Criminal Procedure
CMP 201 – 6
Study Unit 1
Basic principles, values and constitutionalism
Ø Although purpose of criminal investigation/Trial and post-trial procedures is to find the truth - Truth is not an absolute and not even the highest value!
Ø Eg the exclusion of Privileged evidence, even though it is highly reliable and relevant
Ø Court is unwilling to become part of illegal state action against its citizens
Ø Prosecution must cover adequately every substantive element of the crime as defined and which the accused is alleged to have perpetrated, by presenting concrete and admissible evidence to prove beyond reasonable doubt that the suspect is guilty (Prima facie evidence)
Ø If state does not succeed in proving the above - accused can in no way be convicted - end may in fact be discharged at the end of the state's case without even being required to proceed with the defence case
Ø If state does succeed in proving it a prima facie case - and accused does nothing to disturb that case, a the proof may harden into proof beyond reasonable doubt and accused may be convicted (simply because there is nothing which reasonably produces a doubt in the Court's mind
Ø If accused can make court and are reasonably at one of the required elements has been proved - he must be acquitted
Ø It is not necessary for a court to believe the accused - just have reasonable doubt
Ø Accused has a right to silence a (privilege against self-incrimination)
Ø This applies to the pre-trial stage, the trial phase and also the sentencing stage
Ø Accused is now viewed as a full legal subject
o Must be allowed to participate fully/meaningfully in the criminal process
o This is why he has a right to representation by counsel
o To inform him of his rights
Ø A person should not be penalised for exercising his rights
o So no adverse inference should be drawn against his decision not to testify as
§ No inference can be drawn (many reasons why not testify)
§ No inference could logically be drawn to full gaps in the state's case
o They will only be adverse inference drawn when the state has covered each element the crime and accused has not raised reasonable doubt on any of the elements
o In this case, silence to have not add anything positive to the state's case - merely does not disturb it
Ø The accused's right must be protected throughout to process
Ø Two models - inquisitorial and accusatorial
Ø Real life systems contain elements of both
Ø A due process model presupposes that a suspect is a full legal subjects with rights and powers and that state power is circumscribed and limited by law
Ø A crime control model presupposes a suspect he's a mere object of inquiry with no rights, the state is all powerful
o Extreme models - presumption of guilt, accused the may be tortured to extract a confession and he may be expected to prove his innocence
Ø Constitution or Bills of rights at to be interpreted authoritatively - called the principle of justiciability
Ø In a Bill of Rights - criminal procedural provisions usually
o Operate vertically (although present constitution also provides for horizontal application)
o Are stated negatively (they are limitations on state powers)
§ They may also be limitations on democracy
o Recognises that most rights are not absolute and may and a certain circumstances be limited
o recognises the principle of justiciability, as Bill of Rights would be useless without it - this principle requires a strong and independent Bench
Ø Some remedies for infractions/threatened infractions of fundamental rights:
o The writ of habeas corpus
§ Remedy resorted to in the course of criminal process to obtain judicial review of police action
§ Court asked for order that the respondent (state) produced a body of the detainee (X) before the court at a certain date and time
§ Order coupled with rule nisi that respondent must show reason why X should not be released
§ Application may be made ex parte
o Civil action for damages - to compensate suspects for abuse which they suffered
o The interdict - used to prevent harm as well (threatened harm)
o Mandamus - Reverse of interdict, was give order that functionary perform his/her duty
o Exclusionary rule - evidential remedy excluding evidence obtained in a manner that violates any right if it would render the trial unfair or be detrimental to the administration of justice (guided discretion to exclude or to admit)
§ Aims to deter unlawful police conduct
§ Traditionally had no place in our law
§ Theoretical basis – privilege
· Because of respect for a higher value - relevant evidence is excluded
· Even highly reliable evidence may be excluded
o Informal Remedies
§ Eg to resist a lawful arrest or escape from a lawful custody
§ Risky in practice
o Constitutional mechanisms
§ Various mechanisms for promotion of maintenance of human rights in constitution
Ø Note: some rules have double-functional nature
o Procedural rules may have a Substantive effect and vice-versa
o Eg infringement of suspects rights by searching him in terms of the provisions of criminal Procedure - the act of searching is both a regular procedural action and a lawful limitation of suspects rights to privacy
o Eg if police officer may lawfully arrest suspect and suspect attacks officer - officer may rely on Self-defence
Ø Reasonable grounds:
o Grounds - facts which can be ascertained/perceived by the five senses
o Reasonableness - quality of the inference which is drawn from the grounds that have been ascertained
Ø Law of arrest does not require an arrestor to be correct - only to be reasonable
Ø Criminal process is a system - what happens in the early stage is passed on and may have a powerful influence on later stages
Ø Legal guilt is different from absolute/moral/factual guilt at
Study Unit 2
Criminal Courts of the Republic
1. Introduction
Ø Courts are independent and subject only to constitution and the law
Ø Must apply the law impartially and without fear or, favour or prejudice
2. Constitutional court
Ø Consists of President, deputy president and nine other judges
Ø Highest court in constitutional matters
o May only decide these
Ø Makes final decision on whether matter is Constitutional matter/ issue is connected with decision on constitutional matter
Ø Only CC may decide on
o Disputes between organs of state in national/provincial sphere concerning constitutional status/powers/functions of them
o Constitutionality of parliamentary/Provincial Bill
o Constitutionality of Amendment to constitution
o Question whether Parliament/President has failed to fulfil constitutional obligation
Ø Makes final decision whether Act of Parliament/Provincial Act/Presidential conduct is Constitutional
Ø Must confirm any order of invalidity made by Supreme Court/High Court before that order has any force
3. Superior courts
Ø For Criminal Procedure Act 51 of 1977- Superior Court means Provincial/local division of the High Court - does not include Supreme Court of Appeal
3.1. Supreme Court of Appeal
Ø May decide appeals in any matter
Ø Highest court of Appeal except constitutional matters
Ø Quorum consists of five judges for criminal matters
Ø In practice three judges usually hear a Criminal Appeal
3.2. High Court
Ø Consists of
o Six provincial divisions
o Three local divisions
o The high courts of Bop, Cikei, Transkei and Venda
Ø Provincial divisions:
o Cape of Good Hope
o Eastern Cape -Grahamstown
o Northern Cape- Kimberley
o Natal – Pietermaritzburg
o Orange Free State – Bloemfontein
o Transvaal – Pretoria
Ø Local divisions
o Witwatersrand local division – Johannesburg
o Durban and coast local division – Durban
o SE Cape local division - Port Elizabeth
4. Courts
Ø Means any court established under provisions of Magistrates Courts Act
Ø The Magistrates Court is instituted for a district - district court
Ø A court for a regional division was also instituted - regional court
Ø Periodical courts are magistrates' courts which sit at regular intervals at places other than the seats of fixed permanent district courts
o Perform same function in large/sparsely populated areas as circuit courts
o Same jurisdiction as district courts (except for some territorial limitations)
5. Jurisdiction of criminal courts
Ø We distinguish:
o Appeal jurisdiction
o Jurisdiction in respect of offences
o In respect of territory
o In respect of punishment
o In respect of validity of provisions of any act
5.1. Appellate jurisdiction
Ø Supreme Court of Appeal
o Has authority to hear an appeal against any judgment of a High Court
o People found guilty by superior court may not automatically appeal
· Leave has to be sought from the High Court
o Also has special powers in terms of section 333:
· Whenever Minister of Justice has doubt as to correctness of any decision of High Court in criminal case a question of law
· Or where decision given by 2 high courts is in conflict with each other
· He may submit that decision to SCA so that it can answer the question
· For future guidance of all courts
· Although the previous judgment is not reversed/amended by such a decision of SCA
· That clemency may be granted by the executive
Ø Provincial divisions of the High Court
o Have appeal/Review jurisdiction in respect of April proceedings from lower Courts
o Full Court has appellate jurisdiction to hear Appeal in criminal case decided by a single judge - a if questions of law and fact involved in the appeal for the - does not require attention of SCA
Ø Local divisions of the High Court
o Only Witwatersrand local division has the same appellate jurisdiction as Provincial division
o All other local divisions - no appellate jurisdiction
5.2. Jurisdiction in respect of offences
Ø Supreme Court of Appeal
a) May act as Court of Appeal only
b) Except where Court has inherent power to summarily impose a sentence
Ø Provincial and local divisions of High Court
a) Have original jurisdiction for all offences
Ø District Court
a) Jurisdiction to try all crimes except
Ø Treason
Ø Murder
Ø Rape
Ø Regional court
a) May try all crimes except treason
5.3. Jurisdiction in respect of offences committed on South African territory
Ø Supreme Court of Appeal
a) Can hear an appeal against any judgment of High Court and decide it
Ø Provincial divisions of the High Court
a) Original jurisdiction in respect of all offences committed with in their respective areas
b) Cape of Good Hope Provincial division - does not have concurrent jurisdiction in areas of the eastern and northern Cape divisions
c) ~ Hull: a division of High Court has jurisdiction to put into effect a suspended sentence imposed by another division/Magistrates Court
d) Legislature or sometimes enacts that for specific offences - it shall be deemed to have been committed in any place where the accused happens to be
e) ~ Fairfield: If Act creates an offence and confers jurisdiction on lower court - does not oust jurisdiction of High Court
f) Section 111 of CPA - National Director of Public Prosecutions may order a trial in the Court within the area of a Director of Public Prosecutions although the offence was committed in area of another director
Ø applicable to High And Lower Courts
Ø ~Ndzeku
Ø Local divisions of High Court
a) Provincial divisions have concurrent jurisdiction in areas
b) Judge president of Provincial division may (by notices in GG) divide area of jurisdiction of Provincial division into circuit districts
c) Circuit courts must sit at least twice yearly
Ø Regional Courts and district courts
a) Distinguish between
Ø summary trial and
Ø preparatory examination
b) Summary trial: Accused is charged in magistrates' court and decided
c) Preparatory examination: there is a hearing in which Accused is not tried - magistrate does not judge, but only heirs evidence which is sent to Director of Public Prosecutions
d) NB!!! –summary trials (see page 36)
e) Summary trials
Ø Magistrates' Court Act: district court and regional court have jurisdiction to hear trials of persons charged with offences committed within the district or within the regional division (a number of districts)
f) SECTION 90:
1) Also a person may be tried as if he had been charged with offences committed within area if he
a) Committed an offence within a distance of four kilometres beyond the boundary of the district/regional division
b) Committed an offence in a vehicle on a journey, where part of offence was performed within a distance of four kilometres from the boundary of the district/regional division
c) Committed offence on board any vessel on journey upon any river, and journey or part thereof was performed in the district/regional division/within four kilometres
d) Committed offence on board any vessel on a voyage within territorial waters and territorial waters adjoin the district or regional division
e) Committed an offence which began or completed within the district/regional division
Ø Person may be tried in an area for offence committed in another province but within four kilometres beyond the boundary of the area if it is an offence under common law and probably also If an offence in terms of statutory law operative in both provinces
a) But where statutory provision not applicable in both provinces - court cannot apply this law (Even if there is a similar law) ~Baba
b) Court cannot apply law operative in Province where Act/omission took place, but not in its own area ~Mpika
c) Position is similar If the two offences are the same but in the one area mandatory minimum sentence should be imposed after conviction and in other this does not apply
2) Where it is uncertain in which of several jurisdictions an offence has been committed - may be tried in any of such jurisdictions
3) Person may be tried by a court of any district/regional division erring any at/Omissions/event which is an element of the offence took place