for the appearance of the accused in court. Clerk hands the summons to a person empowered to serve a summons.

Summons is served on the person named therein or, if he cannot be found, on his residence, place of employment or business to a person apparently over the age of sixteen years and apparently residing or employment there (service must be at least 14 days before the trial date).

If the accused fails to appear in court on the date specified in the summons or remain in attendance, he is guilty of an offence punishable by a fine or imprisonment.

If the court is satisfied from the return of service that the summons was duly served and the accused failed to appear or remain in attendance, issue a warrant for his arrest (leaving the accused the option of paying a fine
in admission of guilt without having to appear in court)

an accused will not b arrested in terms of such a warrant where

it appears to the person executing the warrant that the accused: received the summons and that he will appear in court in accordance with a warning did not receive the summons or that the accused has paid an admission of guilt fine or that there are other grounds on which it appears that the failure of the accused to appear was not due to any fault on his part On the next court date after the arrest, the accused may answer as to why he failed to appear, and the court will decide whether to charge him with the offence.

(2) WRITTEN NOTICE TO APPEAR:

If a peace officer on reasonable grounds believes that a magistrates court, on convicting an accused of an offence, whether the accused is in custody or not, will not impose a fine exceeding the amount determined by the minister (currently R2 500), he may hand to the accused a written notice.

Such notice will specify the date, time and court the accused must appear in to defend the offence he is charged with, and give him the option of paying a fine and thus not having to appear in court (section 57). If he fails to respond to the written notice, a summons may be issued. Notice is prepared, issued and handed to the accused by a peace-officer, and always offers the option of a fine in admission of guilt.

(3) INDICTMENT: Indictment = document, in a superior court, containing: name of the director of public prosecutions charge against the accused

accuseds details (eg: name; address; sex; nationality; age)


summary of the facts of the case list of witness names

Must be served at least 10 days before trial date (served same as summons).

(4) ARREST:

Violates right to freedom of movement (section 12 of the Constitution) therefore strict rules on how to arrest. Generally, according to the Criminal Procedure Act, an arrest can only be effected after a warrant has been issued however, there are certain particular exceptions when an arrest does not require a warrant.

Onus to prove the lawfulness of the arrest rests on the arrestor or the person who ordered the arrest
(Minister of Law & Order v. Parker).

There are four main requirements for the lawful arrest and detention of a person:

arrest (with or without a warrant) must have been properly authorised (ie: statutory provision authorising it) arrestor must exercise physical control over the arrestee (ie: limit his movement unless he submits to custody).

arrestee must be informed of the reasons for his arrest (section 39 of Crim Pro Act, section 35 of the Constitution)
(may be informed at the time or after the arrest).

arrestee must be taken to the appropriate authorities as soon as possible (ie: police station or, in case of a
warrant, the place stipulated in the warrant) (section 50). (Christie v. Leachinsky = if arrested without a warrant, the suspect must be informed of the reasons for his arrest. Even if there was a warrant, need to provide reasons are it is still an infringement of his rights) (Macu v. Du Toit = appellant and accomplice caught stealing sheep on the plaintiffs farm. Two boys were instructed to arrest them. Must make it clear to the suspect that an arrest is being made. Here, the suspect knew of the attempt to arrest him. Force applied must be reasonably necessary. Here, the suspect was shot the court found that there was no lesser force that could have been applied to stop him)

(Gulyas v. Minister of Law and Order = foul language had been used over the telephone some distance away from the person who affected the arrest. The question was, was the offence committed where the words were uttered or heard? The court held that it was where they were uttered therefore the arrest was unlawful)

(a) Arrest With Warrant:

Issued (on any day) by a magistrate or justice of peace upon the written application of a: director of public prosecutions public prosecutor police officer

The application must: set out the offence alleged to have been committed

allege that such an offence was committed within the jurisdiction of such magistrate (if not, that the
accused is in the jurisdiction).

state that from information taken under oath, there is reasonable suspicion that the accused has committed the alleged offence Valid throughout the republic, regardless of where it was issued. Section 44 = arrest may be executed by a peace officer: magistrate

justice of the peace police official member of correctional services Section 39(2) = upon the demand of the arrestee, the arrestor must hand him a copy of the warrant.

(Minister van Veiligheid en Sekuriteit v. Rautenbach = if the arrestor is not in possession of the warrant and will not be able to furnish a copy, the arrest will be unlawful)

(b) Arrest Without Warrant: May be effected only in specific exceptional circumstances by a police officer or a private individual. Easier to do when the accused is caught in the act, and must have reasonable suspicion if he is simply suspected of having committed the offence.

Punitive arrests are illegal (ie: arrest simply to threaten or harass the accused). Section 40 = a peace officer may, without a warrant, arrest any person who: commits or attempts to commit any offence in his presence

he reasonably suspects of having committed an offence referred to in the first


schedule (very serious offences, other than the offence of escaping from lawful custody, which requires that
the arrestor know that this offence was committed) (suspicion, not certainty but the suspicion must be based on fact) (must be the peace officers suspicion not relying on someone elses). (Duncan v. Minister of Law and Order = reasonable suspicion requirement does not require that there be a prima facie case against the suspect. Not necessary that the officer acted with intention of bringing the accused before a court for prosecution (no clear reason for this). It is the suspicion that leads to the need to inquire further and then decide whether the case has merits)

Section 42 = a private person may, without a warrant, arrest any person who:

commits or attempts to commit, in his presence or whom he reasonably suspects of


having committed a first schedule offence (may be assisted by another private individual who is
informed of the suspicion).

any person whom he reasonably believes to have committed any offence and to be escaping from and to be hotly pursued by a person authorised to arrest
(R v. Van Heerden = accused charged with assault with intent to murder. Reasonable ground for suspicion under section 42 must be judged objectively reasonable man test)

Section 52 = confers special powers on certain officials to arrest without a warrant in certain circumstances (eg: officer of a society for the prevention of cruelty to animals may arrest without a warrant any person
reasonably suspected of having contravened a provision of the Animal Protection Act).

Section 178 = arrest may be made without a warrant by any judge/magistrate in whose presence the arrest is made (convenient).

Section 43 = lawful occupier or owner of a house may arrest owner can also authorise another to arrest. Section 47 = person between 16 and 60 years old may be called on by a police officer to help his arrest the suspect if fail to do so, guilty of an offence.

(c) After Arrest:

Section 50 = after arresting the suspect (with or without a warrant) he must be brought as soon as possible to the police station (or the place specified in the warrant), and informed of his right to bail, unless he is released before charges are brought. He must then be brought before a lower court as soon as possible, not later than 48 hours arrest unless a court date is unavailable.

If the arrest was unlawful, so is the detention. Interdictum de libero homine exhibendo = a person against whom an order has been made can appeal against such an order (in the case of unlawful detention, the detainee may
apply to the court for an order for his release).

The arrestor (with or without a warrant) further has the powers of:

placing objects found on the arrestee in safe custody general powers necessary for the purposes of effecting an arrest right to require third persons to assist in the arrest

(d) Resisting Arrest and Attempts to Flee:

As a general rule, force may not be used to effect an arrest especially if the accused submits himself to the arrest (section 12 of the Constitution right to freedom and security of person, including the right to be free from violence). Force may only be used when it is necessary to prevent the accused from resisting the arrest and attempting to flee.

Section 49(2) = when it has been made clear that an attempt to arrest is being made, and yet this cannot be done without the use of force (because the suspect is attempting to resist and/or flee), the arrestor
(anyone authorised eg: police officer; private individual)

may use such force as may be reasonably

necessary and proportional in the circumstances can use deadly force if justified, only if the arrestor believes on reasonable grounds that: the force is immediately necessary for the purposes of protecting himself or any other person from imminent or future death or grievous bodily harm there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm
(Matlou v. Makhubedu = court held that the degree of force used should be proportional to the seriousness of the offence in respect of which the attempt is made to arrest the suspect)

(Govender v. Minister of Safety and Security = court held that in light of the Constitution, the proportionality test referred to in Matlou is too narrow and should not only refer to the seriousness of the offence, but should actually refer to all the circumstances in which the force is being used. This is a rational way of balancing the interests of the state, society, police involved and the suspect. Must consider factors such as: whether the suspect is armed, poses a threat to the arrestor or another person, is known and can easily be apprehended at a later stage)

(Ex Parte: Minister of Safety and Security: In Re S v. Walters = the old section 49(2) provided that the killing of a person who is to be arrested for an offence referred to in the first schedule but who could not be arrested or be prevented from fleeing by other means than by killing him would be deemed to be justifiable homicide. The CC in this case declared this section to be unconstitutional and it has since been repealed and replaced by the new section 49(2) (above). The court also covered the point that an arrest can never be used to punish a suspect. It stated that force may only be used where it is necessary for the carrying out of the arrest, and where it is necessary, only the least degree of force reasonably necessary may be used proportional to all the circumstances of the situation. Shooting the suspect is only permitted in limited circumstance where he poses a serious danger Covers most of the requirements for the use of force)

(R v. Britz and S v. Swanepoel = if an accused has killed another and claims the protection afforded by section 49, the onus is upon him to show on a balance of probabilities that the requirements of this section were complied with)

Requirements for the use of force: suspect has committed, or there is reasonable suspicion that he has committed an offence arrestor is lawfully authorised to arrest

arrestor must first attempt to arrest the suspect (eg: inform him that he is making an arrest)
arrestor has intention of arresting and not punishing the suspect suspect attempts to resist arrest or flee

there are no other, less invasive means, of effecting the arrest (depends on the circumstances of each case) the force used must be directed at the suspect only (eg: if the suspect is in a car with other innocent people, the
arrestor cannot shoot liberally at the car).

degree of force used must be reasonably necessary and proportional in all circumstances
(S v. Barnard = the court held that the arrestor must make it clear to the suspect that he intends and is attempting to arrest him cannot simply assume that the suspect knows)

Attempt or actual escape from lawful custody is a punishable offence.

ENTRY, SEARCH AND SEIZURE: Constitutional rights which protect people and their property: section 14 = right to privacy section 12 = freedom and security of person section 35(5) = any evidence illegally obtained in violation of these rights must be excluded, if the admission of the evidence would render the trial unfair or throw the administration of justice into disrepute

There are many acts authorizing search and seizure (eg: Criminal Procedure Act; Animal Protection Act; Investigation of
Serious Economic Offences Act).

Any search violates your Constitutional rights, but some searches are allowed because of the limitation under section 36 (however, must be strictly interpreted in order to violate as little as possible).

(Park Ross v. Director of Serious Economic Offences = judge set out ground rules on what makes a search fair. In this case, the grounds in the Investigation of Serious Economic Offences Act were found to be too broad)

Search = when something is concealed a private individual may seize an illegal item if he sees it, but he may not search a person for such an item.

(1) SEARCH and SEIZURE PROVISIONS: Section 20:

The state can seize any article which is/was/might be used in the commission of an offence
(objective test),

or any article which is evidence of an offence (section 20 articles articles which may be seized

because they are connected to a crime).

Cannot seize privileged documents (eg: client attorney privilege).

Section 21:

Default/normal situation (but barely applied in practice). A section 20 article may only be seized by a search warrant issued by a magistrate/justice (anyone
appointed by the Justice of the Peace Act and the commissioner of police),

after the police officer, under oath, swears

that he suspects the offence on objective grounds. A magistrate/judge, during a trial, may issue such a warrant if he suspects that the section 20 article is in the possession or on the premises of the person, and is necessary for the trial. If authorized to seize, then authorized to search. Can only search during the day, unless specifically authorized by the warrant.

The warrant must specify the purpose of the search (eg: what expect to find; if possible state offence suspected).

Section 22: A police officer can search for section 20 articles without a warrant when he:

has the consent of the person he is searching (free, voluntary and informed)
(S v. Motloutsi = a group robbed a bank. There was a shoot-out, and the money the group stole was covered with blood. M hid his share in speakers in his room, which he was renting in a house. Police officers went to search his room, and the owner of the house consented to this. The court held that the police require the consent of the person authorized to give it)

believes that a section 20 article warrant would have been granted by the magistrates had
he asked for it, and a delay in obtaining such a warrant would defeat the object of the search (reasonable suspicion of the commission of an offence).

Reasonable suspicion the Criminal Procedure Handbook suspicion will be reasonable if:

the police officer actually believes/suspects that (subjective)


belief is based on fact from these facts can be drawn an inference

inference is reasonable (reasonable person would make the same inference factual question)
Section 23: on him. If the arresting person is not a peace officer, he cannot search the arrested person, but he can seize articles, if not concealed. Section 25: Repeats the rules that apply to search and seizure. Adds that this can be done when a person is suspected of undermining internal security of the state.
(Wolpe v. Officer Commanding SA Police = led to the enactment of section 25, as the judge stated that the powers of the police in matters concerning internal security must be more clearly defined)

A peace officer can search an arrested person, and seize any section 20 article found

(2) ENTRY: Section 48: Anyone who is authorised to arrest, after first requesting to enter, may break in and enter, search and seize the premises. If authorised to arrest, dont need a warrant to search and seize. Section 24:

The owner/occupier of premises can enter and search such premises, if he reasonably believes that there is stolen stock/produce on the premises, or any violation of any liquor/drug/explosives/fire arms laws but only if a police officer is not readily available. If any such articles are found, the owner/occupier may take possession of them and hand them over to a police officer. Section 26: A police officer may enter premises without a warrant when investigating a crime, if he suspects that a person who has information about the crime is on the premises only if he simply wants to question him and acquire a statement. But the officer may not enter a private dwelling without the consent of the owner. Section 27: A police officer may use force when executing a warrant or legal search, where the person resists. Must first demand and be refused entry. Does not need to request entry if he believes that this would defeat the object of the search.
(S v. Boshoff = the Immorality Act stated that it was illegal to have interracial sex. Someone suspected that a white woman was having sex with an Indian man and they reported this to the police. Several police officers staked out the womans home, and noticed that a dark skinned man continuously came and went. They therefore used section 27 to enter the house. The court found that the search was unlawful. The dark skinned man had an ID which stated that he was white, and the couple were never caught in the act. However, the court found that the police officers suspicion was reasonable erroneous but genuine and reasonable)

Section 29: A search will be conducted in a decent and orderly manner. A woman must be searched by a female officer, or any woman if a female officer is unavailable.

The warrant should specify and name the police officer authorised to search (Smit v. Lourens cannot
address the warrant to all police officers).

(3) DISPOSAL OF SEIZED GOODS: While the accused is in custody: Section 30 = if the section 20 article is perishable, the officer may dispose of it, taking into account the rights of those parties concerned.

Section 30(b) = if the article is suspected to be stolen, the officer must return the article to the person from whom it was stolen (owner), with the consent of the thief (need to ask
because if he is later acquitted, the property would have to be returned) (the owner must keep the article available).

Section 30(c) = if not stolen or perishable, the officer must mark the article and keep it available for evidence (if he has doubt to whom the items belong) (default section).

No prosecution follows:

Section 31(1)(a) = if no prosecution follows, the article must be returned to the person from whom it was seized, if such a person may lawfully possess such article (eg: dugga cannot
be returned; unauthorised firearm)

onus to prove unlawful possession is born by the

state (Datnis Minister Van Wet and Erasmus v. Minister Van Wet). Section 31(1)(b) = if the article is not returned to anyone, it is forfeited to the state. Once prosecution follows: Section 34(1) = if prosecution follows, the judge shall make an order of disposal: article be returned to person from whom it was seized if he may not lawfully possess it, to anyone else who may possess it if no-one, it must be forfeited to the state Section 35(1) = court which convicts an accused may declare that any article/weapon/instrument by means of which the offence was committed be forfeited to the state. Section 35(b) = any vehicle/container or other article used to convey stolen property will be forfeited to the state.

Section 35(4) = if the owner of the vehicle/article didnt know that it was being used to commit an offence, he may recover it, within 3 years of the forfeiture order.

BAIL:

Made by an oral application when appearing in court (following arrest).

Bail application is an enquiry (not a trial) the magistrate can: call witnesses hear evidence has discretion

No strict onus just a test of what is in the interests of justice. Constitution, section 35(3)(h) = an accused is presumed innocent until proven guilty. Therefore bail is a compromise between the accuseds total right to freedom and his incarceration.

Section 35 of the Constitution guarantees a right to apply for bail, if in the interests of justice
needs to keep his job; search for evidence; consult with attorneys).

(the accused

Generally, the accused should not be denied bail (but still up to the court) (being able to withhold bail is open to abuse by
police as a way of getting a confession).

The magistrate granting bail must be: independent impartial

HISTORY: Bail was seen as an application by the accused results:

onus on the accused to prove why he should get bail

no-one had to inform the accused that he could apply for bail (didnt ask, didnt get).

Section 50 = once arrested, must be brought to court as soon as possible, within 48 hours, to challenge your detention. However, there was no after-hours bail. Later, this section was interpreted as meaning that cannot hold longer than 48 hours without bail even after-hours.

1994 Constitution introduced the right to liberty when a right is taken away, the onus is on the state to prove why.

This was too broad and therefore created problems therefore law as it is today (ie: bail more difficult to get). Now bail is not an application, it is an enquiry, with no particular onus on either party. Crimes categorised into schedules degrees of seriousness (almost impossible to get bail for very serious offences).

Also, on schedule 5 and 6 offences (very serious), the onus is on the accused to prove why he should get bail also for schedule 6 offences, must prove why should be let out of the cell to apply for bail. This too was harsh, therefore was challenged (S v. Dhlamini = several cases in one, all illustrating the problems with the new
laws).

Exceptions to the no after-hours bail:

police bail = section 59 authorises a senior police officer to grant bail for a minor offence (not offences
under part 2 and 3 of schedule 2).

prosecutor bail = section 59A authorises the local prosecutor to release an accused if a schedule
7 offence (public violence; culpable homicide; bestiality; arson; assault; house-breaking; robbery/theft under
R20 000; drug offences; fraud/forgery under R20 000).

Section 50(b) = should be advised immediately of the right to apply for bail.

Section 50(c) = if not charged, released if charged and not released on police/prosecutor bail, the arrestee shall be brought to court as soon as possible (not later than 48 hours after arrest) (if the
hours expire over the weekend/public holiday, then must be brought the next working day) .

If the suspect is injured and hospitalised and cannot be brought to court, the prosecutor of the court prosecuting him can apply for extended detention of the suspect (must produce a
medical certificate to prove this).

Section 50(4) = if the suspect is a minor, the arresting officer must inform his parents. Default position: no after-hours bail. Section 50(6)(b) = arrestee is not entitled to be brought to court after court hours (section 50(2) = courts hours are
between 9am and 4pm week days).

(1) Police bail:

Section 59 = authorises police to release the arrestee on police bail for minor offences (cannot get police bail for
schedule 2, part 2 or 3 offences)

granted by an officer ranked above a non-commissioned officer.

Can only be paid in cash (reasonable amount). High flight risk will get a higher bail. The officer cannot set any conditions on the police bail. Officer granting bail must consult with the arresting officer.

Section 59(2) = when appear in court, the bail granted will remain in force (magistrate can vary the amount).

(2) Prosecutor bail: For more serious offences schedule 7. Section 59A = prosecutor, in consultation with the investigating officer, may release the arrestee on prosecutor bail. This bail endures until first appearance in court, when the magistrate must consider the release and bail, and can:

confirm cancel vary the bail.

Prosecutor can set conditions on the bail (eg: not leave JHB; leave passport; report to the police station every day).

(3) Ordinary bail: In open court, between 9am and 4pm, monday to friday, within 48 hours of the arrest. Inherent conditions to any bail: appear in court on the specified date may not contract state witnesses

Section 60(1)(a) = accused can be released on bail if the interests of justice permit (section 35(1)(f) of the
Constitution).

No onus on either party, simply an inquisitorial test evidentiary burden on the state (not full onus, simply duty to
begin the state must give reasons why the accused should not be released).

Section 50(6) = the court can postpone a bail application for not more than seven days at a time if: court has insufficient information to reach a decision prosecution need more information

Section 60(1)(c) = if neither the accused nor the prosecutor raises the issue of bail, the court must. Most bail is negotiated with the prosecutor even before appearing in court. Section 60(1)(b) = the court may enquire in an informal manner into the facts in dispute (addressed by
attorney/accused)

for all bail, except for schedule 5 and 6 offences (full onus on the accused by

leading evidence under oath).

Section 60(11) = schedule 5 offence, accused bears the onus to prove why he should be granted bail.

On a schedule 6 offence, the accused must also prove that there are exceptional circumstances that justify the release. For schedule 5/6 offences, bail should be opposed by the state. Section 60(2)(d) = if the prosecutor does not oppose bail for a schedule 5/6 offence, the court will require that he place on record his reasons for this. The arrestee bears a duty to begin for a schedule 5/6 offence bail, and he must do so by bringing evidence under oath. The attorney should rather not put the accused on the stand, as he can then be cross-examined, and the record of that is admissible at trial. Section 60(3) = empowers the magistrate to call any evidence/witnesses he sees fit. Section 60(4) = grounds/factors which, if present, are evidence that it is not in the interests of justice to grant bail:

accused poses a danger (eg: charged with 36 counts of murder) (factors to consider in section 60(5). accused is a flight risk (factors to consider in section 50(6) accused is likely to intimidate witnesses or destroy evidence (factors to consider in
section 60(7).

accused undermines the proper functioning of the criminal justice system (factors to
consider in section 60(8).

release of the accused would disturb the public order (eg: public rioting) (factors to consider
in section 60(8A).

Section 60(9) = granting of bail is a balance between the interests of the accused and the interests of the community/state.

Section 60(10) = even if the state does not oppose bail, the court has a duty to consider those factors and the interests of justice, and then make a decision.

In a bail application, the accused can dispute the scheduling of his offence (eg: claim that it is a schedule 7 offence,
not a schedule 6 one).

Section 60(11) = the director of public prosecution can issue a certificate stating which schedule the offence with which the accused is being charged falls under, which serves as prima facie proof of the schedule of the offence.

Section 60(11B) = at the bail application, the accused is obliged to disclose any other previous convictions or pending charged against him. This evidence however, is excluded from the bail record which is admissible in the trial.

Section 60(11B)(c) = bail record becomes part of the trial record. Section 60(11B)(d) = it is a crime to lie about your previous criminal record.

Section 60(14) = the accused cannot get access to his docket (police file containing all the charges and evidence against
him)

unless the prosecutor agrees.

(S v. Dhlamini = there have been many criticisms to the new amendments to the Criminal Procedural Act regarding bail. However, in this case, the court rejected all such criticisms: Section 60(4) = criticised for violating the separation of powers principle, as the executive is prescribing when bail will be granted/refused. However, the court stated that this section simply assists the courts in reaching their decisions the grounds are suggestions, but the ultimate decision is in the discretion of the courts. Exceptional circumstances for bail application for schedule 6, is not vague and is a justifiable limitation of the accuseds rights against the background of our violent society. Using the bail record at trial is a violation of the right to silence, but the accused is not forced to give evidence at the bail hearing.

The court held that all the amendments were constitutional. The court defined interests of justice as meaning the interests of the whole country, which encompasses the interests of the accused thus protecting the accused is protecting the interests of justice. Otherwise, section 60(4) balances the accuseds interests against the communitys)

INDICTMENTS AND CHARGES: (1) LODGEMENT AND SERVICE OF INDICTMENT AND CHARGE SHEETS:

Section 32 of the Constitution = everyone has the right to access any information held by the state/another person which is required for the exercise of protection of any rights.

Application in criminal procedure accused:

entitled to access documents in the police file (Shabalala v. Attorney-General) unless refused in terms of
section 39 of the Promotion of Access to Information Act 2 of 2000 has the right to be informed of the charge with sufficient detail Indictment = prosecutions in the superior courts. Charge = prosecutions in the lower courts. Both are documents alleging that the accused is guilty of a specific crime and its details. Such sheets must be drawn up according to strict requirements (main: clearly state the charge against him Pillay). High courts: Director of public prosecutions must lodge an indictment with the registrar.

The indictment is in the name of the director, informing the court (section 144(1)/(2)): that the accused is charged with an offence date and place the offence took place certain personal particulars of the accused

details of the facts of the case (provided it will not prejudice the administration of justice) list of witnesses intended to testify (unless he believes they will be tampered with)
State is not bound to the facts in the indictment may bring contradictory evidence. Indictment and notice of trial must be served on the accused not less than 10 days before trial date. Magistrate courts:

Proceedings commence by lodging a charge sheet with the clerk (unless accused was summoned to appear in
court) (section 76).

Charge sheet not served on the accused but presented in court but may be examined by the accused at any stage of the criminal proceedings (section 80).

Where the accused is brought to court on: written notice/arrest = may be required to appear on very short notice

summons = this must be done not less than 14 days before trial date (section 54) (excluding
Sundays and public holidays).

(2) FORM AND SUBSTANCE: Necessary averments: Section 84 = must contain sufficient detail for the accused to be informed of the charge against him eg:

name of the offence (eg: murder) all the elements of such an offence (eg: intention; unlawfulness; killing of another person) time and place of the offence (if time is not essential to the offence, does not have to mentioned
or may be 3 months off and still valid section 92).

person/property against whom it was committed Any elements which are essential to proving the offence must be mentioned. Negative exceptions, exemptions, provisos, excuses or qualifications: Section 90 = not necessary for the state to specify statutory exceptions or provisos in terms whereof certain persons are exempt from the operation of a statutory provision.

Example: accused charged with the illegal possession of dagga the state does not have to prove that he was not authorised to possess it in terms of the Drugs and Drug Trafficking Act 140 of 1992, however the accused may then proves so as his defence.

Inclusion of unnecessary averments: Section 86 = if, during trial, it appears that any words or particulars in an indictment/charge are superfluous, an amendment may be made if it does not prejudice the accused. If an amendment is not made, it does not necessarily invalidate proceedings and may be ignored unless the court rules otherwise.

Obligation to provide particulars:

Section 87 = if the accused believes there are insufficient particulars in the indictment/charge to properly inform him of the offence, he may request further particulars from the prosecutor (even if it complied with all the requirements of the preceding sections, the court may still order further
particulars).

However, courts are generally reluctant to grant an order for further particulars.

Where a conviction is based on evidence not covered by the particulars supplied, the conviction may be set aside on review (eg: charge of negligent driving, the accused requests further particulars as to the manner in
which it is alleged he drive negligently, the prosecutor states that he failed to keep a proper look-out but later it is proved that he did keep a proper look-out but failed to apply his brakes, conviction cannot be made unless there was an amendment to the charge).

A conviction can also be set aside where the court refused an application for particulars and it appears on appeal that the accused had been prejudiced by such a refusal.

(3) DEFECT IN INDICTMENT/CHARGE CURED BY EVIDENCE: Before 1959, where an indictment/charge failed to mention an element which is crucial to proving a crime, even if such element was proved with evidence at the trial, no conviction could be made.

Section 88 amended this by providing that in such a case, the defect shall be cured by evidence at the trial proving the matter which should have been averred (if the charge is so defective that the accused is not certain of the
charge against him, he can always apply for further particulars or object to it).

However, certain factors should be kept in mind:

language of the indictment/charge should either specifically name the offence or specify the
section of statute it is contained in (if the section contains more than one offence, only the one mentioned in the language
of the indictment/charge will be used).

prosecutor should still take care in framing the indictment/charge in a manner which does disclose an offence else the accused can, before pleading, raise an exception against the charge Herschel stated that the accused can rely on any such defect in an appeal

Sarjoo cannot replace one offence by another offence proved by evidence (eg: substitution of jersey for
meat in a theft charge).

(4) CORRECTION OF ERRORS IN CHARGE: Section 86 = provides for the amendment of an indictment in the following situations where: it is defective for want of an essential averment there is a variance between the averment in the charge and the evidence offered in proof of such averment words have been omitted, or unnecessarily inserted, or any other error is made

Before 1959, if the indictment/charge disclosed no offence, it was fatally defective and could not be amended now that is no longer true (can be amended even if does not disclose an offence). Note the following points regarding amendments: court will only grant the amendment if it considers that this would not prejudice the accused in his defence

can only amend the charge, not replace it altogether section 88 will automatically cure the defect in the charge, unless the defect is brought to the attention of the court

(5) SPLITTING OF CHARGES:

One act of a person may constitute more than one offence (eg: rape of a 16 year old, is rape; common assault; connection
with a minor),

and a person can also commit more than one offence (eg: commits fraud over a period of 3 years; rapes and

then robs a woman).

Such an accused may be charged with all of the offences, but may not be convicted of all (may be charged of
having committed any/all of the offences, or in the alternative).

Courts have developed a rule against the splitting/duplication of charges (S v. Grobler stated that this actually refers to
the duplication of convictions, applying in the field of punishment).

Section 83 = where there is uncertainty about the facts which can be proved, or where it is doubtful which of several offences is constituted by the facts which can be proved, the state may formulate as many charges as the available facts justify however if at the end of the trial, according to the proven facts, two/more charges comprise one punishable fact, the court will convict the accused on one charge only.

The rule against the duplication of convictions is to be approached on the basis of the following possibilities: (a) Single act constitutes more than one statutory offence, or statutory and common law offences:

Section 336 = where one act constitutes an offence under two/more statutory provisions or a statutory and common law offence, the accused may only be held liable on one of the grounds (eg: incest with a 16 year old daughter can only be charged for incest or
sex with a minor).

This section applies only to where a single act results in several offences, one of which is a statutory offence. (b) Single act constitutes more than one offence at common law:

The same principle applies accused can only be convicted of one of the offences (eg: two
people killed in one road accident, one charge of culpable homicide but mentioning both deceaseds S v. Mampa).

(c) More than one act of the same/practically the same nature is committed practically simultaneously: Test is whether the acts were done with a single intent and part of one continuous transaction, or does the evidence required to prove the one charge necessarily involve proof of the other. Only one of the tests need to be proved if it is, then there is improper splitting.

Where the nature of the separate acts and the intent with which each act has been committed differ to such an extent that it is impossible to accommodate all the acts within one offence only, a conviction on multiple charges would not constitute improper duplication of convictions (eg: the accused rapes a woman and then steals her purse after) (S v. Grobler = accused
convicted of both drunken driving and culpable homicide, which resulted).

(d) Conduct is spread over a long period of time and amounts to a continuous repetition of the same offence:

As to whether such conduct should form the subject of one conviction only, the decisions of our courts are conflicting (eg: fraudulent practicing as a doctor, each time a patient is treated constitutes an
offence - however failing to report the presence of terrorists in the neighbourhood over a period of time is only one charge) .

(6) JOINDER OF OFFENCES/ACCUSEDS: The prosecutor usually charges the accused with the most serious crime as the main charge, and the lesser offences as alternative charges.

Section 81 = any number of offences may be charged against the same accused in one indictment the court may direct that the different charged be tried separately, if it is in its opinion that this will be in the interests of justice.

Section 155 = any number of participants or accessories after the fact in the same offence may be tried together.

Section 156 = when two/more persons are charged with having committed separate offences at the same time and place, and the prosecutor can convince the court that evidence which is admissible at the trial of the one would be admissible at the trial of the other, such accused may be tried jointly (this is not a requirement, simply permissive if one wishes to do so).

Section 157 = the replies to the questioning of an accused are not evidence therefore further accused can be joined after an accused has been questioned.

PLEAS: (1) ARRAIGNMENT:

Definition: the accused is called upon to appear in court, where he is informed of the charge against him, and is questioned as to how he pleads (where several accused, each one is addressed separately his charge read out) the plea must be noted.

A conviction may be set aside if the arraignment was done on such short notice that the accused did not have sufficient time to prepare a defence or seek legal representation.

Section 105 = the accused must be informed of the charge in open court and required to plead instantly thereto.

Section 85 = any objections to the indictment/charge must be made before the accused pleads.

(2) PLEA MAY BE DISPENSED WITH: An accuseds plea may be dispensed with when there is: (a) Refusal to plead: Section 109 = the court shall enter a plea of not guilty if the accused refused to plead or answer directly to the charge.

Where the accused bona fide refuses to plea, this section cannot be applied (eg: arraignment date
postponed, but then occurs before such date, the accused may refuse to plea until the original date) .

(b) Ambiguity in plea:

Where the accused does not make his plea clear (eg: not guilty but he attacked me first), the court should enter a plea of not guilty and then question the accused in terms of section 115 to ascertain what fats he is prepared to admit.

(c) Obstructive and rowdy behaviour: Section 159 = where an accused refuses to plead and behaves in a manner which obstructs the conduct of the proceedings, the court may order him to be removed and may direct the trial to proceed in his absence. (d) Mentally abnormal accused:

Sections 77/79 = where it appears that the accused does not understand the proceedings, an enquiry into his mental state should be made (examined by two/three doctors).

If the finding in the report is unanimous and is not disputed by either the prosecutor or the accused, the court may determine the matter without hearing further evidence (if it is, the court
must first hear further evidence before making a determination).

Where the accused is found mentally abnormal, the court may order that he be detained in a psychiatric hospital or prison. The accused may appeal the ruling either way. If the court finds that the accused was mentally ill during the commission of the crime, it must find him not guilty and declare him a state patient. (e) Objections to the charge: Section 85 = an accused may, before pleading object to the charge on the ground that the charge does not: comply with the provisions of this Act relating to the essentials of a charge set out an essential element of the relevant offence disclose an offence contain sufficient particulars of any matter alleged in the charge correctly name/describe the accused Reasonable notice must be given to the prosecution of such an intention.

If the court approves, it may order the prosecution to amend the charge or deliver particulars to the accused (where the prosecution fails to do so, the court may quash the charge).

(3) PLEA BARGAINING: Purpose: lessen the sentence for the accused, and relieve the state of the burden of proving all of the elements. There are two types of plea bargaining: (a) Traditional: This may occur in several situations:

plea to a lesser offence (competent verdict/alternative charge) is negotiated with the prosecutor
(eg: charge of murder, plea to culpable homicide)

plea to the charge, but on a different basis to that alleged (eg: charge of murder with dolus
directus, plea to murder with dolus eventualis).

accused may agree to plead guilty to an offence committed by himself and other accused, where he is the most guilty, in return for the withdrawal of charged against the rest of the accuseds accused may supply vital information to the investigating officer, which expedites and is necessary for the proper investigation of the case, in return for withdrawal of charges where the accused faces numerous charges, he may plead guilty to a few of them, in return for the withdrawal of the rest However the prosecutor and the defence cannot bind the court to a sentence may only suggest a lighter sentence. (b) Statutory:

Section 105A = essentially codifies the traditional plea bargaining practice, but in addition provides that: prosecutor can now also reach an agreement with the defence on the sentence to be imposed

prescribes certain mandatory formalities (eg: agreement must be in writing)


agreement must be entered into before the commencement of the trial only represented accused may negotiate judicial officer may not participate in negotiations court must be satisfied that the agreement is just If the court refuses the plea agreement, the prosecutor and defence may either agree to abide by the courts sentencing, or one may withdraw and the trial will have to start anew.

(4) POSSIBLE PLEAS: (a) Pleas mentioned in the Act: Section 106 = the accused may plead: guilty of the offence charged or of any one offence of which he may be convicted on the charge not guilty

already been convicted of the offence (autrefois convict) already been acquitted of the offence (autrefois acquit)
received a free pardon from the president the court has no jurisdiction to try the offence has been discharged from prosecution in terms of section 204 after giving satisfactory evidence for the state

prosecutor has no title to prosecute prosecution may not be resumed or instituted owing to an order by a court The section allows for two/more pleas to be pleaded together except for the plea of guilty which cannot be pleaded with any other plea to the same charge.

(b) Guilty: If pleads so, may be convicted there and then based on his plea. Section 112: Two situations: serious offence = court may, either on its own merit or request by the prosecutor, question the accused to ascertain for which allegations he admits liability, and if satisfied that he is guilty, convict and sentence him

less serious offence = court may convict and sentence the accused on his plea of guilty
only (where the offence would not merit imprisonment or any other form of detention without
the option of a fine, or a fine exceeding the amount determined by the Minister (R1 500).

The court must question the accused as it must first be satisfied that he fully understands all the elements of the charge when pleading guilty and that his answers reveal that he in fact committed the offence (S v. Tshumi and S v. Naidoo) (especially necessary where the accused is a minor, illiterate,
unrepresented etcS v. M).

The court, instead of questioning the accused, may accept a written statement from him, setting out the facts which he admits (but it may further question him on the statement) (a regurgitation of the charge
sheet is insufficient).

In determining the sentence, the court may hear evidence presented either by the prosecution or defence (not for determining conviction S v. Khumalo and S v. Quinta).

This section is intended to eliminate the need to present evidence.

It can also be applied not only before the trial commences, but he may also change his plea to one of guilty during the trial.

Co-accuseds should be questioned separately. An accused should be encouraged to tell his version (S v. Mkhize).

The prosecutor should give the court a brief summary of what the states case is (if the accused disputes the
details of the states case, the prosecutor will have to tender evidence to prove them).

Acceptance by the prosecution of the plea of guilty is unnecessary, unless the plea is not to the offence charged, but to a lesser offence.

Section 113 = where the court, at any stage of proceedings under section 112 and before a sentence is passed, believes that the accused: may not be guilty of the offence to which he has pleaded guilty does not admit an allegation in the charge has incorrectly admitted any such allegation has a valid defence to the charge

is not guilty of the offence charged, but he admits his guilt to a lesser offence (unless
the prosecution accepts the plea to the lesser charge).

plea of guilty should not stand for any other reason the court must record a plea of not guilty, and require the prosecutor to proceed with the prosecution (Chetty v. Cronje and S v. Mazwi) (Attorney-General, Transvaal v. Botha = court must have reasonable
doubt).

Allegations which the accused has made remain standing as proof of those allegations. The accused may, with leave of court by giving good reason (eg: plea induced by fear), withdraw his plea of guilty even after conviction but before sentencing (S v. Botha = the court should only refuse the withdrawal if it is convinced
beyond a reasonable doubt that it is false).

Section 114 = if a magistrates court, after conviction following on a plea of guilty but before sentencing, is of the opinion that: offence is of such a nature/magnitude that it merits punishment in excess of its jurisdiction accuseds previous convictions are such that the offence merits punishment in excess of its jurisdiction accused is a dangerous criminal the court shall stop the proceedings and commit the accused for sentence by a court having jurisdiction If that court rejects the guilty plea, it may enter a plea of not guilty and proceed with the trial.

(c) Not guilty:

Section 115 (plea explanation): Where the accused pleads not guilty, the court may:

ask him whether he wishes to make a statement indicating the basis for his defence (but he
does not have to S v. Mkhize) (this statement is not considered evidence under oath),

on which statement he

may then be questioned question him as to which allegations in the charge are in dispute The court may only question on the facts in the statement which are unclear to go beyond may be considered cross-examination and result in setting aside of the conviction and sentence. Where the accused is represented, the legal practitioner may act on his behalf in answering the questions, but the accused must declare whether he confirms the answers.

The court must inform the accused that he is not obliged to answer any questions, however, spontaneous admissions made immediately after the plea but before the accused has been warned of his right to remain silent, are admissible (S v. Shikongo).

The statement and questioning procedure of section 115 is intended on narrowing the burden of the state on what facts have to be proven once the accused admits an allegation and allows it to be recorded
(must first be informed of the effects of this and that he is not obliged to give his consent) ,

the state is alleviated of the burden of


(on grounds of eg:

having to prove it, but this does not prevent the accused from later rebutting the allegation
duress; mistake S v. Seleke).

Where the accused refuses to allow the admission of an allegation to be recorded, the court may still consider its evidential value in light of the evidence as a whole (S v. Sesetse = the accused may also be later crossexamined on the content of the statement where, for example, he later deviates from it as it may affect his credibility) .

Section 116 = a magistrates court, once having convicted the accused, may refer the case to a regional court for sentencing (same as section 114). Accused may at any time change his plead of not guilty to that of guilty, with leave of court, and then section 112 becomes applicable however, the prosecutors acceptance to a plea of guilty to a lesser offence will no longer bind the court (it may ignore it).

(d) Prior/autrefois conviction or acquittal: Autrefois convict: Principle: no person shall be punished more than once for the same offence section 35(3)(m) of the Constitution. Onus rests on the accused to prove that he had previously been convicted: of the same offence by a competent court

The court will consider the true essence of the previous offence and not technicalities in order to establish whether it is the same offence (sufficient even if substantially the same informal test).

Can also plead that the current charge is a lesser offence than that of which he had been convicted and could have been convicted on the previous charge (eg: previously convicted of murder, and now

charged with culpable homicide)

however, the opposite is not true (eg: convicted of assault, the victim later dies, and

now charged with murder cannot plea against that).

This plea is only available after the accused has been sentence at the first trial. Autrefois acquit: Principle: double jeopardy no person shall be harassed twice for the same cause. Onus rests on the accused to prove that he had previously been acquitted:

of the same offence (sufficient if substantially the same could have been convicted of the offence in the first trial).
by a competent court

upon the merits (not acquitted on a technicality S v. Moodie and S v. Naidoo).


If these requirements are proved, the accused is said to have stood in jeopardy. Can only rely on this plea if there was a trial/prosecution followed by an acquittal.

If acquitted of an offence, cannot be tried again for a lesser offence of that offence, as could have been convicted of such a lesser offence in the first trial (S v. Khoza = if he could have been tried in for it in the first
trial, he should have been and should not have to be tried separately again).

Test is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first indictment (S v. Kerr and S v. Ndou).

(e) Presidential pardon: Section 106 = accused may plead that he has received a pardon from the president, which he is empowered to do in terms of section 84 of the Constitution.

(f) Jurisdiction of the court:

Section 106 = the accused can plead that the court attempting to try him lacks jurisdiction to do so (eg:
offence was committed outside of the courts area of jurisdiction).

A plea of diplomatic immunity would also fall under this plea ground.

The accused may request for the matter to be removed to a competent courts but if he fails to request this, the verdict and judgment are valid.

(g) Order of court on an unreasonable delay in a trial:

Section 342A = the court must investigate any delay in the completion of proceedings which appears to it to be unreasonable and which could cause substantial prejudice to the prosecution, the accused, the state or a witness (must consider eg: duration/cause of the delay; its effects; adverse effects if the
prosecution is stopped).

If the accused has not yet pleaded, the case may be struck off the roll if he is tried again, he may raise this plea.

(h) Other possible pleas: Discharge from prosecution = granted to witnesses who agree to testify under the guarantee that if they answer frankly and honestly, they will not be charged with anything they might say which might incriminate them. Lack of authority of the prosecutor. Lis pendens = the matter is pending in another court.

(5) AFTER PLEADING: Section 106 = an accused who has pleaded to a charge is entitled to demand that he be acquitted or convicted. Exceptions where the accused is not entitled to an acquittal/conviction: magistrate has recused himself separation of trials takes place trial referred to a regional court

magistrate dies, resigns or is dismissed where it appears that the accused is before the wrong court court finds that the accused is mentally unable to stand trial

You might also like