(Ebook) Criminal Procedure Handbook 1st Edition by Dane Ally 1485133890 9781485133896

(Ebook) Criminal Procedure Handbook 1st Edition by Dane Ally 1485133890 9781485133896

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ISBN 10: 1485133890 
ISBN 13: 9781485133896
Author: Dane Ally

Criminal Procedure Handbook 1st Table of contents:

Part I Selected General Principles of the Law of Criminal Procedure
Chapter 1 A basic introduction to criminal procedure
1 Introduction
1.1 Criminal procedure: the distinction between substantive and adjectival law
1.2 Criminal procedure
1.2.1 Scope and content
1.2.2 Criminal procedure as component of the criminal justice system
1.3 The double-functional nature of some rules
2 Crime control and due process
2.1 The need to balance values
2.2 The internal tensions
2.3 Due process (legality, the rule of law) and the need to limit state power
2.4 Models based on conceptions of victims’ rights
2.5 The position of the victim in the criminal process
2.5.1 Victim participation
2.5.2 Victim protection
3 Constitutional criminal procedure
3.1 Introductory remarks
3.2 A survey of the contents of the Bill of Rights
3.3 Section 35 of the Constitution
3.4 The presumption of innocence
3.4.1 The presumption of innocence and legal guilt
3.4.2 The presumption of innocence as a statement of the prosecution’s burden of proof
3.4.3 The presumption of innocence and the nature of the alleged crime
3.5 The right to silence (including the privilege against self-incrimination)
4 Accusatorial and inquisitorial procedures and a brief history of South African criminal procedure
5 Sources of South African criminal procedure
5.1 Constitutional provisions
5.2 The Criminal Procedure Act 51 of 1977
5.3 Legislation other than the Act
5.3.1 The Child Justice Act 75 of 2008
5.3.2 Various other statutes
5.4 Common-law rules and case law
6 Remedies
6.1 The writ of habeas corpus (or the interdictum de libero homine exhibendo)
6.2 A civil action for damages
6.3 The interdict
6.4 Mandamus
6.5 The exclusionary rule
6.6 Informal remedies
6.7 Constitutional mechanisms
7 Remarks in conclusion
Learning aids and self-assessment
Quiz 1
Chapter 2 The criminal courts of the Republic
1 Introduction
2 The superior courts
2.1 The Constitutional Court
2.1.1 The composition of the Constitutional Court
2.1.2 Constitutional jurisdiction of the Constitutional Court
2.1.3 Appeal jurisdiction of the Constitutional Court
2.2 The Supreme Court of Appeal
2.2.1 Composition of the Supreme Court of Appeal
2.2.2 Constitutional jurisdiction of the Supreme Court of Appeal
2.2.3 Appeal jurisdiction of the Supreme Court of Appeal
2.3 The High Court of South Africa
2.3.1 Composition of the High Court of South Africa
2.3.2 Constitutional jurisdiction of the High Court of South Africa
2.3.3 Appeal and review jurisdiction of the High Court of South Africa
2.4 Circuit courts of a division
3 The lower courts
3.1 Magistrates’ courts
3.1.1 Composition of the lower courts
3.1.2 Constitutional and appeal jurisdiction
3.2 Other lower courts
4 Jurisdiction of criminal courts
4.1 Jurisdiction in respect of offences
4.1.1 The divisions of the High Court of South Africa
4.1.2 District courts
4.1.3 Regional courts
4.2 Jurisdiction and extended jurisdiction in respect of offences committed on South African territory
4.2.1 The divisions of the High Court of South Africa
4.2.2 District courts and regional courts
4.2.2.1 Summary trials
4.2.2.2 Preparatory examinations and preliminary enquiries
4.3 Jurisdiction in respect of offences committed outside South Africa
4.4 Jurisdiction with regard to sentencing
4.4.1 General
4.4.2 Divisions of the High Court of South Africa
4.4.3 Regional courts
4.4.4 District courts
4.5 Jurisdiction to pronounce upon the validity of laws or the conduct of the President
Learning aids and self-assessment
Quiz 2
Chapter 3 The prosecution of crime
1 Introduction
2 Public and private prosecutions
3 Criminal prosecutions and civil actions
4 Public prosecutions
4.1 The constitutional provisions and legislative framework
4.1.1 Constitutional provisions
4.1.2 The National Prosecuting Authority Act 32 of 1998
4.1.3 The professional independence of the prosecuting authority
4.1.4 Professional independence and private funding of the prosecution: the risk of an unfair trial
4.2 Structure and composition of the single national prosecuting authority
4.2.1 Investigating directorates
4.2.2 Appointment of special directors
4.3 The power to institute and conduct criminal proceedings (s 20(1) of Act 32 of 1998)
4.4 The authority and hierarchy of power to institute criminal proceedings
4.5 The national director of public prosecutions (NDPP) and the deputy national directors of public prosecutions (DNDPPs)
4.5.1 Appointment
4.5.2 The qualifications for appointment as NDPP or DNDPP
4.5.3 Term of office of the NDPP and a DNDPP
4.5.4 The NDPP and a DNDPP: suspension and removal from office
4.5.5 Powers, functions and duties of the NDPP and a DNDPP
4.5.6 Prosecution policy and issuing of policy directives
4.5.7 Accountability to Parliament
4.5.8 Ministerial responsibility over the prosecuting authority
4.5.9 Written authorisation of NDPP required for prosecution of certain offences
4.6 The directors of public prosecutions (DPPs)
4.6.1 Appointment, qualifications, term of and removal from office and accountability
4.6.2 Powers, duties and functions of a DPP and a DDPP
4.7 Prosecutors
4.7.1 Appointment
4.7.2 Powers, duties and functions of prosecutors
4.8 The prosecuting authority and the judiciary
4.9 Extraordinary powers of a DPP
4.10 Control over local prosecutors
4.11 The prosecution and the police
4.12 The prosecution, the police, the public and the reporting of crime
4.13 The prosecution as dominus litis
4.14 The discretion to prosecute
4.14.1 The exercise of a discretion
4.14.2 The distinction between withdrawal of a charge and stopping of the prosecution
4.15 Prescription of the right to prosecute
4.16 The prosecution and legal ethics
4.17 The prosecution and the assistance of a private legal practitioner
4.18 Diversion of the criminal trial
4.18.1 Diversion by prosecutor in respect of minor offences: Chapter 6 (ss 41 - 42) of the Child Justice Act 75 of 2008
4.18.2 Diversion by the prosecution in terms of Chapter 8 (ss 51 - 62) of the Child Justice Act 75 of 2008
4.18.3 The Child Justice Act 75 of 2008: diversion of matters involving Schedule 3 offences and the powers and duties of a DPP
4.18.4 Criminal capacity of children: the decision to prosecute children and the provisions of the Child Justice Act 75 of 2008
4.18.5 Decision to prosecute a child who is 10 years or older but under 14
4.18.6 Withdrawal of cases against children
5 Private prosecutions
5.1 Introduction
5.2 Private prosecution under statutory right
5.2.1 Section 6(2)(e) of the Societies for the Prevention of Cruelty to Animals Act 169 of 1993
5.2.2 Section 63(1)(i) of the Legal Practice Act 28 of 2014
5.2.3 Section 33 of the National Environmental Management Act 107 of 1998
5.2.4 Section 23 of the Extension of Security of Tenure Act 62 of 1997
5.3 Private prosecution by an individual on a certificate nolle prosequi
5.3.1 Introduction
5.3.2 Locus standi of a private prosecutor
5.3.3 The certificate nolle prosequi
5.3.4 Security by private prosecutor
5.3.5 Failure of private prosecutor to appear
5.3.6 Costs of a successful private prosecution
5.3.7 Costs of accused in an unsuccessful private prosecution
5.3.8 Intervention by the State in a private prosecution
5.3.9 A private prosecution and s 59(2) of the Child Justice Act 75 of 2008
Learning aids and self-assessment
Quiz 3
Chapter 4 The right to legal assistance
1 Introduction and historical background
2 Ethical lawyering
3 The right to assistance in the pre-trial stage of the criminal procedure
4 The right to assistance during the trial
4.1 General
4.2 The duty to inform the accused of the right to legal representation
4.3 The duty to afford the accused an opportunity to obtain legal representation
4.4 The role of the legal representative and others in providing the accused with assistance
5 Some instances where withdrawal by a legal representative may be required
5.1 Conflict of interest: Two or more accused represented by one lawyer
5.2 Contradictory instructions from client
5.3 Duty of the court in case of a withdrawal by a legal representative
6 Defending the admittedly guilty
7 Competent legal representation
7.1 A substantive standard of ‘competent lawyering’
7.2 Counsel must be eligible to appear before court
8 The legal representative’s control of the defence case
8.1 Common law and constitutional principles
8.2 The passive defence right, control of the defence case and legal ethics
8.3 Legal representative’s duty to give advice
9 The accessibility of legal representation
9.1 Legal assistance at State expense
10 Legal representation of children
10.1 General
10.2 The right to legal assistance of children in the pre-trial stage of the criminal process
10.2.1 General
10.2.2 Assessment
10.2.3 Preliminary inquiry
10.2.4 National instruction to the police
Learning aids and self-assessment
Quiz 4
Chapter 5 The accused: his or her presence as a party
1 International, comparative and constitutional background
2 Exceptions to the rule
2.1 Trial in absence of accused on account of his or her misbehaviour
2.2 Absence of accused where there is more than one accused
2.3 Evidence by means of closed-circuit television or similar electronic media
2.4 Postponement of certain criminal proceedings through audiovisual link
2.5 Payment of fine without appearance in court (admission of guilt)—s 57
3 Compounding of minor offences—s 341
Learning aids and self-assessment
Quiz 5
Part II The Criminal Process
Phase One: Pre-Trial Criminal Procedure
Chapter 6 The exercise of powers and the vindication of individual rights
1 Introduction
2 The principle of legality in the context of criminal procedure
3 The requirement of reasonableness in the exercise of powers
Learning aids and self-assessment
Quiz 6
Chapter 7 Securing the attendance of the accused at the trial
1 Introduction
2 Summons
3 Written notice to appear
4 Indictment
5 Arrest
5.1 General
5.2 The requirements for a lawful arrest
5.3 Arrest with a warrant
5.3.1 General
5.3.2 The issue of a warrant of arrest
5.3.3 The execution of a warrant of arrest
5.4 Arrest without a warrant
5.4.1 General
5.4.2 The power to arrest without a warrant
5.4.2.1 Powers of peace officers
(a) whom he or she has the power to arrest;
(b) who is reasonably suspected of having committed or of having attempted to commit an offence;
(c) who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of any offence.
5.4.2.2 Powers of private persons
Members of neighbourhood watches
5.4.2.3 Special statutory powers of certain officials
5.5 Procedure after arrest
5.5.1 Special measures relating to the arrest and treatment of a child suspected of having committed an offence
5.5.1.1 A child below the age of 10 years
5.5.1.2 A child above the age of 10 but below the age of 18 years
5.5.2 Detention of awaiting trial prisoners
5.6 The effect of an arrest
5.7 The duty to arrest
5.8 Resisting arrest and attempts to flee
5.8.1 Use of force in effecting an arrest
5.8.2 The requirements for the use of force
Arrest using a dog
5.9 Escape from lawful custody
5.10 Arrest and detention for interrogation
6 Other methods
7 Extradition
Learning aids and self-assessment
Quiz 7
Chapter 8 Interrogation, interception and establishing the bodily features of persons
1 Interrogation
1.1 General powers with regard to interrogation
1.1.1 Entry to premises to interrogate persons: ss 26 and 27
1.1.2 Obtaining the name and address of a person: s 41
1.1.3 Detention for the purposes of interrogation
1.2 Powers relating to possible witnesses
1.3 Powers relating to suspects and accused
2 Interception and monitoring
3 Ascertainment of bodily features of persons
4 Section 37—powers in respect of body-prints and bodily appearance of accused and convicted persons
Learning aids and self-assessment
Quiz 8
Chapter 9 Search and seizure
1 Introduction
2 The scope and content of the right to privacy
3 Articles that are susceptible to seizure
4 Search in terms of a search warrant
4.1 General rule
4.2 The discretion of a judicial officer to issue a warrant
4.3 General search warrants
4.4 Warrants to maintain internal security and law and order
4.4.1 Background
4.4.2 Warrant in terms of s 25
4.5 General information requirements with regard to warrants
5 Search without a warrant
5.1 Introduction
5.2 Powers of the police
5.2.1 Consent to search and/or to seize
5.2.2 Search and seizure where a delay would defeat the object thereof
5.2.3 Search and seizure for the purposes of border control
5.2.4 Search and seizure in a cordoned-off area
5.2.5 Search and seizure at a roadblock or checkpoint
5.2.6 Search and seizure in terms of the Drugs and Drug Trafficking Act 140 of 1992
5.3 Powers of the occupiers of premises
5.4 Search for the purpose of effecting an arrest
5.5 Review of the actions of the person conducting the search
6 Search of an arrested person
7 The use of force in order to conduct a search
8 General requirement of propriety with regard to searching
9 Unlawful search
9.1 Formal-law consequences of unlawful action by the authorities
9.2 Substantive-law consequences of unlawful action by the authorities
Learning aids and self-assessment
Quiz 9
Chapter 10 Bail and other forms of release
1 Introduction
1.1 The effect of bail
1.2 The constitutional right to bail and the need for and nature of bail as a method of securing liberty pending the outcome of a trial
1.3 Bail and some fundamental principles of criminal justice
1.4 Release of child on bail: the provisions of s 25 of the Child Justice Act 75 of 2008
2 Bail granted by police before first court appearance of an accused
2.1 Introduction
2.2 Procedure concerning police bail
2.3 Police bail: the limitations
2.4 The discretion
3 Bail granted by prosecution
3.1 The provisions of s 59A
3.2 Section 59A and the provisions of the Child Justice Act 75 of 2008
4 Bail applications in court
4.1 General provisions
4.2 The provisions of s 50(6)
4.3 Appeal by accused to High Court against a lower court’s decision concerning bail
4.4 Appeal by director of public prosecutions against decision of court to release accused on bail
4.5 The High Court: power to regulate bail matters where statutes are silent
5 The risks and factors which must be considered in determining a bail application
5.1 The potential risks
5.2 When is the refusal of bail in the interests of justice?
5.2.1 The ground in s 60(4)(a): factors which the court may consider (s 60(5))
5.2.2 The ground in s 60(4)(b): factors which the court may consider (s 60(6))
5.2.3 The ground in s 60(4)(c): factors which the court may consider (s 60(7))
5.2.4 The ground in s 60(4)(d): factors which the court may consider (s 60(8))
5.2.5 The ground in s 60(4)(e): factors which the court may consider (s 60(8A))
5.2.6 The interests of justice and the personal freedom of and possible prejudice to an accused (s 60(9))
5.2.7 Additional factors to be considered in a bail application pending an appeal against conviction or sentence
5.2.8 The amount of bail
5.2.9 Some irrelevant factors
6 Bail conditions
6.1 Discretionary special conditions as opposed to essential conditions
6.2 Practical examples and general principles
6.3 Amending or supplementing bail conditions
6.4 Section 25 of the Child Justice Act 75 of 2008
7 Payment of bail money
7.1 Payment of bail by third person
7.2 Legal representative not to pay bail on behalf of client
8 Cancellation of bail and forfeiture of bail money
8.1 Failure to observe conditions of bail
8.2 Failure to appear: procedure and consequences
8.3 Cancellation of bail where accused about to abscond
8.4 Cancellation of bail at request of accused
8.5 Forfeiture and remission
8.6 Criminal liability on the ground of failure to appear or to comply with a condition of bail
9 Procedural and evidentiary rules relating to bail applications
9.1 The pro-active (inquisitorial) role of the court
9.2 Application of a free system of evidence
9.3 Proof of previous convictions
9.4 The subsequent trial and the admissibility of the record of the bail proceedings
9.5 The relationship between s 60(11B)(c) and s 235
9.6 Access to information held by the prosecution
9.7 The burden and standard of proof in bail applications
9.8 The provisions of s 60(11)(a) and (b)
9.9 The meaning of ‘exceptional circumstances’ as used in s 60(11)(a)
9.10 New facts required for a renewed bail application
10 Release other than on bail
10.1 The provisions of s 27 of the Child Justice Act 75 of 2008
10.2 Release on warning
11 Section 63: release on warning or on bail (or amendment of bail conditions) on account of prison conditions
11.1 Introduction
11.2 The role of the head of prison
11.3 The category of accused in respect of whom a head of prison can bring a s 63A(1) application
11.4 Role of the magistrate
12 Bail applications by way of audiovisual link
Learning aids and self-assessment
Quiz 10
Chapter 11 Pre-trial examinations
1 Introduction
2 Plea in magistrate’s court on a charge justiciable in the Regional Court
3 Plea in magistrate’s court on a charge justiciable in the High Court
4 Preparatory examinations
4.1 What is a preparatory examination?
4.2 When is a preparatory examination held?
4.3 Powers of the director of public prosecutions after conclusion of the preparatory examination
Learning aids and self-assessment
Quiz 11
Phase Two: The Trial
Chapter 12 Indictments and charge sheets
1 Lodgement and service of indictments and charge sheets
1.1 Introduction
(a) Access to the content of the police docket or relevant parts thereof
(b) To be informed of the allegations (s 35(3)(a) of the Constitution)
(c) To prepare its own case sufficiently (s 35(3)(b) of the Constitution)
(d) To properly exercise its right ‘to adduce and challenge evidence’ (s 35(3)(i) of the Constitution)
1.2 In the High Court of South Africa
1.3 In the lower courts
2 Form and substance of charges and indictments
2.1 Terminology
2.2 Necessary averments in the charge sheet
2.3 Negativing exceptions, exemptions, provisos, excuses or qualifications
2.4 Inclusion of unnecessary averments
2.5 The obligation to provide particulars
3 Defect in indictment or charge cured by evidence
4 Correction of errors in charge
5 Splitting of charges or duplication of convictions
5.1 A single act constitutes more than one statutory offence, or statutory and common-law offences
5.2 A single act constitutes more than one offence at common law
5.3 More than one act of the same nature or of more or less the same nature is committed practically simultaneously, constituting more than one offence (whether a statutory or common-law offence)
5.4 Conduct of the perpetrator is spread over a long period of time and amounts to a continuous repetition of the same offence
6 Joinder of offences
7 The joinder of several accused
Learning aids and self-assessment
Quiz 12
Chapter 13 The trial courts
1 Venue of the trial courts
2 Constitution of and the manner of arriving at decisions by the trial courts
2.1 Lower courts
2.1.1 Recusal of assessors in lower courts
2.2 Divisions of the High Court
(a) Presiding judge’s inability to act
(b) Assessors and their inability to act as assessors
2.3 Rights and duties of assessors
2.4 Recusal of judicial officers
2.4.1 General
2.4.2 Application for recusal of judicial officer
2.5 Trial by jury (repealed)
3 Impartiality and fairness
3.1 General
3.1.1 Introduction
3.1.2 Impartiality and courtesy
3.1.3 Audi alteram partem
3.1.4 Decisions solely upon evidence; the oath
3.2 Fairness to the accused
Learning aids and self-assessment
Quiz 13
Chapter 14 Arraignment and plea of an accused
1 Arraignment and general principles
2 When plea by accused may be dispensed with
2.1 Refusal to plead
2.2 Ambiguity in plea
2.3 Obstructive and rowdy behaviour
2.4 Mentally disabled accused
2.4.1 Enquiry in terms of s 79: capacity to understand proceedings; mental illness or intellectual disability and criminal responsibility
2.4.2 Findings and directions in terms of s 77: capacity to understand proceedings
2.4.3 Findings and directions in terms of s 78: Mental illness or intellectual disability and criminal responsibility
2.5 Objections to the charge
3 Plea bargaining
3.1 Traditional plea bargaining
3.2 Statutory plea bargaining
4 Pleas which may be raised by accused
4.1 Pleas mentioned in the Act
4.2 Guilty plea
4.2.1 General
4.2.1.1 Questioning by the presiding official
4.2.1.2 Accused’s version
4.2.1.3 The prosecutor’s role
4.2.2 Statement by accused instead of questioning
4.2.3 Evidence or questioning with regard to sentence
4.2.4 Correction of plea of guilty
4.2.5 Committal for sentence by regional court
4.2.6 Amendment of plea from ‘guilty’ to ‘not guilty’
4.3 Not guilty plea
4.3.1 Explanation of plea
4.3.2 Admissions made in the course of explanation of plea
4.3.3 Accused’s participation
4.3.4 Committal to regional court
4.3.5 Amendment of plea of not guilty
4.3.6 The plea explanation procedure in essence
4.4 Plea of prior conviction or acquittal
4.4.1 General principles
4.4.1.1 The Constitutional provision—s 35(3)(m) of the Constitution:
4.4.1.2 Basic notions of fairness, finality and justice to the accused, relevant to the plea of autrefois acquit or autrefois convict
4.4.1.3 The common law and the statutory provisions
4.4.2 Plea of autrefois acquit
4.4.2.1 The concept of ‘the same offence’
4.4.2.2 Upon the merits
4.4.2.3 The concept of a ‘competent court’
4.4.3 The plea of autrefois convict
4.4.4 Section 106 and the plea of autrefois acquit or autrefois convict
4.4.5 Which plea is appropriate to plea?
(i) Conviction following the first trial
(ii) Acquittal following the first trial or following a decision by a superior court on appeal
(iii) When the court of appeal found that the irregularity of the first trial vitiated the proceedings of the first trial
4.5 Pardon by the President
4.6 Plea to the jurisdiction of the court
4.7 Discharge of witness from prosecution
4.8 Lack of authority or title of the prosecutor to prosecute
4.9 Lis pendens
4.10 Pleas in the case of criminal defamation
4.11 Plea as to an order of court on an unreasonable delay in a trial
5 After pleading, accused entitled to verdict
Learning aids and self-assessment
Quiz 14
Chapter 15 Miscellaneous matters relating to the trial
1 Open justice: who may attend the trial?
1.1 The content of the open justice principle
1.1.1 Guidelines on audio and televised broadcasting of trial court proceedings
1.1.2 Restrictions on or exceptions to the open court principle
2 Witnesses
2.1 Securing attendance of witnesses
2.2 Recalcitrant witness
3 Trial of mentally disabled persons
4 Trial of drug-addicted persons
5 Adjournment (Postponement)
5.1 Postponement through audiovisual linkage
6 Speedy trial
Learning aids and self-assessment
Quiz 15
Chapter 16 Joinder and separation of trials
1 Introduction
1.1 Numerical identification of co-accused
1.2 Adults and children as co-accused: the provisions of s 63(2) of the Child Justice Act 75 of 2008
2 Joinder or separation: the conflicting interests
3 Joinder of persons implicated in the same offence: section 155 of the Act
3.1 The provisions of s 155(1)
3.2 The provisions of s 155(2)
4 Persons committing separate offences at same time and place may be tried together: section 156 of the Act
4.1 The prosecutor’s opinion
4.2 At the same place and the same time (or about the same time)
5 Stage at which an accused can be joined with any other accused: section 157(1) of the Act
6 Separation of trials: section 157(2) of the Act
6.1 Court’s power to raise the matter of separation
6.2 Test to be applied
6.3 Consequences of a successful separation
Learning aids and self-assessment
Quiz 16
Chapter 17 Trial principles and the course of the criminal trial
1 Introduction
1.1 The meaning of ‘course of the criminal trial’
1.2 The nature and purpose of a criminal trial
2 The seven fundamental principles which govern a criminal trial
2.1 The fair trial principle
2.2 The principle of legality
2.3 The principle of judicial impartiality
2.3.1 Section 167 of the Act (power of court to examine witness or person in attendance)
2.3.2 Section 186 of the Act (court may subpoena witness)
2.3.3 Section 63(4) of the Child Justice Act 75 of 2008
2.4 The principle of equality of arms
2.5 The principle of judicial control
2.6 The principle of orality
2.6.1 Interpreters
2.6.2 Oath (or affirmation or warning)
2.6.3 Examination-in-chief
2.6.4 Cross-examination
2.6.5 Re-examination
2.6.6 Questioning where an intermediary has been appointed
2.7 The principle of finality
3 The case for the prosecution
3.1 Opening of the State’s case
3.2 The calling of State witnesses and examination-in-chief by prosecutor
3.3 Cross-examination of State witnesses by the defence
3.4 Re-examination of State witnesses by the prosecutor
3.5 Closing the State’s case
4 Discharge of accused at the end of the state’s case
4.1 The provisions of s 174
4.2 Background and interpretation
4.3 The test for discharge
4.3.1 The so-called ‘Schuping test’
4.3.2 The ‘Schuping test’ in the constitutional era
5 The defence case
5.1 The passive defence right: closing the defence case as a response
5.2 Defence address
5.3 The active defence right
5.4 The active defence right and the sequence of defence witnesses
5.5 Evidence-in-chief of defence witnesses
5.6 Cross-examination of defence witnesses by the prosecution
5.7 Re-examination of defence witnesses
6 Final arguments by prosecution and defence
7 The verdict on the merits
Learning aids and self-assessment
Quiz 17
Chapter 18 The verdict
1 Introduction
2 Verdict to be delivered within reasonable time
3 Court required to give reasons
4 Competent verdicts (general rules)
4.1 Nature, purpose and statutory basis
4.2 Competent verdicts and the constitutional right to a fair trial
5 Competent verdicts (selected examples)
5.1 Attempt: s 256 of the Act
5.2 Accessory after the fact: s 257 of the Act
5.3 Murder and attempted murder: s 258 of the Act
5.4 Robbery: s 260 of the Act
5.5 Sexual offences in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007: s 261 of the Act
5.6 Further examples of crimes covered by competent verdicts: s 259 and ss 262 to 269A of the Act
5.7 Offences not specified in ss 256 to 269A of the Act: s 270 of the Act
5.8 The crime of ‘statutory intoxication’ as a competent verdict on any charge: s 1(2) of the Criminal Law Amendment Act 1 of 1988
6 The court’s amendment of its own verdict: section 176 of the Act
Learning aids and self-assessment
Quiz 18
Phase Three: The Sentence
Chapter 19 The sentence
1 Introduction
2 Concepts
2.1 Sentence
2.2 Punishment
2.3 Sentencing
2.4 Offender/criminal/accused
2.5 Offence/crime
3 The sentence discretion
4 General principles with regard to sentencing
5 Penalty clauses
5.1 General
5.2 The Adjustment of Fines Act 101 of 1991
5.3 Minimum sentences
6 The pre-sentence investigation
6.1 General
6.2 Previous convictions
6.3 The accused on sentence
6.4 The duty to supply information
7 Absence of judicial officer
8 Mitigating and aggravating factors
8.1 Youth as a mitigating factor
8.2 Previous convictions as an aggravating factor
9 The unconstitutionality of the death penalty
9.1 General remarks
9.2 Introduction
9.3 Arbitrariness in the imposition of the death penalty
9.4 The death penalty in foreign law
9.5 Public opinion
9.6 Cruel, inhuman and degrading punishment
9.7 The limitation clause
9.8 Conclusion
10 The forms of punishment that may be imposed
10.1 Introduction
10.2 Imprisonment
10.2.1 General
10.2.2 The various forms of imprisonment
10.2.2.1 Ordinary imprisonment for a term determined by the court
10.2.2.2 Imprisonment for life
10.2.2.3 Declaration as dangerous criminal
10.2.2.4 Declaration as a habitual criminal
10.2.2.5 Periodical imprisonment
10.2.2.6 Section 276(1)(i) imprisonment
10.2.3 Further provisions on imprisonment
10.2.4 Reduction of sentence
10.2.5 The value of imprisonment
10.3 Fine
10.3.1 General
10.3.2 When are fines imposed?
10.3.3 The amount of the fine
10.3.4 Determining the means of the offender
10.3.5 Recovering the fine
10.3.5.1 Imprisonment in default of payment
10.3.5.2 Deferment of payment of the fine
10.3.5.3 Further relief after the start of the prison term
10.3.5.4 Other methods of recovery
10.3.6 To whom does the fine go?
10.4 Correctional supervision
10.4.1 General
10.4.2 The nature of correctional supervision
10.4.3 The various forms of correctional supervision
10.4.4 The penal value of correctional supervision
10.4.5 Factors influencing the imposition of correctional supervision
10.4.6 The execution of correctional supervision
10.5 Committal to a treatment centre
10.6 Juvenile offenders
10.6.1 Introduction
10.6.2 General sentencing principles
10.6.3 Sentences introduced by the Act
10.6.3.1 Introduction
10.6.3.2 General principles
10.6.3.3 Imprisonment
10.6.3.4 Compulsory residence in a care centre
10.6.3.5 Correctional supervision
10.6.3.6 Fines
10.6.3.7 Restorative justice
10.6.3.8 Community-based sentence
10.6.3.9 Suspension of sentence and postponement of sentencing
10.7 Caution and discharge
11 Suspended and postponed sentences
11.1 General
11.2 Exclusionary provisions
11.3 Postponement of passing of sentence
11.4 Suspension of sentence
11.5 The conditions
11.6 Breaching the conditions
12 Sentences for more than one crime
13 Compensation and restitution
13.1 Compensation
13.2 Restitution
Learning aids and self-assessment
Quiz 19
Phase Four: Post-Verdict and Post-Sentence Remedies
Chapter 20 Review
1 Introduction
1.1 The right to review and review in general
1.1.1 Review: a constitutional right
1.1.2 When will review proceedings be more appropriate than appeal proceedings?
1.1.3 Categories of review procedures
1.2 Judicial review in terms of the Constitution
1.2.1 The origin, nature and extent of judicial review
1.2.2 Limitation of constitutional rights and the approach thereto
1.2.3 Locus standi and remedies in constitutional matters
1.2.3.1 The meaning of a constitutional matter and related issues
1.2.3.2 Who has locus standi, what relief is sought and when?
1.2.4 Access to competent courts relating to constitutional matters
2 The difference between appeal and review procedures
3 Review in terms of the Criminal Procedure Act
3.1 Automatic review
3.1.1 General
3.1.2 District courts’ sentences subject to automatic review
3.1.2.1 Automatic review applicable in respect of children in terms of the Child Justice Act 75 of 2008
3.1.2.2 When automatic review is not applicable
3.1.3 Procedure on review
3.1.3.1 Lost or incomplete record
3.1.4 Automatic review and the right to appeal
3.2 Extraordinary review
3.3 Review of proceedings before sentence
3.4 Set down of case for argument
4 Review in terms of the Superior Courts Act, 2013
4.1 Review at the instance of the accused
4.1.1 General
4.1.2 Grounds for review
4.1.3 Procedure
4.2 Review at the instance of the prosecution
5 Functions and powers of a court of review
5.1 General
5.2 Powers of the High Court in terms of s 304
5.3 Powers of the High Court in terms of s 312
5.4 The High Court’s inherent review jurisdiction
5.5 Powers of judicial review and exclusion of evidence
5.5.1 General
5.5.2 Exclusion of unconstitutionally obtained evidence
6 Execution of the sentence pending review
7 Retrial where conviction is set aside
8 Declaratory order
Learning aids and self-assessment
Quiz 20
Chapter 21 Appeal
1 General
1.1 Historical background
1.2 Right of appeal
1.2.1 The constitutional development of the right
1.2.2 Limitation of constitutional rights
1.2.3 Access to the High Court of South Africa in respect of appeals against decisions and orders of lower courts and of constitutional issues
1.2.3.1 General appeal procedure
1.2.3.2 Constitutional issues
1.2.4 Access to the Supreme Court of Appeal and to a full court of a division of the High Court in respect of appeals against decisions and orders of the High Court
1.2.4.1 General appeal procedure
(a) Appeal from a decision of the High court sitting as a trial court
(b) Appeal from a decision of a division of the High court sitting as the court of appeal
1.2.4.2 Constitutional issues
1.2.5 Access to the Constitutional Court
1.2.5.1 General
1.2.5.2 Ways of access to the Constitutional Court
(a) Direct access to the Constitutional Court
(b) Access to the Constitutional Court by means of an appeal with the leave of the Constitutional Court
1.3 No appeal before conviction
1.4 Appeal against a sentence
1.5 Appeal on the facts
1.6 Difference between an appeal on facts and an appeal on a question of law
1.7 Appearance of the appellant
1.8 Withdrawal of appeal
1.9 Publication of proceedings
1.10 Inspection in loco
1.11 Aspect first raised on appeal
1.12 Record of the proceedings
2 Appeals to the High Court of South Africa
2.1 To which division?
2.1.1 Appeal against a bail decision
2.2 When may an accused appeal?
2.2.1 Appeal from lower court by person convicted
2.2.2 Exceptions
2.3 Who has to apply for leave to appeal?
2.3.1 Duty of court in relation to unrepresented accused persons regarding their rights
2.4 An application for leave to appeal in a lower court
2.4.1 Grounds of appeal
2.4.1.1 Prospects of success on appeal
2.4.2 Amendment of grounds of appeal
2.4.3 Procedure after leave to appeal is granted or denied
2.5 An application for condonation
2.6 An application to adduce further evidence
2.7 Refusal of application: Petition procedure
2.7.1 Powers and duties of a court considering a petition
2.8 Hearing of appeal by a division of the High Court
2.9 When may the prosecution appeal?
2.9.1 Appeal by the prosecution against a bail decision
2.9.2 Appeal by the prosecution restricted to a question of law
2.9.3 Appeal by the prosecution against a sentence
2.10 Powers of court of appeal
2.11 Execution of a sentence pending appeal
2.12 Remission for a new sentence
2.13 Fresh trial
3 Appeals to a full court of a division of the high court and to the Supreme Court of Appeal
3.1 Jurisdiction and Constitution
3.1.1 The Supreme Court of Appeal
3.1.2 A full court
3.1.2.1 When will a full court of a division hear an appeal?
3.2 Right of appeal to the Supreme Court of Appeal or to a full court of a division of the High Court
3.3 Appeals to the Supreme Court of Appeal regarding appeals in criminal cases originating in lower courts
3.4 Appeal against decisions of a division of the High Court to higher courts
3.4.1 Application for leave to appeal:
3.4.1.1 Appeal against decisions by a division of the High Court as a trial court
3.4.1.2 Appeal against decisions by a division of the High Court as a court of appeal
3.4.1.3 To whom must the application be made?
3.4.1.4 Grounds of appeal
3.4.1.5 When leave to appeal should be granted
3.4.2 Application for leave to adduce further evidence
3.4.3 Application for condonation
3.4.4 Refusal of application for leave to appeal
3.5 Appeal on special entry of irregularity or illegality to the Supreme Court of Appeal
3.6 Reservation of questions of law
3.7 Appeal by the prosecution to the Supreme Court of Appeal
3.7.1 Appeal against a decision by a division of the High Court on bail
3.7.2 Appeals limited to questions of law
3.7.3 Appeal against a sentence imposed by a division of the High Court
3.8 Powers of court on hearing of appeals
3.9 Statutory or other limitations on the powers of the Supreme Court of Appeal
3.9.1 Setting aside or alteration of conviction on ground of irregularity
3.9.2 The inherent jurisdiction of the Supreme Court of Appeal
3.10 Execution of a sentence pending appeal
3.11 Proceedings de novo when conviction is set aside on appeal
Learning aids and self-assessment
Quiz 21
Chapter 22 Clemency and other relevant aspects
1 Presidential powers
2 Expungement of certain criminal records relating to specific convictions and sentences
2.1 Expungement of criminal records of children convicted before the Child Justice Act 75 of 2008 came into operation
2.2 Expungement of criminal records of children convicted after the Child Justice Act came into operation
2.3 Expungement of criminal records of convicted adults in terms of the Criminal Procedure Act
2.4 Removal and expungement of certain criminal records under the Sexual Offences Act, 1957, and Act 5 of 2015, which amended the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
3 Reopening of case and powers of the President
4 Parole distinguished from clemency

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