NOTES. Criminal Procedure 1 CMP201-6

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1 NOTES Criminal Prcedure 1 CMP A BASIC INTRODUCTION TO CRIMINAL PROCEDURE 1.1. The place f the law f criminal prcedure in the legal system The law f criminal prcedure is the entire bdy f rules that prescribes the prcedure t fllw in punishing criminals by virtue f state authrity. Criminal prcedure must, subject t the supremacy f the Cnstitutin: - prvide a prcess t enfrce criminal law; - allcate pwer t state fficials; and - articulate fair prcess nrms with reliable utcmes. LAW Substantive law Legal rules determining the rights and duties f individuals and the state Adjectival law Prcedures t enfrce substantive law by prving and judging the - Public law Cnstitutinal law Administrative law Internatinal law Criminal law Offence Public/Criminal prcedure law Law f evidence Family law Prperty law Law f persns Law f delict Private Law Instituted Claim Civil prcedure law (used in public prcedure, eg mandamus, interdict) Law f evidence 1.2. Crime cntrl and due prcess Criminal prcedure is a system which seeks t incrprate certain fundamental values and balance tw cnflicting scial interests, namely individual freedm and effective crime cntrl. This can be best explained in terms f the fllwing mdels: Crime Cntrl Mdel Regards the repressin f criminal cnduct as the mst imprtant functin f criminal prcedure. Due Prcess Mdel Regards the adherence t rules which duly and prperly acknwledge individual rights at every stage f the criminal prcess as the nly grund n which a cnvictin and sentence can be secured. Nt rival mdels! Bth seek t vindicate the gals f substantive criminal law N real-life systems cnfrm exactly t ne specific mdel, an apprpriate balance must be secured, and there are certain tensins between the underlying values f the tw mdels. Case law illustrates the tensin between the tw mdels: Naid 1998 (1) SACR 479 N The plice had btained incriminating evidence in breach f the cnstitutinal right t privacy. This evidence was excluded n the basis f Sectin 35(5) and resulted in acquittal f the accused despite the fact that the rbbery in questin was (at that stage) the biggest rbbery in the histry f Suth Africa.

2 CMP201-6 Page 2 f 51 Our system, essentially weighted in favur f due prcess in the spirit f the Bill f Rights, des nt neglect the rights f the victims f crime; it merely seeks t ensure that vindicatin f the rights f victims shuld nt trigger r lead t further injustices against accused by preventing abuse f pwer and putting practical limitatins n state pwer in place. Crime cntrl and due prcess are nt the sle mdels in criminal prcess and we can als distinguish the - punitive mdel, which affirms the retributive imprtance f punishment and the need fr the rights f victims t be cnsidered alng with the rights f the accused; and - nn-punitive mdel, which attempts t minimise the pain f bth victimisatin and punishment by stressing crime preventin and restrative justice. Restrative justice invlves a prcess that seeks t avid the invcatin f the frmal criminal sanctins and aims t reach a nn-punitive reslutin f a dispute. The c-peratin f the ffender, the victim and members f the cmmunity are required t secure restrative justice. The rle f victims are cnfined t that f rdinary witnesses and they ften feel alienated frm the prcess wrsened by factrs like repeated remands granted t accused, inadequate pre-trial cmmunicatin with victim, pr investigatin and presentatin f the case by ver-wrked fficials. Sme statutry prvisins prmte victim participatin and sme aims at prtecting the victim Cnstitutinal criminal prcedure Cnstitutinal supremacy entails that it is nw pssible t have legislatin and cmmn law rules which cnflict with the Cnstitutin set aside. In the Bill f Rights: - the criminal prcedural prvisins usually have vertical peratin (i.e. state as pwer-wielder and the subject); - cnstitutinal criminal prcedural prvisins are usually stated negatively prhibiting the state frm infringing certain fundamental rights; - it is recgnised that mst rights are nt abslute and may be limited; - requires a strng and independent judiciary, whse judges may smetimes g against ppular sentiment in interpreting the Bill f Rights. Sectin 35 f Cnstitutin - Arrested, detained and accused persns (1) Everyne wh is arrested fr allegedly cmmitting an ffence has the right- t remain silent; t be infrmed prmptly- (i) (ii) f the right t remain silent; and f the cnsequences f nt remaining silent; nt t be cmpelled t make any cnfessin r admissin that culd be used in evidence against that persn; (d) t be brught befre a curt as sn as reasnably pssible, but nt later than - (e) (f) (i) 48 hurs after the arrest; r (ii) the end f the first curt day after the expiry f the 48 hurs, if the 48 hurs expire utside rdinary curt hurs r n a day which is nt an rdinary curt day; at the first curt appearance after being arrested, t be charged r t be infrmed f the reasn fr the detentin t cntinue, r t be released; and t be released frm detentin if the interests f justice permit, subject t reasnable cnditins. (2) Everyne wh is detained, including every sentenced prisner, has the right- t be infrmed prmptly f the reasn fr being detained; t chse, and t cnsult with, a legal practitiner, and t be infrmed f this right prmptly; t have a legal practitiner assigned t the detained persn by the state and at state expense, if substantial injustice wuld therwise result, and t be infrmed f this right prmptly;

3 CMP201-6 Page 3 f 51 (d) t challenge the lawfulness f the detentin in persn befre a curt and, if the detentin is unlawful, t be released; (e) t cnditins f detentin that are cnsistent with human dignity, including at least exercise and the prvisin, at state expense, f adequate accmmdatin, nutritin, reading material and medical treatment; and (f) t cmmunicate with, and be visited by, that persn's - (i) (ii) (iii) (iv) spuse r partner; next f kin; chsen religius cunsellr; and chsen medical practitiner. (3) Every accused persn has a right t a fair trial, which includes the right- t be infrmed f the charge with sufficient detail t answer it; (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) t have adequate time and facilities t prepare a defence; t a public trial befre an rdinary curt; t have their trial begin and cnclude withut unreasnable delay; t be present when being tried; t chse, and be represented by, a legal practitiner, and t be infrmed f this right prmptly; t have a legal practitiner assigned t the accused persn by the state and at state expense, if substantial injustice wuld therwise result, and t be infrmed f this right prmptly; t be presumed inncent, t remain silent, and nt t testify during the prceedings; t adduce and challenge evidence; nt t be cmpelled t give self-incriminating evidence; t be tried in a language that the accused persn understands r, if that is nt practicable, t have the prceedings interpreted in that language; nt t be cnvicted fr an act r missin that was nt an ffence under either natinal r internatinal law at the time it was cmmitted r mitted; nt t be tried fr an ffence in respect f an act r missin fr which that persn has previusly been either acquitted r cnvicted; t the benefit f the least severe f the prescribed punishments if the prescribed punishment fr the ffence has been changed between the time that the ffence was cmmitted and the time f sentencing; and () f appeal t, r review by, a higher curt. (4) Whenever this sectin requires infrmatin t be given t a persn, that infrmatin must be given in a language that the persn understands. (5) Evidence btained in a manner that vilates any right in the Bill f Rights must be excluded if the admissin f that evidence wuld render the trial unfair r therwise be detrimental t the administratin f justice. The presumptin f inncence Criminal prcedure des nt deal with the prsecutin f criminals, but f - suspects, generally referring t persns wh have nt yet been charged; and - accused, referring t persns wh have been charged. Due t the presumptin f inncence, every persn is regarded as inncent until prperly cnvicted by a curt f law. A persn may be mrally r factually guilty f a crime in the public s view, but that des nt mean that he will r can be prved t be legally guilty and nly legal guilt cunts. The accused d nt need t prve his inncence, the nus f prf rests n the prsecutin wh must prve his guilt beynd a reasnable dubt. If a single element is nt prved by the prsecutin, the accused cannt be cnvicted and can even be discharged at the end f the State s case. If the State des succeed in prving a prima facie case and the accused des nthing t disturb that case, prima facie prf may harden int prf beynd reasnable dubt and the accused may be cnvicted because there is nthing which prduces a dubt in the curt s mind

4 CMP201-6 Page 4 f 51 abut the guilt f the accused. If the accused can make the curt dubt reasnably that ne f the required elements has been prved, he must be acquitted. Even if the State s versin is mre prbable than the accused s, he will be acquitted if there is a reasnable pssibility that his versin may be true and it is nt even necessary fr the curt t believe the accused. The right t silence Related t the presumptin f inncence is the rule that an accused can never be frced t testify, als called his privilege against self-incriminatin. The Cnstitutin guarantees the right f every arrestee t remain silent and nt t be cmpelled t make a cnfessin r admissin which culd be used in evidence against him, as well as the right f every accused persn t remain silent and nt t testify during the prceedings. The interrelatedness f the presumptin f inncence and the right t silence is apparent in Sectin 35(3)(h) and was explred in: Zuma 1995 (4) BCLR 401 (A) Sectin 217(1)(ii) f the Criminal Prcedure Act requiring an accused, in certain circumstances, t prve that a cnfessin was nt freely and vluntarily made, was uncnstitutinal. Presumptin f inncence is the basis f the rule that the nus in criminal cases shuld always be n the State. If an accused is unrepresented, he shuld at all stages in the prcess be infrmed f his rights and ptins, as well as their implicatins, and he shuld nt be penalised fr exercising thse rights, therwise the rights in reality amunt t nthing. A persn wh exercises his right t silence at his trial shuld accrdingly nt be penalised fr the exercise f the right. N adverse inference shuld be drawn against his decisin nt t testify, fr 2 reasns: - there may be a multitude f reasns why he des nt wish t testify - n such cnclusin culd lgically be drawn t fill the gaps in the State case (if an element f a crime has nt been cvered by the State s prima facie case, the accused s silence can t fill that gap). Hwever, the accused s defence can be severely r fatally damaged by his silence if the State has prved a prima facie case against the accused and the accused has nt raised a reasnable dubt n any f the elements. The prima facie case hardens int sufficient evidence fr a cnvictin. This nly happens because the accused did nt disturb the State s case and nt because the silence f the accused added anything psitive t the State s case Accusatrial and inquisitrial prcedures, and a brief histry f Suth African criminal prcedure Parties Accusatrial Inquisitrial Judicial fficer Prsecutin Defence Judge s rle is that f a detached umpire, wh shuld never enter the arena f the fight between the prsecutin and the defence fr fear f his becming partial r lsing perspective because f the dust. The plice are the primary investigative frce. They pass the cllected evidence n t the prsecutin wh then becmes master f the prceedings (dminus litis). In curt, the trial takes the frm f a cntest between 2 theretically equal parties wh d the questining. Judge is the master f the prceedings in that he actively cnducts and even cntrls the search fr the truth by dminating the questining f witnesses and the accused. After arrest, the accused is questined primarily by the investigating judge, nt the plice. In the trial, the presiding judge des the questining, nt the cunsel fr the prsecutin r defence. Suth African criminal prcedure has basically been accusatrial, but there are inquisitrial elements (eg the prcedure f questining under Sectin 115 plea f nt guilty; part f Sectin 112 questining pursuant t a plea f guilty).

5 CMP201-6 Page 5 f Surces f the Suth African criminal prcedure - The Cnstitutin - The Criminal Prcedure Act 51 f 1977 ( CPA ) - Other legislatin - Cmmn-law rules - Case law 1.6. Remedies It is in sciety s interests that the plice shuld act lawfully and that meaningful cntrl shuld be exercised ver the actins f the executive, therefre the pwers f the authrities are subjected t limitatins. The rights f the suspect are maintained by a number f sanctins, such as: - criminal sanctins n the grund f assault; - rules f evidence regarding admissibility f admissins; - judicial criticism f plice actin; - newspaper reprting and editrial cmment; - internal disciplinary measures by the plice; - public prtest; - The writ f habeas crpus (r interdictum de liber hmine exhibend) An imprtant remedy t btain judicial review f plice actin and thus t prtect the subject against unlawful deprivatin f his liberty. The curt is asked fr a remedy that the respndent (Minister / chief warden) prduce the bdy f the detainee befre the curt at a certain date and time. This rder is cupled with a rule nisi that the respndent must shw reasn why the detainee shuld nt be released. Prima facie reasns fr believing that the detentin is wrngful must be alleged. - Civil actin fr damages An actin fr damages (eg n the grund f wrngful arrest, wrngful detentin, physical injury) is an example f delictual liability which may arise in the curse f the criminal prcess and which may be used by suspects t cmpensate them fr any abuse they may have suffered. - Interdict An rder f curt whereby a persn is prhibited frm acting in a certain way t limit r prevent harm r damage, it may even be btained where harm has nt yet ccurred but is threatening. - Mandamus It is a psitive rder that a functinary perfrm his duties (eg furnish the accused with prper particulars relating t the charges) and is the reverse f an interdict. - The Exclusinary Rule Sectin 35(5) f the Cnstitutin prvides that evidence btained in a manner that vilates any right in the Bill f Rights, must be excluded if the admissin f that evidence wuld render the trial unfair r be detrimental t the administratin f justice. The exclusin is, hwever, nt autmatic, but is cntingent n a finding that admissin wuld render the trial unfair and the curts thus have a discretin t exclude r admit it. It aims t deter unlawful plice cnduct in the pre-trial criminal prcedure by rendering inadmissible in a curt any evidence which was btained by state fficials by unlawful means. - Infrmal Remedies An infrmal way f btaining relief is t resist arrest r t escape frm unlawful custdy, being risky in practice. - Cnstitutinal mechanisms Varius mechanisms fr prmtin f the maintenance f human rights and legality as against verbearing state actin are cntained in the Cnstitutin.

6 CMP201-6 Page 6 f CRIMINAL COURTS OF THE REPUBLIC 2.1. Cnstitutinal Curt Seated in Jhannesburg and cnsisting f a Chief Justice, Deputy Chief Justice and 9 ther judges, it is the highest curt in all cnstitutinal matters. It may decide nly cnstitutinal matters t decide whether issues are cnstitutinal r nt. It must als cnfirm cnstitutinal decisins made by the Supreme Curt f Appeal, High Curt, etc befre they have frce. Sectin 167 f Cnstitutin - Cnstitutinal Curt (4) Only the Cnstitutinal Curt may decide disputes between rgans f state in the natinal r prvincial sphere cncerning the cnstitutinal status, pwers r functins f any f thse rgans f state; decide n the cnstitutinality f any parliamentary r prvincial Bill, but may d s nly in the circumstances anticipated in sectin 79 r 121; decide applicatins envisaged in sectin 80 r 122; (d) (e) 2.2. Superir Curts decide n the cnstitutinality f any amendment t the Cnstitutin; decide that Parliament r the President has failed t fulfil a cnstitutinal bligatin; r (f) certify a prvincial cnstitutin in terms f sectin The Supreme Curt f Appeal Seated in Blemfntein and cnsisting f a President, a Deputy President and the number f judges f appeal determined in terms an Act f Parliament, it decides appeals in any matter. It is the highest curt f appeal except in cnstitutinal matters and 3 t 5 judges usually hears a criminal appeal The High Curt Cnsists f 6 prvincial divisins, 3 lcal divisins and the High Curts f Bphuthatswana, Ciskei, Transkei and Venda. Lcal circuit divisins may als be instituted in all the divisins. A Judge President is appinted fr each divisin f the High Curt, except fr the High Curts f Ciskei, Transkei and Venda, and the number f judges differs fr each divisin Lwer Curts Any curt established under the prvisins f the Magistrates Curts Act The Magistrates Curt Instituted fr districts and cnsists f Chief Magistrates, Magistrates f District Curt Magistrates The Reginal Curts Instituted fr reginal divisins and cnsists f Reginal Curt Presidents r Reginal Curt Magistrates Peridical Curts Magistrates Curts which sit at regular intervals at places ther than the seats f fixed permanent district curts and perfrms the same functin in large and sparsely ppulated areas as circuit curts in the High Curt Jurisdictin Jurisdictin f Criminal Curts Appeal jurisdictin Jurisdictin in respect f ffences Territry Punishment Validity f the prvisins f any Act

7 CMP201-6 Page 7 f Appeal jurisdictin The Supreme Curt f Appeal Jurisdictin t hear and determine an appeal against any decisin f a high curt. Appeal autmatic - Leave t appeal must first be sught frm the High Curt. Sectin 333 f CPA - Minister may invke decisin f Appellate Divisin n questin f law Whenever the Minister f Justice has any dubt as t the crrectness f any decisin given by any superir curt in any criminal case n a questin f law, r whenever a decisin in any criminal case n a questin f law is given by any divisin f the Supreme Curt which is in cnflict with a decisin in any criminal case n a questin f law given by any ther divisin f the Supreme Curt, he may submit such decisin r, as the case may be, such cnflicting decisins t the Appellate Divisin f the Supreme Curt and cause the matter t be argued befre that Curt in rder that it may determine such questin f law fr the future guidance f all curts. Ex Parte Minister f Justice: In Re R v Bln 1941 AD 345 The Minister referred a questin f what degree f prf was required frm an accused when a statute stated that the nus was n the accused t the SCA and it held that it was the same as in a civil trial (discharge the nus n a balance f prbabilities) Prvincial divisins f the High Curt Jurisdictin t hear and determine appeals and reviews in respect f criminal matters emanating frm lwer curts. A full curt (ie, 3 judges) has appellate jurisdictin t hear an appeal frm a single judge s decisin f the High Curt, if the matter des nt require the attentin f the Supreme Curt f Appeal. Lcal divisins f the High Curt WLD has the same appellate jurisdictin as a prvincial divisin. The ther lcal divisins have n appellate jurisdictin Jurisdictin in respect f ffences The Supreme Curt f Appeal Act as curt f appeal nly, except in case f cntempt f curt = may impse sentence. Prvincial and lcal divisins f the High Curt Original jurisdictin in respect f all ffences. District curt Jurisdictin t try all crimes except treasn, murder and rape. Reginal curt Jurisdictin t try all crimes except treasn Jurisdictin in respect f ffences cmmitted n Suth African territry The Supreme Curt f Appeal Jurisdictin t hear an appeal against any judgment f a High Curt in Suth Africa. Prvincial divisins f the High Curt Original jurisdictin in respect f all ffences cmmitted within their respective areas. This rule has been extended in the fllwing respects: Hull 1948 (4) SA 239 (C): One divisin has jurisdictin t put int effect a suspended sentence impsed by anther divisin r Magistrates Curt.

8 CMP201-6 Page 8 f 51 Civil Aviatin Act: An ffence is deemed t have been cmmitted in any place the accused happens t be. Fairfield 1920 CPD 279: If an Act creates an ffence and cnfers jurisdictin merely n a lwer curt in respect f such ffence, a high curt is nt excluded frm hearing the trials. Sectin 111 f CPA: Empwers the Natinal Directr f Public Prsecutins t rder a trial in a curt within the area f a Directr f Public Prsecutins althugh the ffence was cmmitted within the area f anther directr. Sectin 22(3) f Act 32 f 1998 states nearly the same if it is in the interest f the administratin f justice. Lcal divisins f the High Curt Area f jurisdictin f each lcal divisin includes a number f magisterial districts. In the areas f jurisdictin f lcal divisins, the prvincial divisins have cncurrent jurisdictin. Reginal curts and district curts Summary trial Here the accused is charged in the Magistrates Curt and this curt itself decides whether he is guilty. Sectin 90 f the Magistrates Curt Act prvides that district r reginal curts have jurisdictin t hear trials in respect f ffences cmmitted within the district r reginal divisin. This principle has been extended as fllws: 4km Rule! 1. When a persn is charged with any ffence (d) cmmitted within the distance f 4km beynd the bundary f the district, r reginal divisin; r cmmitted in r n a vessel r vehicle n a vyage r jurney, any part wheref was perfrmed within a distance f 4km frm the bundary f the district r reginal divisin; r cmmitted n bard a vessel n a jurney upn a river within Suth Africa and such jurney r part theref was perfrmed in the district r reginal divisin r within 4km theref; r cmmitted n bard a vessel n a vyage within the territrial waters f Suth Africa and the said territrial waters adjin the district r reginal divisin; r (e) begun r cmpleted within the district r reginal divisin, such persn may be tried within the district r reginal divisin, as if he had been charged with an ffence cmmitted within the district r reginal divisin. This rule applies if it is an ffence under the cmmn law, and prbably als if it is an ffence in terms f statutry law perative in bth districts. This 4km rule nly applies within Suth Africa and nt t crimes cmmitted utside ur brder, but which fall within 4km f ur brders. 2. Where it is uncertain in which f several jurisdictins an ffence was cmmitted, it may be tried in any f such jurisdictins. 3. A district r reginal curt may try an ffence if the act, missin r even an element f the ffence was cmmitted in that district r reginal divisin. 4. Any persn charged with theft r receiving prperty knwing it t be stlen, etc, may be tried in any district r reginal divisin, where he had part r all f the prperty in his pssessin. 5. A persn charged with kidnapping, child-stealing r abductin may be tried in any district r reginal divisin thrugh r in which he cnveyed, cncealed r detained the victim. 6. A statutry prvisin may grant a Magistrates Curt jurisdictin in respect f an ffence cmmitted beynd the lcal limits f the district r reginal divisin.

9 CMP201-6 Page 9 f Where an accused is alleged t have cmmitted several ffences in different districts falling within the Directr f Public Prsecutin s area, he may rder in writing that all the matters be heard in ne Magistrates Curt in his area. 8. If there are a number f accused, the Directr f Public Prsecutins may rder in writing that an accused be tried in a district r reginal divisin in his area, t avid excessive incnvenience r disturbance f a particular area. 9. In terms f Sectin 110(1) f the CPA, if a persn is, as far as territrial jurisdictin is cncerned, wrngly charged befre a particular curt, and fails t bject timeusly, such curt will acquire jurisdictin. 10. In terms f Sectin 18 f the Aviatin Act, if an ffence is cmmitted n a Suth African plane, the ffence is deemed fr purpses f criminal jurisdictin t have been cmmitted in any place the accused happens t be. 11. In terms f Sectin 111 f the CPA, the Natinal Directr f Public Prsecutins has the pwer t mve a trial frm ne Directr f Public Prsecutins area t anther. Preparatry examinatin There is a hearing in which the accused is nt tried and the Magistrate des nt judge whether he is guilty r nt guilty, but nly hears the evidence which is then sent t the Directr f Public Prsecutins wh will decide whether t institute a prsecutin r nt and in which curt Jurisdictin in respect f ffences cmmitted utside Suth Africa General Rule: Suth African curts will nly exercise jurisdictin with regard t ffences cmmitted n Suth African territry. There are hwever a number f exceptins: High Treasn (eg Suth African citizen resident in a freign cuntry and jins enemy army in wartime); Theft cmmitted in freign cuntry, but the accused has the stlen prperty in Suth Africa (ie a cntinuing ffence); Offences n ships (ie territrial waters are cnsidered part f that state); Offences n aircraft: Offence n Suth African aircraft Sectin 18 f the Aviatin Act, if an ffence is cmmitted n a Suth African plane, the ffence is deemed fr purpses f criminal jurisdictin t have been cmmitted in any place the accused happens t be. Offence utside Suth Africa n nn- Suth African aircraft Lands in Suth Africa with ffender still n bard ; r Principal place f business r permanent residence f lessee f aircraft is in Suth Africa; r Offender is present in Suth Africa. Offences cmmitted n territry subsequently annexed by Suth Africa; Offences cmmitted n Suth African aircraft Sectin 18 f Aviatin Act; Offences cmmitted by Suth African citizens in Antarctica falls within the jurisdictin f the Cape Twn Magisterial District; Offences deemed t be cmmitted in Republic regardless where the accused happens t be (eg Crrectinal Services Act unauthrised access t any cmputer f the Department f Crrectinal Services, Suth Africa has jurisdictin even if the ffence was cmmitted utside Suth Africa and the cmputer r accused was in Suth Africa) Hwever, an accused s mere presence des nt always settle the matter: when an accused is illegally abducted frm a freign state by agents f the Suth African authrities and subsequently handed ver t the Suth African plice, the curt befre which such abducted persn is arraigned has n jurisdictin t try such persn. Embassies - Diplmats remain subject t the jurisdictin f their hme states.

10 CMP201-6 Page 10 f Punishment The Supreme Curt f Appeal, and the High Curt The Supreme Curt f Appeal will nly impse a sentence (any lawful sentence) as a curt f first instance where it cnvicts a persn f cntempt f curt. The Supreme Curt f Appeal, a prvincial divisin r the WLD can nly impse sentence that culd have been impsed by the curt f first instance. The fllwing sentences may be impsed: Reginal curts Imprisnment (including fr life); Peridical imprisnment; Declaratin as habitual criminal; Cmmittal t a treatment centre; Fine; Crrectinal supervisin; and Imprisnment frm which persn may be placed under crrectinal supervisin. The fllwing sentences may be impsed: District curts Imprisnment nt exceeding 15 years; Peridical imprisnment; Declaratin as habitual criminal; Cmmittal t treatment centre; Fine nt exceeding R 300,000 (subject t change by Minister); Crrectinal supervisin; and Imprisnment frm which persn may be placed under crrectinal supervisin. Only the fllwing sentences may be impsed: Imprisnment nt exceeding 3 years; Peridical imprisnment; Cmmittal t a treatment centre; Fine nt exceeding R 60,000 (subject t change by Minister); Crrectinal supervisin; and Imprisnment frm which persn may be placed under crrectinal supervisin Validity f the prvisins f any Act Sectin 110 f the Magistrates Curt Act prvides that n Magistrates Curt shall be cmpetent t prnunce upn the validity f any law r cnduct f the President. If an accused pleads nt guilty in a lwer curt and his defence is based n the alleged invalidity f a prvincial rdinance r a prclamatin issued by the President, the accused must be cmmitted fr summary trial befre a superir curt having jurisdictin. 3. PROSECUTING CRIME 3.1. Intrductin - Mst states d nt adhere t the principle f cmpulsry prsecutin. - Prsecuting authrities are vested with a discretin whether t prsecute r nt, but the victim may still prceed in a persnal capacity against the alleged perpetratr (private prsecutin). - Mst states perceive the cmmissin f a crime as a vilatin f the public interest and punishment is sught n behalf f sciety. A prsecutin, hwever, des nt deprive the injured party f any civil remedies he might have and the victim might still seek t recver his lsses in a civil curt. - A cnvictin r acquittal will, therefre, nt bar a civil actin fr damages, except where the criminal curt has rdered the cnvicted accused t pay cmpensatin t the cmplainant r t return stlen prperty cannt be cmpensated twice in respect f ne and the same lss.

11 CMP201-6 Page 11 f Structure and cmpsitin f the prsecuting authrity Cnstitutinal prvisins and legislative framewrk Sectin 179 f Cnstitutin - Prsecuting authrity (1) There is a single natinal prsecuting authrity in the Republic, structured in terms f an Act f Parliament, and cnsisting f - a Natinal Directr f Public Prsecutins, wh is the head f the prsecuting authrity, and is appinted by the President, as head f the natinal executive; and Directrs f Public Prsecutins and prsecutrs as determined by an Act f Parliament. (2) The prsecuting authrity has the pwer t institute criminal prceedings n behalf f the state, and t carry ut any necessary functins incidental t instituting criminal prceedings. (3) Natinal legislatin must ensure that the Directrs f Public Prsecutins - are apprpriately qualified; and are respnsible fr prsecutins in specific jurisdictins, subject t subsectin (5). (4) Natinal legislatin must ensure that the prsecuting authrity exercises its functins withut fear, favur r prejudice. (5) The Natinal Directr f Public Prsecutins - must determine, with the cncurrence f the Cabinet member respnsible fr the administratin f justice, and after cnsulting the Directrs f Public Prsecutins, prsecutin plicy, which must be bserved in the prsecutin prcess; (d) must issue plicy directives which must be bserved in the prsecutin prcess; may intervene in the prsecutin prcess when plicy directives are nt cmplied with; and may review a decisin t prsecute r nt t prsecute, after cnsulting the relevant Directr f Public Prsecutins and after taking representatins within a perid specified by the Natinal Directr f Public Prsecutins, frm the fllwing: (i) (ii) (iii) The accused persn. The cmplainant. Any ther persn r party whm the Natinal Directr cnsiders t be relevant. (6) The Cabinet member respnsible fr the administratin f justice must exercise final respnsibility ver the prsecuting authrity. (7) All ther matters cncerning the prsecuting authrity must be determined by natinal legislatin. Parliament passed the Natinal Prsecuting Authrity Act, 32 f 1998 ( NPAA ), in rder t give effect t the prvisins f Sectin 179 f the Cnstitutin. Any reference in any law t an Attrney-General r Deputy Attrney-General shall be cnstrued as a reference t a Directr f Public Prsecutins r a Deputy Directr f Public Prsecutins. Yengeni 2006 (1) SACR 405 (T) The accused attended a pre-trial meeting with the Natinal Directr f Public Prsecutins and Minister f Justice and Cnstitutinal Develpment and it was agreed between them that, shuld the accused plead guilty, the state wuld nt seek a custdial sentence. At trial, a custdial sentence was, hwever, impsed. This case serves as cnfirmatin that the Cnstitutin guarantees the prfessinal independence f the Natinal Directr f Public Prsecutins and every prfessinal member f his staff ensuring freedm frm any interference in their functins by the pwerful, well-cnnected, the rich and peddlers f plitical influence Structure and cmpsitin f the single natinal prsecuting authrity The Prsecuting Authrity cmprises f the: Natinal Directr f Public Prsecutins ( NDPP ); Deputy Natinal Directrs f Public Prsecutins ( DNDPP ); Directrs f Public Prsecutins ( DPP ); Deputy Directrs f Public Prsecutin ( DDPP ); and Prsecutrs.

12 CMP201-6 Page 12 f 51 The ffice f NDPP cnsists f: the NDPP, wh is the head f and cntrls the ffice; n mre than 4 DNDPPs; investigating directrs and special directrs; and ther members f the prsecuting authrity assigned t the ffice f NDPP. Offices f the Natinal Single Prsecuting Authrity are established at seats f the High Curt and cnsist f: a DPP r DDPP, wh is head f and cntrls the ffice; DDPPs; prsecutrs; and persns appinted n an ad hc basis n accunt f their qualificatins and experience t perfrm services in specific cases The pwer t institute and cnduct criminal prceedings Sectin 20 f the NPAA, 32 f 1998 (1) The pwer, as cntemplated in Sectin 179(2) and all ther relevant sectins f the Cnstitutin, t institute and cnduct criminal prceedings n behalf f the State; carry ut any necessary functins incidental t instituting and cnducting such criminal prceedings; and discntinue criminal prceedings, vests in the prsecuting authrity and shall, fr all purpses, be exercised n behalf f the Republic The authrity and hierarchy f pwer t institute criminal prceedings Sectin 20 f the NPAA, 32 f 1998 (2) Any Deputy Natinal Directr shall exercise the pwers referred t in subsectin (1) subject t the cntrl and directins f the Natinal Directr. (3) Subject t the prvisins f the Cnstitutin and this Act, any Directr shall, subject t the cntrl and directins f the Natinal Directr, exercise the pwers referred t in subsectin (1) in respect f- the area f jurisdictin fr which he r she has been appinted; and any ffences which have nt been expressly excluded frm his r her jurisdictin, either generally r in a specific case, by the Natinal Directr. (4) Subject t the prvisins f this Act, any Deputy Directr shall, subject t the cntrl and directins f the Directr cncerned, exercise the pwers referred t in subsectin (1) in respect f- the area f jurisdictin fr which he r she has been appinted; and such ffences and in such curts, as he r she has been authrised in writing by the Natinal Directr r a persn designated by the Natinal Directr. (5) Any prsecutr shall be cmpetent t exercise any f the pwers referred t in subsectin (1) t the extent that he r she has been authrised theret in writing by the Natinal Directr, r by a persn designated by the Natinal Directr. (6) A written authrisatin referred t in subsectin (5) shall set ut- the area f jurisdictin; the ffences; and the curt r curts, in respect f which such pwers may be exercised The NDPP and DNDPP The President appints the NDPP and may, after cnsultatin with the Minister f Justice and the NDPP, appint n mre than 4 DNDPPs.

13 CMP201-6 Page 13 f 51 Any persn t be appinted as NDPP r DNDPP must pssess qualificatins that wuld entitle him t practice in all curts in the Republic and must be a fit and prper persn. The NDPP must be a Suth African citizen. The NDPP shall hld ffice fr a nn-renewable term f 10 years, but must vacate ffice n attaining 65. The DNDPP must als vacate his ffice n attaining the age f 65, but is nt subject t the 10 year perid which applies in respect f the NDPP. The President may, hwever, direct that the NDPP r DNDPP be retained fr a further perid nt exceeding 2 years. The President may prvisinally suspend the NDPP r a DNDPP pending an enquiry, whereafter they may be remved frm ffice fr miscnduct; cntinued ill health; incapacity t carry ut his duties; n accunt f n lnger being a fit and prper persn. Pwers, functins and duties f the NDPP and DNDPP NB!! Any DNDPP may exercise any f the functins r duties f the NDPP which he has been authrised t perfrm. The pwers and functins f the NDPP are set ut in Sectin 22 f the NPAA. The NDPP, as head f the prsecuting authrity, shall have authrity ver the exercising f all pwers and perfrmance f all duties cnferred n any member f the prsecuting authrity by the Cnstitutin and he - must determine prsecutin plicy and issue plicy directives; may intervene when plicy directives are nt cmplied with; may review a decisin t prsecute r nt t prsecute, after cnsultatin with the relevant DPP. Where an ffence was cmmitted whlly r partially within the area f jurisdictin f ne DPP, the NDPP can direct that it be investigated and tried within the area f anther DPP. The NDPP must frame a cde f cnduct which members f the prsecuting authrity must cmply with. This has been dne and is knwn as The Cde f Cnduct fr Members f the Prsecuting Authrity. The NDPP may authrise any cmpetent persn in the emply f public service t cnduct prsecutins, subject t is cntrl and directin. The NDPP has the pwer t institute and cnduct a prsecutin in any curt in the Republic in persn. Prsecutin plicy and issuing f plicy directives The NDPP - with cncurrence f the Minister f Justice and after cnsulting the DPPs - determine prsecutin plicy. The NDPP must als issue plicy directives and he may intervene where these are nt bserved. Accuntability t Parliament The prsecuting authrity is accuntable t Parliament and the NDPP - must submit a reprt annually t the Minister f Justice; may, at any time, submit a reprt t the Minister r Parliament with regard t any matter relating t the prsecuting authrity if he deems it necessary. Ministerial respnsibility ver the prsecuting authrity The Minister has the final respnsibility ver the prsecuting authrity, but ministerial cntrl f r interventin in the decisins f the NDPP is nt prvided fr. T enable the Minister t exercise his final respnsibility ver the prsecuting authrity, the NDPP shall, at the request f the Minister: furnish the Minister with infrmatin r a reprt with regard t any case, matter r subject dealt with by the NDPP r DPP in the exercise f their pwers, the carrying ut f their duties and the perfrmance f their functins;

14 CMP201-6 Page 14 f The DPPs prvide the Minister with reasns fr any decisin taken by a DPP in the exercise f his pwers, the carrying ut f his duties and the perfrmance f his functins; furnish the Minister with infrmatin with regard t the prsecuting plicy; furnish the Minister with infrmatin with regard t the plicy directives; submit the reprts; arrange meetings between the Minister and members f the prsecuting authrity. Fr purpses f certain specified statutry ffences, n prsecutin may be instituted withut the written authrity f the NDPP. The President, after cnsulting with the Minister f Justice and the NDPP, may appint a DPP at the seat f every High Curt f the Republic. Qualificatins fr appintment as DPP are the same as thse fr appintment f NDPP, but a DPP, like the DNDPP, des nt have t be a Suth African citizen. A DPP must vacate ffice at the age f 65, but may, like the DNDPP, be re-appinted fr a perid nt exceeding 2 years. Suspensin and remval f a DPP must be dealt with as if he were the NDPP. A DPP reprts t the NDPP in the fllwing 3 situatins: A DPP must annually, nt later than 1 March, submit t the NDPP a reprt n all his activities during the previus year; The NDPP may at any time request a DPP t submit a reprt n with regard t a specific activity relating t his pwers, duties r functins; A DPP may, at any time, submit a reprt t the NDPP with regard t any matter relating t the prsecuting authrity. Pwers, functins and duties f a DPP and a DDPP NB!! A DPP has, in respect f the area fr which he has been appinted, the pwer t - institute and cnduct criminal prceedings and t carry ut functins incidental theret; supervise, direct and c-rdinate the wrk and activities f all DDPPs and prsecutrs in the ffice f which he is the head; supervise, direct and c-rdinate specific investigatins; carry ut all duties and perfrm all functins assigned t him under any law which is in accrdance with the Cnstitutin. Subject t the directins f the NDPP, a DPP will be respnsible fr the day t day management f the DDPP and prsecutrs under his cntrl. Where a DPP is - cnsidering the institutin r cnducting f a prsecutin fr an ffence; and is f the pinin that a matter cnnected with r arising ut f the ffence requires further investigatin, Prsecutrs the DPP may request the prvincial cmmissiner f plice fr assistance in the investigatin. A DPP has authrity t prsecute an appeal in any curt in the Republic. Prsecutrs shall be appinted n the recmmendatin f the NDPP r a member f the prsecuting authrity designated fr that purpse and may be appinted t the ffice f the NDPP; ffices f the prsecuting authrity at the seat f each High Curt; investigating directrates; and lwer curts in the Republic. Pwers, duties and functins f prsecutrs A prsecutr shall exercise the pwers, carry ut the duties and perfrm the functins assigned t him and can nly exercise pwers lawfully given and has a duty nt t act arbitrarily. He must act with bjectivity and prtect the public interest.

15 CMP201-6 Page 15 f The prsecuting authrity and the judiciary Curts have n rare ccasins expressed their disapprval f the fact that a prsecutin is instituted. Hwever, curts can in principle nt interfere with a bna fide decisin f the prsecuting authrity. It is irregular t d s. Curts can at mst impse a lenient sentence reflecting their pinin that the prsecutin was unwarranted in the case f a cnvictin. If cnvinced f the triviality f the case, the curt may acquit the accused. The acquittal is based n the substantive criminal law principle de minimis nn curat lex (the law is nt cncerned with trivialities). It is a clear indicatin that there shuld never have been a prsecutin in the first place On the whle, the curts are reluctant t cmment n the discretin exercised by the prsecuting authrity, because it lies within its authrity t prsecute and nce an accused is n trial, he will have the fullest pprtunity t put his defence t the curt. The prsecuting authrity s discretin t prsecute des nt, hwever, fall beynd the jurisdictin f the curts and it can intervene when the discretin is exercised imprperly. Discretin may be reviewed, fr example, where mala fides can be prved, r where it can be prved that the prsecuting authrity never applied its mind t the matter r acted frm an ulterir mtive Extrardinary pwers f the DPP A DPP has, in certain limited circumstances, the pwer t detain a prspective State witness fr a perid f up t 72 hurs withut a judge having s rdered. A State witness can be detained fr a lnger perid n the basis f an rder given by a judge in chambers in cnsequence f a DPPs applicatin Cntrl ver lcal prsecutrs Lcal prsecutrs are as a rule permitted t exercise their wn discretin in deciding whether t prsecute. It is impssible fr a DPP t have full knwledge f each and every criminal matter in his jurisdictin. There are at least the fllwing frmal and infrmal ways in which a DPP can direct and cntrl the decisins f public prsecutrs in his jurisdictin: DPPs issue circulars t their prsecutrs prviding guidelines in the exercise f their discretin with regard t certain types f cases; A DPP may direct his prsecutrs nt t prsecute in respect f certain ffences withut his prir apprval. A prsecutin instituted cntrary t such an instructin wuld be null and vid; Smetimes statutry prvisins require that in respect f certain ffences n prsecutin may be instituted withut the written authrity f the DPP; Cmplaints made t a DPP by members f the public and which relate t sme decisin taken by a lcal public prsecutr may draw the attentin f the DPP t a specific case. The DPP may then call fr the plice dcket and require the lcal prsecutr t advance reasns fr the decisin taken by him; Prsecutrs shuld refer difficult, sensitive r brderline cases t the DPP requesting him t take the final decisin; Only a prsecutr authrised theret in writing by the NDPP may negtiate and enter int a plea and sentence agreement Prsecutin and the plice The plice d in practice exercise a discretin f their wn and ften refrain frm bringing trivial matters t the attentin f the prsecutr. All investigatins cmpleted by the plice fr the purpses f a prsecutin must be submitted t the prsecuting authrities as the plice d nt have the final say whether a prsecutin shuld be instituted. The final decisin rests with the DPP cncerned r his lcal public prsecutrs. The separatin between fficials wh investigate crime and thse wh decide t prsecute and actually d prsecute crime is an imprtant ne. It prmtes bjectivity and prvides the criminal justice system with a prcess in terms f which the results f a plice investigatin can be evaluated independently befre the step f instituting a prsecutin is taken.

16 CMP201-6 Page 16 f The prsecutin, the public and reprting crime There is n general legal duty n members f the public t reprt crime. A legal duty exists nly in certain exceptinal instances. The nly cmmn law example is that a legal duty rests n all thse wh we allegiance t the State t prvide infrmatin n acts f high treasn. Certain statutry prvisins impse such a legal duty, fr example the bligatin t reprt crrupt transactin and child prngraphy. Members f the public may at times, fr fear f reprisals, be mst reluctant t reprt the activities f criminals. The criminal justice system makes use f the infrmer s privilege t meet this situatin. The identity f the private individual wh has secretly given infrmatin t the plice cncerning the cmmissin f a crime may as a rule nt be disclsed in a curt f law and the cntents f his cmmunicatin enjy a similar prtectin. The purpse f the privilege is t encurage infrmatin as t the cmmissin f crime by placing the infrmer in a cnditin f safety. A further methd aimed at encuraging a member f the public t cme frward and reprt crime and ultimately t testify if necessary, is the witness prtectin system. The mere fact that an individual is under n general duty t reprt crime des nt mean that he may in all instances lawfully refuse t c-perate nce it is likely that he culd be a ptential State witness The prsecutin as dminus litis The prsecutin can be described as dminus litis (master f the case) and it merely means that the prsecutin can d what is legally permissible t set criminal prceedings in mtin, such as determining the charges and the date and venue f the trial. A measure f cntrl by the curts ver decisins taken by the prsecutin remains essential. Fr example: The prsecutin may nt prceed against the accused in a piecemeal fashin by bringing successive prsecutins n different charges in relatin t ne brad incident; Althugh the prsecutin can determine the numerical rder in which several accused are named in the charge, the curt may, in the interest f justice, right and fairness, rder the sequence in which the accused present their evidence be varied; If a prsecutr, after an applicatin by him fr pstpnement f the trial has been rightly rejected by the curt, refuses t adduce evidence r t clse the State s case, the judicial fficer will cntinue with the prceedings as if the prsecutr had indeed clsed the State s case The discretin t prsecute A prsecutr has a duty t prsecute if there is a prima facie case and n cmpelling reasn fr refusal - Is there a reasnable prspect f success? The prsecutr must ascertain whether there is a reasnable and prbable cause fr prsecutin and at trial be able t furnish prf beynd a reasnable dubt. In exercising his discretin, the prsecutr must respect the individual s right nt t be harassed by a prsecutin that has n reasnable prspect f success. Occasinally there might be gd grunds fr refusing t prsecute despite the fact that a prima facie case exists. Such grunds may be the triviality f the ffence; the advanced age r very yung age f the accused; r the tragic persnal circumstances f the accused (ie a father wh has thrugh his negligent driving caused the death f his yung children). Once a prsecutr is satisfied that there is sufficient evidence t prvide reasnable prspects f a cnvictin, a prsecutin shuld nrmally fllw. When cnsidering whether r nt t prsecute, prsecutrs shuld cnsider all relevant factrs, including: The nature and seriusness f the ffence The seriusness f the ffence, taking int accunt the effect f the crime n the victim, the manner in which it was cmmitted, the mtivatin fr the act and the relatinship between the accused and the victim. The nature f the ffence, its prevalence and recurrence, and its effect n public rder and mrale.

17 CMP201-6 Page 17 f 51 The ecnmic impact f the ffence n the cmmunity, its threat t peple r damage t public prperty, and its effect n the peace f mind and sense f security f the public. The likely utcme in the event f a cnvictin, having regard t sentencing ptins available t the curt. The interests f the victim and the brader cmmunity The attitude f the victim f the ffence twards a prsecutin and the ptential effects f discntinuing it. The need fr individual and general deterrence, and the necessity f maintaining public cnfidence in the criminal justice system. Prsecutin pririties as determined frm time t time, the likely length and expense f the trial and whether r nt a prsecutin wuld be deemed cunterprductive The circumstances f the ffender The previus cnvictins f the accused, his criminal histry, backgrund, culpability and persnal circumstances, as well as ther mitigating r aggravating factrs. Whether the accused has admitted guilt, shwn repentance, made restitutin r expressed willingness t c-perate with the authrities in the investigatin r prsecutin f thers. Whether the bjectives f criminal justice wuld be better served by implementing nn-criminal alternatives t prsecutin, particularly in the case f juvenile ffenders and less serius matters. Whether there has been an unreasnably lng delay between the date when the crime was cmmitted, the date n which the prsecutin was instituted and the trial date, taking int accunt the cmplexity f the ffence and the rle f the accused in the delay. The relevance f these factrs and the weight t be attached t them will depend n the circumstances f each case. When exercising the discretin: The plice and prsecuting authrity shuld nt knwingly allw a pattern f cntravenetin f a certain statute t develp and then, mst unexpectedly, arrest and prsecute; The DPP shuld nt exercise this discretin in a discriminatry way. The distinctin between withdrawing a charge and stpping a prsecutin NB!! The prsecuting authrity has the discretin t withdraw a charge befre the accused has pleaded. Hwever, the accused is nt entitled t a verdict f acquittal, as he may again be prsecuted if new evidence is discvered. A prsecutr may withdraw a charge withut the cnsent f his DPP as the DPP, if dissatisfied with the withdrawal, may charge the accused afresh. A DPP may, at any time after the accused has pleaded, but befre cnvictin, stp the prsecutin in respect f that charge and then the accused is entitled t an acquittal. The accused can later successfully rely n a plea f autrefis acquit (previus acquittal). A public prsecutr may, hwever, nt stp a prsecutin withut the cnsent f the DPP Prescriptin f the right t prsecute The right t institute a prsecutin fr any ffence shall, unless sme ther perid is expressly prvided fr in law, lapse after the expiry f a perid f 20 years frm the time the ffence was cmmitted. The fllwing crimes have n prescriptin perid: Murder; Treasn cmmitted when the Republic is in a state f war; Rbbery, if aggravating circumstances were present; Kidnapping; Child-stealing; Rape; Gencide, crimes against humanity and war crimes.