2 The investigation of crime

2.1 Introduction
Study: Section 205 of the Constitution. The South African Police Service is primarily responsible for the
investigation of crime.

In this study section, you will be introduced to some of the investigative methods authorised by law. The
focus will be on the provisions of the CPA, although legislation applicable to specific other fields may
provide additional or similar powers.

2.2 Search and seizure

2.2.1 Introduction: Constitutional background

Study: Section 14 of the Constitution.

The Constitutional Court characterises the right to privacy as lying on a continuum - the more a person
interrelates with the world, the more the right to privacy attenuates (becomes weaker). (Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd; In re Hyundai
Motor Distributors (Pty) Ltd v Smit 2001 (1) SA 545 (CC) at para 15, relying on Bernstein v Bester
1996 (2) SA 751 (CC)). The right to privacy, however, continues to exist outside the inner sanctum of the
person and the home. In this regard the court in Hyundai (above) held as follows (at para [16]):

Thus, when people are in their offices, in their cars or on mobile telephones, they still retain a right
to be left alone by the State unless certain conditions are satisfied. Wherever a person has the ability
to decide what he or she wishes to disclose to the public and the expectation that such a decision
will be respected is reasonable, the right to privacy will come into play.

The lawfulness of a search and seizure operation is dependent on the citizen’s reasonable expectation
of privacy. Regulated business possesses a more attenuated (weaker) right to privacy, more so if the
business is public, closely regulated and potentially hazardous to the public. It may be acceptable if
legislation provides for periodic regulatory inspection of premises, as a prior warrant could frustrate the
objectives behind the search. The courts will, however, not uphold the constitutionality of legislation
generally not requiring a search warrant for searches of a private home, especially if there is no urgency.
It seems that the Constitutional Court is of the view that the protections offered by the CPA are adequate
to protect individual liberties in respect of searches and seizures (Magajane v Chairperson, North West
Gambling Board 2006 (2) SACR 447; Gaertner v Minister of Finance 2014 (1) SA 442 (CC); Minister

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of Police v Kunjana 2016 (2) SACR 473 (CC)). The right to dignity may also be affected by search and
seizure operations.

Chapter 2 of the CPA provides for search and seizure operations. Section 19 of the CPA provides that
the provisions of Chapter 2 of the CPA shall not derogate from any other power conferred by any other
law regarding search and seizure. Numerous other pieces of legislation exist that provide for powers to
search and seize. The Cybercrimes Act, for instance, has extensive provisions in respect of computer
searches. Tax and customs laws and provincial gambling and liquor laws are further examples.

2.2.2 Items that may be seized by the state

Study: Section 20 of the CPA provides for the three categories of articles which may be seized by the
state.

2.2.3 Search with a warrant

Study: Section 21 of the CPA provides for the procedures in respect of search warrants. Look at the
different stages when warrants may be issued as well as the requirements that must be met for a search
warrant to be issued.

Generally, a search and seizure operation may only be conducted on the authority of a search and seizure
warrant. This requirement ensures enhanced protection of individuals against the state. Judicial officers
possess the qualities and skills for the proper exercise of this power, such as independence and the ability
to evaluate relevant information to make an informed decision as to whether a warrant is justified (Minister
for Safety and Security v Van Der Merwe 2011 (2) SACR 301 (CC) at para [38]).

Most warrants issued will be of a pre-trial type as contemplated in s 23(1)(a). The decision to issue a
warrant may be made only if the affidavit in support of the application for the search warrant contains the
following objective jurisdictional facts: (i) the existence of a reasonable suspicion that a crime has been
committed and (ii) the existence of reasonable grounds to believe that objects connected with the offence
may be found on the premises or persons intended to be searched (Van der Merwe above at para [39]).
The affidavit (written statement upon oath) in support of the application for a search warrant must be
properly signed and sworn to before a commissioner of oaths, as set out in the Justices of the Peace and
Commissioners of Oaths Act 16 of 1963. (Mogale v Minister of Safety and Security 2016 (2) SACR 682
(GP). Also see Malherbe v S 2020 (1) SACR 227 (SCA).

In Van Der Merwe (above), the Constitutional Court held that a search warrant can only be valid if it
complies with the common law intelligibility requirements - these requirements are:

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 [55] that a valid warrant is one that, in a reasonably intelligible manner:
(a) states the statutory provision in terms of which it is issued;
(b) identifies the searcher;
(c) clearly mentions the authority it confers upon the searcher;
(d) identifies the person, container or premises to be searched;
(e) describes the article to be searched for and seized, with sufficient particularity; and
(f) specifies the offence which triggered the criminal investigation and names the suspected offender.

[56] In addition, the guidelines to be observed by a court considering the validity of the warrants
include the following:
(a) the person issuing the warrant must have authority and jurisdiction;
(b) the person authorising the warrant must satisfy herself that the affidavit contains sufficient
information on the existence of the jurisdictional facts;
(c) the terms of the warrant must be neither vague nor overbroad;
(d) a warrant must be reasonably intelligible to both the searcher and the searched person;
(e) the court must always consider the validity of the warrants with a jealous regard for the searched
person’s constitutional rights; and
(f) the terms of the warrant must be construed with reasonable strictness.

In Goqwana v Minister of Safety and Security 2016 (1) SACR 384 (SCA) it was held as follows:
(i) that a search warrant should be addressed to a specifically named police official. It was said that
‘[i]t remains salutary … that at least one police official responsible for the search should
pertinently be identified in the actual search warrant’.
(ii) where the search relates to a statutory offence, as opposed to a common law crime, the warrant
should pertinently refer to the specific statute and the section or subsection thereof.
(iii) The affidavit in support of the warrant should accompany the warrant and be handed over
together with it if requested by the party affected by the search. This would expedite any court
application in which a person may wish to contend that his or her rights were adversely affected
by the search.

It is not necessary for the person whose rights are affected by the search to receive prior notice of it, as
there is a risk that they would remove or destroy the evidence (Thint (Pty) Ltd v NDPP, Zuma v NDPP
2008 (2) SACR 421 (CC)). Failure to obtain a search warrant in circumstances where there is sufficient
time for it to be obtained while no urgency exists will render a warrantless search illegal (Gumede v S
(800/ 2015) [2016] ZASCA 148). A search and seizure must be carried out in the least intrusive and
disruptive manner possible. The police may not disrupt business more than is necessary and may not act

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beyond the terms of the warrant (Beheersmaatschappij Helling I NV v Magistrate, Cape Town 2007
(1) SACR 99 (C)).

In terms of section 21 CPA, only a police official may be authorised by a search warrant to search. Warrants
authorising private individuals to search and seize are invalid (Ex Dimensions v Kruger 2004 (2) SACR
493 (T); Smit & Maritz Attorneys v Lourens 2002 (1) SACR 152 (W)). In Keating v Du Preez N.O. 2019
(1) SACR 396 (GP), however, the court considered the question of whether it is permissible for “outside
persons” (for example forensic investigators and computer experts) to be authorised to be present at a
search and seizure for the limited purpose of the expertise they bring. The court held at para [37] that one

must take a realistic approach to the issue while at the same time guarding against outsourcing the
functions and powers of the SAPS or allowing private individuals or entities to usurp such powers.
In an age where technology and expertise become increasingly specialised and significant bodies
of knowledge and expertise are developed in dedicated areas, it is unrealistic to expect the
investigative agencies of the State at any given time to possess all of the technical and other
expertise that may from time to time be necessary to conduct a successful investigation. It may well
happen that such expertise may reside outside of the State and under such circumstances, I can
think of no principled reason that offends the legal and constitutional order we live under that should
permit such expertise to go unused with all the attendant negative consequences that go with it.

The court concluded that there is nothing in the CPA that offends against the presence of private persons
at a search and seizure, provided (i) they are properly authorised to be there and (ii) their role is clearly
defined and does not relate to the actual execution of search and seizure activities (at para [39]). The court
referred to some considerations that should be placed before the authorising magistrate:
• Why is the presence of such persons, regard being had to the nature of the search and seizure
to be conducted, necessary?
• Whether such persons bring special expertise or knowledge to the search and seizure
operation, which knowledge and/ or expertise may not ordinarily reside within SAPS personnel;
• The clearly defined role that such persons are required to play in the search and seizure
operation;
• Under whose control and authority will such persons operate during the search and seizure
operation; and
• In what manner will the presence and assistance of such persons render the search more
effective and compliant and possibly reduce or limit the incursion into the privacy and other
rights of those who are the subject of the search? (at para [40])

Given these considerations, the following issues may be said to establish the validity of a search warrant
issued in terms of s 21 of the CPA:

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2.2.4 Searches without a warrant

Study: Section 22 CPA provides for warrantless searches in two specific circumstances.

It is imperative to understand the importance of the notion of “reasonable grounds” in this context, but
also in the context of many other criminal procedural issues. The following was held in Mkhutyukelwa v
Minister of Police (2789/ 2013) [2017] ZAECMHC 34 (8 August 2017):

[20] This means that there must be some objective facts on which the belief rests. There has to be
some form of investigation that would have as its purpose, the verification of the information. This
could not have been more aptly put than in the words of Lord Devlin in the case of Hussein, where
it was stated:

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking. ‘I
suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of
which the obtaining of the prima facie proof is the end.”

[21] Reasonable suspicion is the conditio sine qua non for a search without a warrant. Without
a reasonable suspicion or simply with subjective suspicion, a search without a warrant is simply
unlawful. The purpose of the search is the seizure of any article which, in terms of section 20
of the Act, is concerned in or is on reasonable grounds believed to be concerned in the
commission or suspected commission of an offence. There has to be information which
objectively leads to the conclusion that the article that is the object of the search is concerned
in or is on reasonable grounds believed to be concerned in the commission of an offence.

[22] Suspicion received further judicial attention in the case of Mabona and Another v Minister
of Law and Order and Others The court stated that:

“This is not to say that the information at his disposal must be of sufficiently high quality
and cogency to engender in him a conviction that the suspect is guilty. The section required
suspicion but not certainly. However, the suspicion must be based on solid grounds.
Otherwise, it will be flighty or arbitrary and not a reasonable suspicion’’.

Regarding warrantless searches with consent: “informed consent” must be obtained. See Buthelezi v
Minister of Police 2020 (2) SACR 21 (GJ), where it was held that, in circumstances where the suspect
was told by the police that he had to consent or suffer the consequences of an angry crowd that demanded
the police search his house, and where he had a right to be protected by the police from the crowd
threatening violence against him, consent had not been freely given and did not render the search lawful.
Also, see Piperdi v Minister of Police 2020 (1) SACR 572 (ECG)).

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Our courts have considered the “plain view doctrine” developed in US and Canadian jurisprudence to
the effect that, if items are displayed publicly in areas where the public generally has access to them and,
if the items appear to be evidence of a crime, the owner has little or no expectation of privacy and, in the
normal course of events, no prior judicial authorisation for the search is required. After analysing the plain
view doctrine, the court in Goldberg v DPP: Western Cape 2014 (2) SACR 57 (WCC) concluded (in
respect of a curio shop where ivory was found):
If I were to apply the plain view doctrine in the present case, I would conclude that the officials were
lawfully in the public area of the Gift Shop premises for making the enquiries contemplated in … the
Ordinance. When the required documents could not be produced, they were entitled to seize the
ivory which was in plain view. However, I do not think it is necessary to rely on a doctrine developed
elsewhere. It suffices, applying the principles of our own law, that there was no reasonable
expectation of privacy in relation to the items displayed in the shop; that the officials were entitled to
enter the public part of the premises to make enquiries pursuant to statutory provisions ….; and that
when the documents required by law could not be produced, they were entitled to arrest the appellant
and to seize the items on the statutory authority of s 23 of the CPA.

In Du Toit v Provincial Minister of Environmental Affairs and Development Planning: Western Cape
2019 (1) SACR 311 (WCC), the court also referred to the doctrine in respect of game and hunting rifles
that were visible in a motor vehicle. Environmental officers had lawfully set up a roadblock after suspecting
persons of illegal hunting. The officers used a flashlight to look into the vehicle. The court held that, since
the officers were lawfully where they were permitted to be, the use of artificial light did not automatically
constitute a search. The plain view rule is not limited to daytime hours. If a flashlight is used to see what
would be visible in daylight hours, such as objects in the back of a pick-up vehicle or the interior of a motor
vehicle, the items do not cease to be in plain view when the sun goes down. Also, see W Nortje
“Warrantless Search and Seizures by the South African Police Service: Weighing up the Right to Privacy
versus the Prevention of Crime” (2021) 36 PER).

Study: Section 23 CPA provides for the search of arrested persons without a warrant.
Study: Section 24 of the CPA provides for warrantless searches by private persons.
Study: Section 26 CPA provides for searches to obtain evidence.

Also, take note of the provisions of the South African Police Service Act:
 Section 13(6) (border control).
 Section 13(7) of the South African Police Service Act (cordoning off to restore public order). This
provision was declared unconstitutional and a “reading in” remedy was effected Residents,
Industry House v Minister of Police (CCT 136/20) [2021] ZACC 37.
 Section 13(8) of the South African Police Service Act (roadblocks).

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2.2.5 Decency requirement

Study: Section 29 of the CPA.

2.2.6 The use of force in effecting a search

Study: Section 27 of the CPA provides for forceful entry of property in certain circumstances. Look at the
so-called “no-knock clause”.

In Minister of Safety and Security v Gaqa 2002 (1) SACR 654 (C), the court used s 27 to allow the
surgical removal of a bullet from the leg of an alleged robber for ballistic testing to assist the police
investigation. Minister of Safety and Security v Xaba 2004 (1) SACR 149 (D) declined to follow Gaqa
and held that section 27 does not permit forced surgical removal of an object from the body of a person. It
is submitted that Xaba correctly sets out the legal position.

2.2.7 Consequences of an unlawful search and seizure operation

• A search based on an invalid search warrant may lead to the setting aside of the search warrant
and an order for the seized items to be returned to the person from whom they had been seized.
See Ivanov v North West Gambling Board [2012] ZASCA 92 and Ngqukumba v Minister of
Safety and Security 2014 (2) SACR 325 (CC) relating to the mandament van spolie as an
urgent remedy to restore possession. This is typically achieved by the affected party bringing a
High Court application.
• The court setting aside a warrant may, however, order the preservation of evidence (for example
that copies or mirror images be made and kept by the registrar of the high court), even if obtained
as a result of an invalid warrant. This is to enable the trial court to decide on the admissibility of
the evidence with reference to s 35(5) of the Constitution (Thint (Pty) Ltd v NDPP, Zuma v
NDPP 2008 (2) SACR 421 (CC); BK v Minister of Police 2020 (1) SACR 56 (WCC) (21 June
2019)). Also see Minister of Police v Stanfield, 2020 (1) SACR 339 (SCA)).
• It ultimately remains the duty of the trial court to determine the admissibility of the evidence
obtained as a result of an unlawful search with reference to section 35(5) of the Constitution
(Thint supra at para [64]).
- In S v Dos Santos 2010 (2) SACR 382 (SCA), the search warrant was issued by a regional
magistrate. In terms of section 1 of the CPA, the definition of a magistrate excludes a regional
magistrate. In terms of section 21(1) CPA, only a magistrate or a justice of the peace may
issue a pre-trial search warrant. The SCA held that the police did not act in flagrant disregard
for the appellant's constitutional rights. They sought judicial approval for their conduct in an
attempt to uphold the law. None of the police officers executing the warrant knew that it

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 suffered from a defect. The court held that to exclude the evidence simply because the wrong
magistrate had been inadvertently approached would run counter to the spirit and purport of
the Constitution.
- In Polonyfis v Minister of Police 2012 (1) SACR 57 (SCA), the validity of the search warrant
was challenged on four grounds, namely (1) the warrant did not indicate which sub-section of
section 20 of the CPA was applicable; (2) the address of the premises to be searched was
vaguely described in the warrant; (3) the searcher failed to exhibit an affidavit in support of
the warrant; and (4) the execution of the warrant was unlawful because the police seized
items that were not mentioned in the warrant. In respect of (1), it was held that all three sub-
sections of s 20 of the CPA were applicable in the specific case and that the magistrate
correctly did not limit the warrant only to one section. In respect of (2), the SCA held that a
technically wrong address did not invalidate a warrant if it otherwise described the premises
with sufficient particularity so that the police could ascertain and identify the place to be
searched. About (3), the court found that the appellant did not request a copy of the affidavit
from the police. Had he (or his attorney who was present during the search operation) done
so, the police would have indeed provided him with a copy. Regarding (4), the appellant
argued that the seizure of ashtrays, chairs, documents and other smaller items was not
permitted by the warrant and that this deemed the entire seizure invalid. The court found that,
although the warrant only permitted the seizure of gambling machines, money and tokens,
the execution of the warrant was not invalid, because the search did not result in an abuse of
power or a “gross violation” of the appellant’s rights. In any case, the high court by that time
had already ordered the return of the items not mentioned in the warrant (also see Tiry v S
[2021] 1 All SA 80 (SCA) (29 October 2020)).
- In S v Van Deventer 2012 (2) SACR 263 (WCC), the validity of a warrant issued in terms of s
74D of Income Tax Act 58 of 1962 was attacked on the ground that it was issued in terms of
the wrong statute. The court allowed the evidence seized in accordance with it, after taking
into consideration the following factors: that the documents seized constituted valuable
evidence of the existence and extent of income tax evasions and, as such, fell within the
ambit of the warrant; that the evidence was obtained without any compelled participation by
or conscription of appellants; that the violation of appellants’ right was technical and not
flagrant; that the officers executing the warrant acted in good faith; and that, if the evidence
would, in any event, have been discovered by lawful means, the excluding it would generally
be detrimental the o administration of justice (as summarised in Tiry (supra) at para [9]). See
also Oosthuizen v Magistrate for the District of Hermanus (8633/ 2020) [2020] ZAWCHC
138 (29 October 2020). For an excellent analysis of the operation of section 35(5) of the
Constitution in the context of search and seizure see the judgment of Van Zyl DJP in Ndlovu
v S 2021 (1) SACR 299 (ECG).

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 • The affected party may also institute a civil action for damages because of the infringement of
his/ her privacy and dignity (see for instance Minister of Safety and Security v Augustine 2017
(2) SACR 332 (SCA)). A civil action for damages may also be instituted where unlawfully seized
items were destroyed by the police (Minister of Police and SA Metal and Machinery 2015 (1)
SACR 107 (SCA)).
• A person who acts contrary to the authority of a search warrant or is not authorised by law to
search also commits a criminal offence (s 28(1) CPA).

2.2.8 Disposal of articles after search and seizure

Sections 30-36 of the CPA have detailed provisions regarding the manner of disposal of articles seized in
terms of the provisions of the CPA and the circumstances wherein these items may be declared forfeited
to the state. Upon seizure of such an article, the police may dispose of a perishable article “as the
circumstances may require” and with due regard to the interests of the persons whose rights are affected
(s 30(a)). If the article is stolen property or property suspected to be stolen, the police may deliver the
article to the person from whom, in the opinion of such police official, such article was stolen. This may
however only happen with the consent of the person from whom the property was seized. The person to
whom the property is delivered must further be warned to hold the article available for production at
resultant criminal proceedings (s 30(b)). In all other circumstances, the police must give the article a
distinctive identification mark and retain it in police custody or “make such other arrangements about the
custody thereof as the circumstances may require” (s 30(c); see, for instance, Macrae v S 2014 (2) SACR
215 (SCA); an interesting case dealing with a baboon seized by the police).

If no criminal proceedings are instituted in connection with an article held in police custody or if it appears
that the article is not required at the trial for evidentiary purposes or purposes of an order of court, the
article must be returned to the person from whom it was seized, if such person may lawfully possess it. If
the person may not lawfully possess the article, it must be returned to the person who may lawfully possess
it (s 31(1)(a)) If no person may lawfully possess such article or if the investigating officer reasonably does
not know of any person who may lawfully possess such article, the article is forfeited to the State (s
31(1)(b)). In Minister of Police v Stanfield 2020 (1) SACR 339 (SCA) the court held that the requirement
that no criminal proceedings were pending would not be satisfied merely by proof that no proceedings
were pending at the time of the institution of the application for return of the article. The applicant must go
further and establish that there was no reasonable likelihood of criminal proceedings being instituted in
connection with the article in the foreseeable future. The applicant bears the onus to show, on a balance
of probabilities, that there are no pending proceedings or no likelihood of proceedings being instituted, and
that the article will not be needed for the trial (at para [12]). The court found that an application for the
return of the article may be premature in cases where the article is required for the trial (at para [12]). Only

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if an applicant for the return of the property can discharge the onus described above, the police must show,
on a balance of probabilities, that they may not lawfully possess the article (at para [13]).

A similar scheme is followed in cases where criminal proceedings are instituted, and the accused pays an
admission of guilt fine (s 32).

If criminal proceedings are instituted and the article is required at trial for evidentiary purposes or an order
of the court, the items must generally be transferred to the relevant clerk of the court, if practicable to do
so (s 33(1) and (2)). At the conclusion of criminal proceedings, the presiding magistrate or judge must
make an appropriate disposal order in respect of an article transferred to court for evidentiary purposes.
The court may make the same orders along the line as in those cases where no criminal proceedings are
instituted as described above (s 34(1)). The court may hear evidence before making a disposal order (s
34(2)). If no such order was made upon the completion of the proceedings the presiding officer (or another
presiding officer) may make the order at any time after the conclusion of the proceedings (s 34(3). In Hume
v Directorate for Priority Crime Investigation 2022 (1) SACR 518 (GP) it was held that 34(3) affords a
remedy to a person in the applicant's position who seeks the recovery of property seized in terms of s 20
of the CPA.

The CPA also provides inconsiderable detail for forfeiture orders in respect of following upon a weapon,
instrument or other article by means whereof an offence was committed or which was used in the
commission of such offence (s 35(1)(a) In respect of certain types of offences the court may also make a
forfeiture order in respect of a vehicle, container or other article which was used for or in connection with
the commission of the offence or for the conveyance or removal of the stolen property (s 35(1)(b)).

Various other statutes such as the Drugs and Drug Trafficking Act 140 of 1992 also provide for the
forfeiture of property. The Prevention of Organised Crime Act 121 of 1998 (“POCA”) provides for the
“criminal” and “civil” forfeiture of property. It targets property as instrumentality of offences and the
proceeds of crime. The Asset Forfeiture Unit of The NPA focuses on the implementation of the POCA.
Also see Hume v Directorate for Priority Crime Investigation 2022 (1) SACR 518 (GP) which
considered the relationship between the provisions of the Criminal Procedure Act 51 of 1977 and common
law remedy of rei vindicatio. For a more detailed discussion of some cases on the topic see P du Toit
“Recent cases: Criminal procedure” 2022 South African Journal of Criminal Justice Vol 35 Issue 2 at 240-
245).

2.3 Interrogation of suspects and witnesses

The police may question witnesses, suspects and accused persons to obtain information regarding a
crime. Such persons must, however, be afforded their constitutional rights. In terms of section 35(1)(a)-(c)
of the Constitution everyone who is arrested for allegedly committing an offence has the right
(a) to remain silent;

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 (b) to be informed promptly (i) of the right to remain silent; and (ii) of the consequences of not
remaining silent;
(c) not to be compelled to make any confession or admission that could be used in evidence against
that person.
Suspects and accused persons should also be informed of the right to choose and consult with a legal
practitioner and be informed of this right promptly. They should have a legal practitioner assigned to the
detained person by the state and at state expense if substantial injustice would otherwise result and should
be informed of this right promptly. They must be given a reasonable opportunity to obtain the services of
a legal practitioner (section 35(2)(b) and (c) of the Constitution). Failure to inform the individual of these
rights or giving him/ her a reasonable opportunity to exercise the right may lead to the exclusion of the
evidence from a trial, such as a confession made during questioning.

S v Orrie 2005 (1) SACR 63 (C) extended the constitutional pre-trial rights afforded to arrested, detained
and accused persons to include suspects. In S v Sebejan 1997 (1) SACR 626 (W), it was held obiter
dictum that non-suspects may be questioned without any cautions or warnings, whereas suspects, even
in circumstances where answers to questions may have established innocence, should receive the benefit
of a caution or warning. Suspects are treated differently and entitled to certain protective cautions not
afforded to a mere witness. In several subsequent cases, the courts declined to follow Sebejan and Orrie
(see for instance S v Ndlovu 1997 (12) BCLR 1785 (N); S v Langa 1998 (1) SACR 21 (T) at 27b-c; S v
Ngwenya 1998 (2) SACR 503 (W); S v Mthetwa 2004 (1) SACR 449 (E); S v Khan 2010 (2) SACR 476
(KZP)). In S v Lachman 2010 (2) SACR 52 (SCA) the court left this question open (see in this regard
Zwane v S (426/ 13) [2013] ZASCA 165 (27 November 2013) at para [8]). If the police official questioning
an individual, however, has a reasonable apprehension that the person being questioned is involved in
the commission of the crime, such person should generally be informed of his/ her fundamental rights to
remain silent and to obtain legal representation (see Khan (above)). In S v Makhala 2022 (1) SACR 485
(SCA), the court held as follows:
[30] However, any such rights of a suspect cannot derive from s 35. Section 35 is concerned with
the rights of arrested, detained and accused persons. To be a suspect will ordinarily be the basis
for a person to be arrested, detained or accused. However, being a suspect does not, without more,
make a person one who is arrested, detained or accused. Hence, the rights of a suspect are not
recognised in s 35. It may be that these rights could fall within the scope of the right to security of
the person (s 12 of the Constitution), or more tenuously, the right to the protection of dignity (s 10
of the Constitution) or as an incident of the protections provided under the Judges’ Rules to
suspects, when deciding whether evidence of what they have said may be used in evidence at a
trial.
[31] I will assume, without deciding, that a suspect is entitled, before taking a step that may have
significant implications, to be informed of their right to silence and their right to consult a legal
practitioner. I will also assume, without deciding, that quite apart from s 35(5) of the Constitution,

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 the common law rule that excludes illegally obtained evidence continues to have application in
circumstances where s 35(5) is not of application because the right infringed is not a right in the
Bill of Rights.

2.4 Section 205 subpoenas

The police may question potential witnesses and obtain witness statements from them. As they are not
suspects, arrested, or detained persons, they do not have to be informed of the rights set out above. The
statements of witnesses will be filed in the police docket. What to do if a possible witness (who is not a
suspect or an accused person) refuses to cooperate with the police?

Study: Section 205 of the CPA provides the answer.

In Attorney-General Transvaal v Kader 1991 (4) SA 727 (A), the appellate division held that the term
“just excuse” goes beyond a legal excuse as based on matters of privilege, compellability and admissibility.
It would also amount to a "just excuse" if a witness were to find himself in circumstances in which it would
be humanly intolerable to provide the information. In Nel v Le Roux NO 1996 (3) SA 562 (CC), the court
found that an examinee was not an accused person for the purposes of the right to a fair trial, but that the
examinee was nonetheless entitled under the Constitution to have the proceedings conducted with
procedural fairness.

2.5 Ascertainment of bodily features of persons

Chapter 3 of the Criminal Procedure Act provides extensively for the ascertainment of bodily features of
different categories of persons. It deals with the powers of the police and other authorised persons in
respect of fingerprints, body prints, the bodily appearance of persons and blood and DNA samples.

An identification parade is often an important method for the investigation of an alleged crime. The
positive identification of a person is often the essence on which the prosecution’s case rests. Evidence
regarding identity is carefully scrutinized by the courts, because even an honest witness may make a
mistake that may lead to a great injustice. For example, various cases have been identified in the US
where persons who have been wrongly identified have been given the death sentence - an interesting
website that you may consult in this regard is [Link] The court will seek
guarantees for the reliability of an identification. Little value can be attached to an identification of an
accused in court (a so-called “dock identification”), as he/ she is standing in the dock anyway.

The proceedings relating to an identification parade are typically recorded on Form SAPS 329 which
provides for the ‘”rules” for identification parades. See in this regard S v Tanatu (ECJ 2004/036) [2004]

19
ZAECHC 35 (15 October 2004). Photo identification parades are also possible (S v Moti 1998 (2) SACR
245 (SCA); Van Willing v S (109/ 2014) [2015] ZASCA 52 (27 March 2015). Also see B Naude
‘Ensuring procedurally fair identification parades in South Africa’ 2015 South African Journal of Criminal
Justice Vol. 28, No. 2 at 188-203. A “characteristic or distinguishing feature” for purposes of the CPA
also covers the human voice and voice identification parades may also be held (Levack v Regional
Magistrate, Wynberg [2003] 1 All SA 22 (SCA)). In S v Huma 1995 (2) SACR 411 (W) it was held
that the taking of fingerprints was neither inhuman nor degrading and does not constitute a
contravention of a person’s dignity as protected and enshrined in the Constitution. In S v Orrie (above),
the court held that the

involuntary taking of a blood sample for the purposes of DNA profiling was both an invasion of
the subject’s right to privacy and an infringement, albeit slight, and of the right to bodily security
and integrity. To the extent, however, that the involuntary taking of a blood sample from an
accused for the purposes of compiling a DNA profile for use in criminal proceedings infringes
his/ her right to privacy, dignity and bodily integrity, […] the limitation clause in the Constitution
permits the limitation of these rights.

2.6 Traps and undercover operations

Study: Section 252A of the CPA provides for law enforcement officers and other authorised persons to
make use of a trap or engage in an undercover operation to detect, investigate or uncover the commission
of an offence or prevent the commission of any offence.

A trap is defined in S v Malinga 1963 (1) SA 692 (A) as “a person who, with a view to securing the
conviction of another, proposes certain criminal conduct to him, and himself ostensibly takes part therein”.
Generally speaking, the evidence so obtained is admissible if the conduct does not go beyond providing
an opportunity to commit an offence. Where the conduct goes beyond providing an opportunity to commit
an offence a court may admit evidence so obtained, subject to certain considerations provided for in the
Act (see for instance S v Matsabu 2009 (1) SACR 513 (SCA); S v Kotzè 2010 (1) SACR 100 (SCA);
Viljoen v S (663/ 2018) [2019] ZASCA 22 (27 March 2019 and Bilankulu v S (188/ 2020) [2020] ZASCA
114 (29 September 2020)).

2.7 Interception and monitoring

The Regulation of Interception of Communications and Provision of Communication-related Information
Act 70 of 2002 (generally known as RICA) prohibits the interception of certain communications relating to
serious crimes, except in terms of the provisions of the Act. Generally, a judge must authorise interceptions
of communications. The Act regulates the execution of directions and entry warrants by law enforcement

20
officers and the assistance to be given by postal service providers, telecommunication service providers
and decryption key holders in the execution of such directions and entry warrants. See Jwara v S 2015
(2) SACR 525 (SCA) (25 March 2015). Various aspects of the Act were ruled unconstitutional in
AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional
Services and Minister of Police v AmaBhungane Centre for Investigative Journalism NPC (CCT
278/19; CCT 279/19) [2021] ZACC 3 (4 February 2021).

21
3 Methods of securing the attendance of the accused in court
Study: Section 38 of the CPA.

3.1 Arrest

3.1.1 Introduction

The Bill of Rights guarantees the right of security and freedom of the person, which includes the right not
to be deprived of freedom arbitrarily or without just cause (s 12(1)(a)). Our law regards any deprivation of
freedom as prima facie unlawful and requires justification by the arresting officer. In a case for unlawful
arrest, a plaintiff need only allege the deprivation of his/ her freedom and may require of the defendant
(police) to plead and prove justification/ lawfulness of the arrest (Minister of Safety and Security v
Sekhoto 2011 (1) SACR 315 (SCA)). Other legislation may also provide for arrest and detention or the
restraining of persons (s 52 CPA).

3.1.2 Manner and effect of arrest

Study: Section 39 of the CPA sets out the three basic requirements for a lawful arrest. Note that there is a
general misconception that the body of the arrestee must in all cases be touched by the police for the
arrest to be valid. Can you identify the three requirements?

In addition to these basic requirements for the lawfulness of an arrest, it was held in Sekhoto (above) that,
once the required jurisdictional facts for arrest is established, namely lawful grounds upon which an arrest
may be effected), discretion whether or not to arrest arises. The arresting officer is not obliged to effect
an arrest. The discretion to arrest must be properly exercised. The purpose of arrest must be to bring the
arrested person to court (or, in certain cases, before a senior police officer - see the discussion of police
bail in Chapter 5) to consider the further detention of the accused. The validity of an arrest is not affected
by the fact that the arrestor, in addition to bringing the suspect before court, wishes to interrogate or subject
him/ her to an identification parade or blood tests to confirm, strengthen or dispel the suspicion that he/
she was involved in the commission of the offence. The exercise of the discretion in question will be
unlawful if the arrestor knowingly invokes the power to arrest for a purpose not contemplated by the
legislator. It may be irrational, and thus unlawful, to arrest in the case of relatively trivial offences –
however, it all depends on the circumstances of each case. The standard of rationality is not breached
when an officer exercises the discretion in a manner other than that deemed optimal by the Court. The
standard is not perfection or even the optimal conduct as judged from the vantage of hindsight. The court
rejected the approach in several previous cases that an arrest will always be unlawful if there is a less
invasive way (such as a summons) to bring the accused before court. Also see Raduvha v Minister of

22
Safety and Security [2016] ZACC 24 regarding the exercising of the discretion to arrest as far as children
are concerned.

3.1.3 Arrest without a warrant

Study: Section 40 of the Criminal Procedure Act provides for warrantless arrests. The notes below refer to
some of the subsections most encountered in practice:

(a) A person who commits or attempts to commit any offence in his/ her presence
In Nel v Minister of Police (CA62/2017) [2018] ZAECGHC 1 (23 January 2018), it was held that
the jurisdictional factors that had to be established for a successful invocation of section 40(1)(a)
were (a) the arrestor had to be a peace officer; (b) an offence had to have been committed by the
suspect or there had to have been an attempt by the suspect to commit an offence; and (c) the
offence or attempt had to have occurred in the presence of the arrestor. The court found that:
‘[25] “[I]n the presence of” contained in the section is an expression whose meaning has
not been interpreted consistently. Ordinarily the expression means “within the eye shot
of that police official or on her/ his immediate vicinity or proximity”.
[26] In my view, any controversy there previously might have been in interpreting “in the
presence of” is resoluble by having regard to the pronouncement in Gulyas v Minister of
Law and Order, where it was held: “In my view the intention was to authorise a warrantless
arrest also in the case of an offence that has already been committed. To hold that the
peace officer can only arrest without warrant someone who is still committing the offence
seems to me to be absurd and not what the Legislature intended. Parliament intended
that if, from the peace officer’s perception, the offence had just been committed, he should
have the power to arrest without warrant. This involves the peace officer being on the
scene of the offence either at the time of its commission or at tail end of it, so that he
personally sees (or otherwise perceives) that an offence has just been committed.”

(b) Reasonable suspicion of having committed an offence referred to in Schedule 1…

This subsection often forms the basis for civil litigation against the police. The following are the
essential jurisdictional facts that have to be present to justify an arrest without a warrant: (a) the
arresting officer must be a peace officer; (b) the arresting officer must entertain a suspicion; (c) the
suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1;
and (d) the suspicion must be based on reasonable grounds (Duncan v Minister of Law 1986 (2)
SA 805 (A) at 818G-H; Minister of Safety & Security v Sekhoto 2011 (1) SACR 315 (SCA) para
6). The reasonableness of the suspicion of any arresting officer acting under s 40(1)(b) must be
approached objectively. The question is whether any reasonable person confronted with the same
set of facts would form a suspicion that a person has committed a schedule 1 offence (M v Minister

23
 of Safety & Security 2009 (2) SACR 291 (GSJ)). Depending on the circumstances, the arrestor
may be required to make further enquiries regarding the circumstances of the alleged offence to
enable him/ her to properly exercise the discretion to arrest (De Klerk v Minister of Police 2018
(2) SACR 28 (SCA). A peace officer who fails to substantiate his/ her suspicion when able to do so
does not act reasonably (Barnard v Minister of Police 2019 (2) SACR 362 (ECG). The mere smell
of alcohol does not justify a conclusion that the person is under the influence of alcohol; Minister
of Safety and Security v Swart 2012 (2) SACR 226 (SCA)). [33] The question of whether a
peace officer reasonably suspects a person of having committed an offence within the ambit of s
40(1)(b) is objectively justiciable. The suspicion need not be based on information that would
subsequently be admissible in a court of law. The reasonable suspicion must nevertheless be more
than a hunch. It must be based on specific and articulable facts or information (Biyela v Minister
of Police (1017/2020) [2022] ZASCA 36 (1 April 2022) paras [33]-[34]).

(q) A person who is reasonably suspected of having committed an act of domestic violence as
contemplated in section (1) of the Domestic Violence Act 116 of 1998, which constitutes an
offence in respect of which violence is an element.
Where a peace officer without warrant arrests a person on the reasonable suspicion that he/
she is committing acts of domestic violence, the arrest will not be unlawful only because there
is no domestic protection order in place against that person (Minister of Safety and Security
v Katise 2015 (1) SACR 181 (SCA). S 3 of the Domestic Violence Act provides that a peace
officer may, without a warrant, arrest any respondent at the scene of an incident of domestic
violence whom he/ she reasonably suspects of having committed an offence containing an
element of violence against the complainant. Also see s 8 of the Act, which provides for the
authorising of an arrest warrant upon the issuing of a protection order.

3.1.4 Arrest by private person

Study: Section 42 of the CPA provides for the circumstances in which a private person may effect an
arrest.

3.1.5 Arrest with a warrant

Study: Section 43 of the CPA provides for the application for and issuing of an arrest warrant.

An arrest warrant must describe the offence in question (Minister of Safety and Security v Kruger 2011
(1) SACR 529 (SCA)).

24
3.1.6 Execution of an arrest warrant

Study: Section 44 of the CPA provides for the execution of an arrest warrant.
The police must execute an arrest warrant with due regard to the dignity and privacy of the person being
arrested. In Kruger (above), the court disapproved of the conduct of the police in turning an arrest into a
media showpiece.

3.1.7 Breaking open premises for arrest

Study: Section 48 of the CPA.

3.1.8 Use of force in effecting arrest

Study: Section 49 of the CPA provides for the use of force against the person to be arrested. Can you
identify the requirements for the use of force?

The current wording of the section was adopted after a previous version was declared unconstitutional
(see Ex Parte Minister of Safety and Security: In Re S v Walters 2002 (4) SA 613 (CC)).

3.1.9 Procedure after arrest

Study: The procedure after an arrest is dealt with in section 50 of the CPA. It is important to understand
the exceptions to the 48-hour hour rule.

It is difficult to coordinate police, prosecutorial and court activities over a weekend. The outer limit of the
48 hours does not entitle a policeman to detain someone for the entire 48 hours without bringing him/ her
to court if it could be done earlier, for instance when the investigation is finalised at an early stage. The
police authorities must bring someone before the court as soon as is reasonably possible, but not outside
the 48-hour limit (Mashilo v Prinsloo 2013 (2) SACR 648 (SCA)).

3.1.10 Consequences of unlawful arrest and detention

Arrest and detention are separate legal processes and the lawfulness of arrest and detention are separate
legal issues (Raduvha v Minister of Safety and Security [2016] ZACC 24). A person unlawfully arrested
and detained may institute a civil claim for damages against the relevant authorities. The onus of proving
the lawfulness of the arrest is on the defendant (police). In Minister of Safety and Security v Tyokwana
2015 (1) SACR 597 (SCA), the court found that an unlawful arrest does not preclude a lawful remand in

25
custody but, by the same token, not every remand in custody will be lawful. In Minister of Safety and
Security v Ndlovu 2013 (1) SACR 339 (SCA) it was held that, where an unlawfully arrested person is
brought before a reception court which remands him in custody without enquiring whether it is in the
interests of justice to detain him further, and simply remanded the case, the further detention will also be
unlawful. Also, see S v Muller 2020 (1) SACR 432 (SCA); De Klerk v Minister of Police 2020 (1) SACR
1 (CC) and Mahlangu v Minister of Police 2021 (2) SACR 595 (CC) regarding the liability of the police
for what transpired later in court.

The accused has the constitutional right to challenge the lawfulness of his/ her detention in person before
a court and, if the detention is unlawful, to be released (s 35(2)(d) Constitution). Section 38 of the
Constitution provides for persons who may approach courts to enforce rights on behalf of others. The
common law remedy of actio de libero homine exhibendo is well established in our law. It means “to
produce in public (that is, in court) and to make it possible to see and touch the man”. The writ de libero
homine exhibendo may be applied where a person has been unlawfully deprived of his/ her freedom and
is analogous to the writ of habeas corpus in English law. It is used to bring a prisoner or other detainee
before the court to determine if the person’s imprisonment or detention is lawful. An interested party may
bring an application to the court for the detained person to be brought before the court so that the
lawfulness of the detention may be challenged (Coetzee v National Commissioner of Police 2013 (11)
BCLR 1227 (CC) at fn. 25). Furthermore, a person who escapes from custody can only be convicted of
such an offence if the arrest was indeed lawful.

3.1.11 The arrest of children

Where a police official has reason to believe that a child suspected of having committed an offence is
under the age of 12 years, he or she may not arrest the child and must, in the prescribed manner,
immediately hand the child over (a) to his/ her parents or an appropriate adult or a guardian; or (b) if no
parent, appropriate adult or a guardian is available or if it is not in the best interests of the child to be
handed over to the parent, appropriate adult or guardian, he/ she must be handed over to a suitable child
and youth care centre and a probation officer must be notified (s 9(1)) CJA). The probation officer must
assess the child before the preliminary inquiry occurs (s 9(2) and 34 CJA).

A child may not be arrested for an offence referred to in Schedule 1 of the CJA, unless there are
compelling reasons justifying the arrest. The CJA lists several possible compelling reasons (s 20(1) CJA)
around this. Where possible, the police official who arrested the child must immediately, but not later than
24 hours after the arrest, inform the probation officer of the arrest (s 20(4)(a) CJA).

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3.2 Summons
The prosecutor may receive the police docket from the investigating officer for consideration without the
accused having been arrested. In practice, this is referred to as a “decision docket”. If the prosecutor
intends to prosecute the accused and he/ she is not in custody and no warrant has been issued for his/
her arrest, the prosecutor may utilise a summons to bring the accused before a lower court. The procedure
for a summons can be summarised as follows. The prosecutor draws up the charge and hands it and other
personal information of the accused to the clerk of the court. The latter then issues the summons and
delivers it to the person empowered by law to serve a summons in criminal proceedings, that is, usually
the investigating officer or the sheriff of the court. This person must serve the summons on the accused.
The summons must be delivered to the accused in person or, if he/ she cannot be found, it must be
delivered at his/ her residence or place of employment or business to a person apparently over the age of
16 years and apparently residing or employed there. The person serving the summons will complete the
return of service, that is, the document indicating how the summons was served. The return is prima facie
proof of the service of the summons (s 54 CPA).

If the accused fails to appear in court, or appears but fails to remain in attendance, on the date set for his
trial, the court may issue an arrest warrant after satisfying itself from the return of service that the summons
was properly served. When the accused is brought before the court, the magistrate may enquire in a
summary manner into his/ her failure to appear. Although summary in nature, the accused retains his basic
trial rights, for example, the right to legal representation and the right to adduce evidence. If the accused
does not satisfy the court that his/ her failure was not due to any fault on his/ her part, the court may convict
him. her of the offence of failing to appear and impose a fine or imprisonment not exceeding three months.

Where it appears to the person executing the warrant that the accused received the summons in question
and that the accused will appear in court following a warning in respect of the offence of failing to appear
in answer to the summons, he/ she may release the accused on warning. Where it appears to the person
executing the warrant that the accused did not receive the summons in question or that the accused paid
an admission of guilt fine or that there are grounds on which it appears that the failure of the accused to
appear was not due to any fault on his/ her part, the person executing the warrant must release the
accused on warning. Arresting a person without properly considering whether he/ she may or should be
released in terms of these provisions, may constitute an unlawful arrest (Van Rensburg v City of
Johannesburg [2008] 1 All SA 645 (W)).

The court issuing the warrant for the accused’s failure to appear must endorse the warrant to the effect
that the accused pay the admission of guilt fine for the offence in question if the original summons provided
for this. The court may also endorse the warrant to the effect that the accused may admit his/ her guilt in
respect of the offence of failing to appear and allow the accused to pay an admission of guilt fine in respect

27
of that offence at the clerk of the court or a police station upon his/ her arrest. The inquiry for the accused’s
failure to appear may be held at the magistrate’s court of the district where he/ she is arrested and does
not have to be held at the court within whose jurisdiction the offence was committed. This provision was
intended to save costs and spare resources. It will, for instance, not be necessary for the police to transport
the accused arrested for failure to appear on a minor traffic offence to a court many kilometres away from
his/ her place of residence (s 55 CPA).

3.3 Written notice

If an accused is alleged to have committed an offence and a peace officer on reasonable grounds believes
that a magistrate's court, on convicting an accused, will not impose a fine exceeding the amount
determined by the minister from time to time by notice in the Gazette (currently R5000), such peace officer
may, regardless of whether the accused is in custody, hand to him/ her a written notice to appear in court.
The written notice must specify the accused’s particulars; call upon the accused to appear in court on a
specific date and place; contain an endorsement that the accused may pay an admission of guilt fine in
respect of the offence; and contain a certificate from the peace officer that he/ she has handed the original
written notice to the accused and that he/ she has explained to the accused the importance of this. A
written notice may thus be handed to the accused “on the spot”, or even after an arrest, after which the
accused is released. The consequences of the failure to appear on a written notice are similar to those of
failure to appear on a summons (s 56 CPA).

3.4 Admission of guilt fines (AOGs) and compounding

As you have seen above, a summons may make provision for an admission of guilt fine, whilst a written
notice to appear in court must make provision for it. This allows the accused to admit his/ her guilt by
paying the fine without appearing in court. Section 57 of the CPA contains detailed provisions regarding
admission of guilt fines. Only some of these aspects are mentioned here. Where the prosecutor or clerk
of the court believes that a magistrate’s court will not impose a fine exceeding R10 000.00, the prosecutor
or clerk of the court may endorse the summons to the effect that the accused may pay the fine stipulated
in the summons. A written notice issued by a peace officer must provide for an admission of guilt fine.
This fine must be in accordance with a determination that the magistrate of the relevant magisterial district
makes in respect of any offence. If no determination is made, the amount may be determined by the public
prosecutor (in respect of a summons) or senior police officer (in respect of a written notice). The fine may,
however, not exceed R10 000.00 or the amount determined by the magistrate in respect of specific
offences.

28
A prosecutor may reduce an admission of guilt fine on good cause shown. The clerk of the court must
enter the essentials of the summons/ written notice in the criminal record book for admissions of guilt. The
accused is then deemed to have been convicted and sentenced for the offence in question, subject to
judicial overview by the magistrate of the relevant district. The magistrate must examine the documents.
If the magistrate is of the view that the conviction and sentence do not accord with justice, or the sentence
is not per the determination made by the magistrate, or the sentence is not adequate in those cases where
the amount was determined by the prosecutor or senior police official, the magistrate may set aside the
conviction and sentence and direct that the accused be prosecuted in the ordinary course. However, if the
magistrate is satisfied that the admission of guilt fine was properly provided for, the accused is deemed to
have been convicted and sentenced. In S v Parsons 2013 (1) SACR 38 (WCC) and S v Tong 2013 (1)
SACR 346 (WCC), it was held that, where conviction is based on an admission of guilt fine, the accused
should be fully informed about the consequences of the payment of such a fine, as this results in a previous
conviction (also see Mong v DPP [2019] 4 All SA 447 (WCC)). In terms of section 57A of the CPA, the
prosecutor may also set an admission of guilt fine after the accused has appeared in court.

Section 341 of the CPA provides for the compounding of certain minor offences, that is, offences in
Schedule 3 to the CPA, which refer to contraventions of municipal by-laws and minor traffic offences upon
the issuing of a written notice by a peace officer. The accused pays the fine in order not to be prosecuted.
If the accused elects not to pay, he/ she may be summoned to appear in court.

It is also important for you to take notice of the Administrative Adjudication of Road Traffic Offences Act
46 of 1998, which introduced a demerit system for violations of traffic law. Motorists who break traffic laws
will lose certain points and, once they have lost a certain number of points, they will have their driving
licenses suspended or cancelled. The legislation also introduces a new system of administrative
adjudication of cases of traffic infringement. You can find information on how it works here. The whole Act
was declared unconstitutional in Organisation Undoing Tax Abuse v Minister of Transport
(32097/2020) [2022] ZAGPPHC 1 (13 January 2022). The Constitutional Court, however, did not uphold
this finding and did not confirm the order of the high court. See Organisation Undoing Tax Abuse v
Minister of Transport (CCT 19/22) [2023] ZACC 24 (12 July 2023).

3.5 Indictment
Study: S 144 of the CPA.

An indictment is used to secure the attendance of an accused at a high court. Broadly speaking, the
indictment contains the charge, certain personal details of the accused, a summary of the substantial facts
of the case and a list of witnesses. An indictment is prepared in the name of the director of public
prosecutions (DPP). The indictment and notice of trial in the High Court are usually served on the accused

29
by the magistrate at the time when the accused appears in the lower court and his/ her case is transferred
to the High Court for trial.

30
4 Bail

4.1 Introduction
Section 35(1)(f) of the Constitution provides:
Everyone who is arrested for allegedly committing an offence has the right to be released from
detention if the interests of justice permit, subject to reasonable conditions.

Section 60(1)(a) of the CPA provides that an accused who is in custody in respect of an offence, subject
to the provisions of section 50(6), is entitled to be released on bail at any stage preceding his/ her
conviction in respect of such offence if the court is satisfied that the interests of justice so permit. The basic
criterion for the release on bail is whether the interests of justice permit it (S v Dlamini; S v Joubert; S
v Schietekat 1999 (7) BCLR 771 (CC) at para [6] - hereafter Dlamini). The court thoroughly analysed the
bail provisions and upheld the constitutionality thereof. Chapter 9 of the CPA governs the bail procedure
in minute detail. The purpose of bail is to strike a balance between the interests of society and the liberty
of an accused person.

4.2 The effect of bail

The effect of bail granted is that an accused who is in custody is released from custody upon payment of
or the furnishing of a guarantee to pay, the sum of money determined for his/ her bail. The accused must
appear at the place and on the date and at the time appointed for his/ her trial or to which the proceedings
are adjourned. The release of the person on bail normally endures until a verdict is given by a court in
respect of the charge to which the offence in question relates. Where sentence is not imposed immediately
after the verdict, the court in question may extend the bail until sentence is imposed. Where a court
convicts an accused of an offence contemplated in Schedule 5 or 6 of the CPA, the court must, in
considering the question as to whether the accused’s bail should be extended, apply the provisions of
section 60(11)(a) or (b) (see discussion below), as the case may be, and the court must then take into
account (a) the fact that the accused has been convicted of that offence; and (b) the likely sentence which
the court might impose (s 58). The possibility also exists that the court may extend the bail of the accused
pending appeal.

4.3 Police bail and prosecutorial bail (only possible before first
court appearance)
Study: Section 59 or 59A of the CPA.

31
 Police bail (s 59 CPA) Prosecutorial bail (s 59 CPA)
May only be granted before the accused’s first court appearance.
Police or prosecutor, as the case may be, must consult with the IO.
Not for schedule 5 or 6 offences.
For any offences, except Part II and Part For Schedule 7 offences only
III of Schedule 2 offences of the CPA.
Not for certain domestic violence-related
and harassment offences.
May be granted by a non-commissioned May be granted by DPP or duly
officer or higher rank. authorised prosecutor.
Cash only. Cash and guarantee.
Basic conditions only (date and time of Basic and additional conditions (e.g.
court appearance). rendering passport.; reporting to the
police station).
Continues after the first court Continues until the first court
appearance. The court may add appearance. Thereafter court may
additional conditions at the request of extend bail, amend conditions, or
the prosecutor. reconsider bail afresh.

In certain circumstances, the police or the prosecutor may grant bail before the accused’s first court
appearance. This type of bail application typically occurs over weekends and after hours when the courts
are not sitting. An arrested person does not have the right to be brought before court outside ordinary court
hours (s 50(6) CPA).

Once the jurisdictional facts for the consideration of police bail are present, the police must ascertain, as
soon as reasonably possible after the arrest, whether the arrestee wishes bail to be considered. If the
arrestee wishes to apply for police bail, such an application must be considered as a matter of urgency. A
failure to inform the arrestee of his/ her right to apply for bail or a failure to consider bail or any
unreasonable delay in the process could, depending on the circumstances of the case, render the
arrestee's further detention unlawful (Sethlapelo v Minister of Police 2015 JDR 0952 (GP); Matebese v
Minister of Police (2224/ 2017) [2019] ZAECPEHC 37 (18 June 2019)).

32
4.4 The bail application of an accused in court

4.4.1 Introduction

The bail application of an accused in court is regulated in detail by section 60 CPA. A bail application and
its finalisation are matters of urgency, as these affect a person’s freedom (Magistrate, Stutterheim v
Mashiya 2003 (2) SACR 106 (SCA)).

Study: Section 50(6) of the CPA deals with the procedure after arrest and contains important provisions
regarding bail.
Study: NB: Section 60 of the CPA provides for bail applications in court. Section 60(4)-(9) lists the factors
to be considered in bail applications.
Section When release is not in the interests of Specific considerations
60(4) justice
60(4)(a) Endanger the safety of the public, a particular 60(5)
person or will commit a schedule 1 offence
60(4)(b) Likelihood of attempt to evade trial 60(6)
60(4)(c) Attempt to influence/intimidate witnesses or to 60(7)
destroy/conceal evidence
60(4)(d) Undermine/jeopardize the criminal justice 60(8)
system (including the bail system)
60(4)(e) Disturb public order/undermine public peace 60(8A)
and security (only in exceptional
circumstances)

S 60(9): Court must weigh

Interests of justice Personal freedom and possible prejudice to
accused
List of factors in section 60(9)

In bail applications, the court may receive evidence in the form of affidavits instead of viva voce (oral)
evidence. Averments contained in an affidavit have little probative value when compared to oral evidence,
which can be subjected to cross-examination (S v Pienaar 1992 (1) SACR 178 (W) at 180h. Also see S v
Mathebula 2010 (1) SACR 55 (SCA) and Killian v S [2021] ZAWCHC 100 (24 May 2021)). In Killan,
Binns-Ward J held at para [9]: “I question whether it is wise or desirable for a party bearing a formal onus
to seek to discharge it by adducing its evidence on paper, especially when the evidence is likely to be
challenged or disputed ...”

33
The court may also consider hearsay evidence – for instance, investigating officers will often testify in bail
applications regarding the circumstances of the offence based on the information gathered in the police
docket. In a bail application, the court must assess the prima facie strength of the state’s case against the
bail applicant as opposed to making a provisional finding on the guilt of the applicant. Bail proceedings are
not a dress rehearsal for trial. The making of credibility findings of witnesses on the merits of the case
against the bail applicant is left to the trial court as it is better placed to assess such witnesses (S v Van
Wyk 2005 (1) SACR 41 (SCA) at par [6] and Dlamini para [11]).

4.4.2 Schedule 5 and Schedule 6 bail applications

Study: Section 60(11) CPA.

Schedule 5 - s 60(11)(b) Schedule 6 – s 60(11)(a)

The accused must present evidence that The accused must present evidence of the
his/ her release on bail is in the interests of existence of exceptional circumstances
justice. justifying his/her release in the interests of
justice.

The distinction between offences provided for in Schedule 5 and Schedule 6 of the CPA is important.
Graver offences listed in Schedules 5 and 6 of the Act, are subject to a more stringent bail regime (S v
Mabena [2007] 2 All SA 137 (SCA) at para [5]). Section 60(11) CPA places a formal evidentiary burden
on the accused in these cases. Where the offence resorts under either Schedule 5 or Schedule 6, the
accused will have to start presenting evidence, after which the state will present its evidence. If the state
does not oppose the bail application in respect of these offences, it must inform the court of the reasons
why it does not do so. A court may not grant bail in the absence of a proper bail inquiry in terms of the
Criminal Procedure Act (S v Mabena above at para [26]). The affidavit in support of the bail application
must be properly sworn S v Mofokeng 2022 (2) SACR 184 (GP). The important point of departure in all
bail applications is to determine whether the offence resorts under Schedules 5 or 6 or not. Certain
domestic violence-related offences are now also treated in the same manner as schedule 5 offences (see
ss 60(11)(c)).

4.4.3 The meaning of “exceptional circumstances” in the context of Schedule

6 bail applications

Regarding Schedule 6 offences, the accused applying for bail must establish on a balance of probabilities
the existence of exceptional circumstances that, in the interests of justice, permit his/ her release on bail.
The term “exceptional circumstances” is not defined by the CPA.

34
• They do not have to be above and beyond, and generally different from those provided for in ss
60(4) to (9). If “ordinary” circumstances are present to an exceptional degree, this may lead to a
finding that release on bail is justified (Rudolph v S 2010 (1) SACR 262 (SCA) at para [9]).
• Personal circumstances that are commonplace and not out of the ordinary do not constitute
exceptional circumstances (S v Scott-Crossley (100/ 07) [2007] ZASCA 46; [2007] SCA 46
(RSA) (29 March 2007) at para [12]).
• In S v Jonas 1998 (2) SACR 673 at 687 e-j, the court held that possible exceptional
circumstances may be founded on urgent serious medical operations or terminal illness or an
iron-cast alibi. It would, however, be futile to attempt to provide a list of possibilities that will
constitute exceptional circumstances.
• If evidence is adduced that the state’s case is weak, it may constitute “exceptional
circumstances”. In Mathebula v S 2010 (1) SACR 55 (SCA) at para [12], it was held that in to
order successfully to challenge the merits of a case in bail proceedings, the applicant needs to go
further: he/ she must prove on a balance of probability that he/ she will be acquitted of the
charge. The court said that this is “no mean task”. Until thel applicant has set up a prima facie
case that the prosecution will fail, there is no call on the state to rebut his evidence to that effect.
Exceptional circumstances warranting the release of an applicant on bail can be established
without challenging the strength of the state’s case. However, if an accused person challenges
the strength of the state’s case against him/ her in the bail proceedings then, the challenge
attracts a burden of proof to show that there is a real likelihood that he/ she will be acquitted at
trial (Panayiotou v S (CA&R 06 / 2015) [2015] ZAECGHC 73 (28 July 2015) at para [56]). Also
see Killian v S [2021] ZAWCHC 100 (24 May 2021).
• In S v Petersen 2008 (2) SACR 355 (C) at para [55], the court held that “exceptional” is
indicative of something unusual, extraordinary, remarkable, peculiar or simply different. For
circumstances to qualify as sufficiently exceptional, the accused’s release on bail had to be one
which weighed heavily in favour of him/ her, thereby rendering a case for release on bail
exceptionally strong or compelling (S v Mazibuko 2010 (1) SACR 433 (KZP)).
• What may constitute exceptional circumstances in any given case depends on the discretion of
the presiding officer and the facts peculiar to a particular matter (Ntoni S (5646/ 2018P) [2018]
ZAKZPHC 26 (21 June 2018)). The need for frequent and lengthy consultations with legal
representatives and/ or expert witnesses may constitute exceptional circumstances for bail
purposes in an appropriate case (Molefe v S (A269/2013) [2014] ZAFSHC 1 (9 January 2014);
Van Vuuren v S [2011] ZAGPJHC185 (7 December 2011)).
• Where an accused fails to make out a prima facie case that exceptional circumstances are
present, there is no duty on the state to advance evidence in rebuttal (S v Viljoen 2002 (2) SACR
550 (SCA)).

35
4.4.4 Determining whether the offence is a Schedule 5 or Schedule 6 offence

It mostly happens that the state and the defence agree about what schedule offence the court is confronted
with. If not, the court must decide on the Schedule. The DPP may issue a written confirmation to the
effect that he/ she intends to charge the accused with an offence referred to in Schedule 5 or 6 (s 60(11A)).
The prosecutor must hand in the written confirmation at the court. This written confirmation is, upon its
mere production at such at the bail application, prima facie proof of the charge.

A proper description of the charge in the charge sheet is also sufficient for determining whether the
offence resorts under Schedule 5 or Schedule 6 (S v Botha 2002 (1) SACR 222 (SCA) at para [16]; S v
Josephs (above) at 661f–h). A problem may arise where the evidence led in a bail application contradicts
the facts averred in the charge sheet or the written confirmation issued by the DPP (J van den Berg Bail –
A Practitioner’s Guide 3ed (2012) 96-97). A narrow interpretation of Botha will require the court to base
its verdict in the bail application on the jurisdictional fact originally established in the charge sheet or written
confirmation, notwithstanding the evidence presented. Van den Berg (at 97) states that such a situation
will constitute an “anomaly and absurdity” that may lead to injustice. It is submitted that the practical
solution will be for the court to allow the parties to address it on the issue before judgment. Furthermore,
if the evidence led in the bail application indicates that the incidence of the onus in respect of the offence
is less invasive on an accused’s rights to personal liberty than the requirements for the offence disclosed
at the beginning of the bail application, the court will have to approach the matter on a basis more
favourable to the accused. After all, the certificate issued by the DPP or the charge sheet constitutes no
more than prima facie proof of the charge to be brought against the person.

4.4.5 Disclosure of previous convictions and pending cases

Study: Section 60(11B)(a) and (b) of the CPA.

Previous convictions and other pending cases may affect the accused’s chances for bail. In addition, it
may “elevate” the offence to a Schedule 5 or 6 offence, thereby placing a more onerous burden of proof
on the accused applying for bail.

4.4.6 The admissibility of the record of bail proceedings in the subsequent

trial

Study: 60(11B)(c) of the CPA.

Failure to warn the accused under this section will render the evidence inadmissible in the subsequent trial
(S v Miya 2017 (2) SACR 461 (GJ); S v Madlala 2015 (2) SACR 247 (GJ)).

36
4.4.7 Bail conditions

Study: Section 60(11) of the CPA.

Study: Section 63 of the CPA.
Below is an example of some typical bail conditions.

THE STATE versus

_______________________________________________________________
(hereinafter referred to as the accused)

In terms of Section 60 of Act 51 of 1977 it is ordered:

THAT the accused be granted bail in the sum of R_______________ cash,

AND

1. THAT upon payment of the said sum of money, the accused shall be released from
custody on condition that:
He / She appears personally in Court ________ at the __________ Magistrate’s
Court, at _____ (time) on the _____ day of __________ 200__ and thereafter on
such dates and times and to such places to which these proceedings are adjourned
until a verdict is given in respect of the charge to which the offence in this case
relates, or where sentence is not imposed forthwith after verdict and the court
extends bail, until sentence is imposed;

2. That the accused does not communicate with witnesses for the prosecution; [names
of witnesses attached]

3. That the accused reports in person to the person in charge of the Charge Office at
______________________ Police Station ___________ between _______ and
_______ on _______________ and every _______________________ thereafter;

4. That the accused’s does not enter or go to ____________________________;

5. That the accused’s address is; _________________________________ and if (s)/

he should change such address (s)/ he will notify the Clerk of the Court,
______________ of such change within 24 hours.

4.4.8 Bail money

Study: Section 60(13) of the CPA.

Study: Section 60(2B) of the CPA.
Study: Section 69 of the CPA.

Study: Section 70 of the CPA.

The Code of Conduct issued by the Legal Practice Council prohibits a legal practitioner from standing bail
for his/ her client.

37
4.4.9 The right of the accused to access information in bail proceedings

Study: Section 60(14) CPA.

A court’s function in a bail application must be more proactive than in normal criminal proceedings. If
the court lacks reliable and important information necessary to reach a decision, the court must invoke
s 60(3) CPA to obtain the information and make it available to the defence (S v Green 2006 (1) SACR
603 (SCA)).

4.5 Failure by the accused to observe a condition of bail

Study: Section 66 CPA provides for the consequences when an accused fails to observe a bail condition
other than the failure to appear in court.

Accused allegedly failed to observe bail condiction

•Prosecutor applies to court to lead evidence to prove
failure.
•If accused absent: arrest warrant may be issued.

Accused before court.

•Court holds a summary inquiry into the failure to
observe conditions.
•State and accused may present evidence.

Accused admits failure/ court finds accused did not

observe bail condition failure
•If court finds due to the accused's fault, court my cancel
the bail and declare bail forfeited to the State.

4.6 Failure of the accused on bail to appear in court

Study: Sections 67 and 67A CPA.

38
 Accused fails to appear/ remain in attendance:
•Court issues warrant for arrest.
•The court provisionally cancels bail and declares
the bail money forfeited to State.
•Case is postponed for 14 days.

Accused does not appear in within 14 days:

•Bail is finally revoked and forfeited to State.

Accused appears in court within 14 days:

•Summary inquiry into the failure to appear.
•If found due to fault of accused: bail finally
cancelled and forfeited to State.
•If found not to be the fault of accused, bail
reinstated.

Criminal liability:
•Accused commits an offence.
•Accused may be prosecuted in the ordinary way (not
a summary procedure).

4.7 Cancellation of bail

Study: Sections 68 and 68A of the CPA provide for the cancellation of bail.

4.8 Release on warning

Study: Sections 72 and 72A of the CPA provide for the release of the accused on warning instead of bail.

39
5 Public and private prosecutions

5.1 Public prosecutions

5.1.1 The national prosecuting authority (NPA)

Study: Section 179 of the Constitution provides for the establishment of a single national prosecuting
authority (NPA).

The Minister of Justice exercises final responsibility over the prosecuting authority. The Minister may not
interfere with decisions to prosecute or not to prosecute. He/ she is, however, entitled to be kept informed
where public interest or an important aspect of legal and prosecutorial authority is involved (see NDPP v
Zuma 2009 (2) SA 277 (SCA)). All matters concerning the NPA are determined by the National
Prosecuting Authority Act 32 of 1998 (NPA Act).

The prosecuting authority comprises the following.

• National Director of Public Prosecutions (NDPP);
• Deputy National Directors of Public Prosecutions (DNDPPs);
• Directors of Public Prosecutions (DPPs) (at the different seats of the High Courts);
• Deputy Directors of Public Prosecutions (DDPPs); and
• prosecutors (s 4 NPA Act).

The powers and duties of each of these officials are set out in the NPA Act. A prosecutor in a lower court
exercises the powers, carries out the duties and performs the functions conferred or imposed on or
assigned to him/ her under the control of the DPP in whose area of jurisdiction such court is situated, or a
person designated by such DPP (s 25(1)(c) NPA Act).

The President may, by proclamation in the Gazette, establish Investigating Directorates in the Office of
the NDPP in respect of unlawful activities as set out in the proclamation (s 7 NPA Act). Such a Directorate
was set up in 2019 to investigate and prosecute so-called “state capture” cases.

The NPA Act provides for the appointment of “outside” legal practitioners, for instance, a private
practitioner to prosecute specific cases, subject to some conditions (see in this regard Moussa v S 2015
(2) SACR 537 (SCA); Porritt v NDPP 2015 (1) SACR 533 (SCA); Delport v S 2015 (1) SACR 620
(SCA)).

5.1.2 The prosecution as dominus litis

The state is dominus litis (master of the cause). In S v Sehoole 2015 (2) SACR 196 (SCA) it was held:

40
 [10] The State has a discretion regarding prosecution and pre-trial procedures. For instance, the
State may decide … whether or not to institute a prosecution; on what charges to prosecute; in which
court or forum [court] to prosecute, when to withdraw charges and so forth. The State can elect to
charge a person with a less serious offence.

Ordinarily, courts may not interfere with the prosecutor's discretion unless there are truly exceptional
circumstances for doing so (Seehole case at para [12]; Phika v S 2018 (1) SACR 392 (GJ)). A
magistrate or judge may, for instance, not insist that a prosecutor must charge the accused with a more
serious offence.

In S v Khalema 2008 (1) SACR 165 (C) at para [22] the court, concerning section 75 CPA, held that “the
prosecutor […] is the party who dictates the route a case will take towards being finalised. …. Absent this
decision by the prosecutor the magistrate in the district court cannot transfer a matter out of her court to a
higher court ”.

5.1.3 The discretion to prosecute

The prosecution policy guides the way prosecutorial discretion must be exercised:
• The process usually starts when the police present a docket to the prosecutor.
• The prosecutor must consider whether to request the police to investigate the case further;
institute a prosecution; enter into a plea or sentence agreement; decline to prosecute and opt for
pre-trial diversion or other non-criminal resolution; or decline to prosecute without taking any
other action.
• The decision must be taken with care because it may have profound consequences for victims,
witnesses, accused persons and their families. A wrong decision may also undermine the
community’s confidence in the criminal justice system.
• The prosecutor may consider the views of the complainant/ victim, but the ultimate decision
remains that of the prosecutor and he/ she is not bound by the wishes of the complainant/ victim.
• Prosecutors must assess whether there is sufficient and admissible evidence to provide a
reasonable prospect of a successful prosecution. There must be a reasonable prospect of a
conviction, otherwise the prosecution should not be commenced or continued. Prosecutors must
consider factors such the strength of the case for the state, the availability of witnesses and the
reliability and admissibility of the evidence.
• Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect
of a conviction, a prosecution should normally follow, unless public interest demands otherwise
(see Prosecution Policy on NPA’s website).

In S v Lubaxa (372/ 2000) [2001] ZASCA 100; [2002] 2 All SA 107 (A) it was held:

41
 Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon
which he might be convicted, merely in the expectation that at some stage he might
incriminate himself. That is recognised by the common law principle that there should be
“reasonable and probable” cause to believe that the accused is guilty of an offence before a
prosecution is initiated (Beckenstrater v Rottcher and Theunissen 1955(1) SA 129 (A) at
135C-E), and the constitutional protection afforded to dignity and personal freedom (s 10
and s 12) seems to reinforce it.

A malicious prosecution may lead to a civil claim for damages against the NPA (Khumalo v Minister of
Police 2021 (1) SACR 551 (WCC); Minister for Justice and Constitutional Development v Moleko
2009 (2) SACR 585 (SCA)).

5.1.4 The withdrawal of a case and the stopping of a prosecution

A charge may be withdrawn for various reasons, for instance at the request of the complainant (and the
prosecutor agrees thereto), because further investigation is required before the matter is enrolled again,
or because the court refused a further postponement at the request of the state. In terms of section 6(a)
of the CPA a prosecutor may, before an accused pleads to the charge, withdraw that charge. The
accused is not entitled to a verdict of acquittal in respect of that charge and may therefore be charged
again at a later stage. Once an accused has pleaded, he/ she is entitled to a verdict of guilty or not guilty.
The withdrawal of the charge will not be an appropriate step (S v Masilo (15/ 2016) [2016] ZAFSHC 23
(11 February 2016)).

In terms of section 6(b) of the CPA, a prosecutor may at any time after an accused has pleaded, but
before conviction, stop the prosecution in respect of that charge, in which event the court trying the
accused must acquit him/ her in respect of the charge. A prosecution may only be stopped upon the
authorisation of the DPP or a person who is authorised by the DPP to do so. If such an accused is again
charged at a later stage, he/ she will be able to successfully raise the plea that he has been previously
acquitted of the charge. The failure to obtain the necessary authorisation from the DPP will not constitute
a lawful stay of the prosecution. Where, after the accused has pleaded to the charge, the prosecutor closes
the state’s case without calling any witnesses, it does not amount to the stay of a prosecution (S v Gouws
2008 (2) SACR 640 (T)). The stay of prosecution at the instance of the state should not be confused with
the power of the court to order a permanent stay of the prosecution due to an undue delay affecting the
accused’s fundamental rights. This issue is dealt with later.

42
5.1.5 The reconsideration/ review of the decision to prosecute/ not to
prosecute

It regularly happens that persons are dissatisfied with a decision to prosecute or not to prosecute. Such a
person may make representations to the relevant senior prosecutor/ chief prosecutor or DPP. The NDPP
may also review the original decision - see in this regard the discussion on section 179 of the Constitution
above.

In addition, a High Court may, upon application, review and set aside the decision of the prosecuting
authority. Both the decision to prosecute and not to prosecute are subject to review. As the prosecutor is
dominus litis, the courts will not lightly interfere with these decisions. The doctrine of separation of powers
precludes the courts from impermissibly assuming the functions of the NPA. Courts will only interfere on
rare occasions and for compelling reasons. These reviews are limited to grounds of legality, in other words,
non-compliance with a legal prescript, and rationality, that is, no reasonable person could have taken the
decision based on the facts before him or her (DA v Acting NDPP 2012 (3) SA 486 (SCA); NDPP v
Freedom Under Law 2014 (2) SACR 107 (SCA); Zuma v DA (771/2016); ANDPP v DA (1170/2016)
[2017] ZASCA 146 (13 October 2017). A prosecution is not wrongful merely because it is brought for an
improper purpose such as political pressure. It would only be wrongful if, in addition, reasonable and
probable grounds for prosecuting were absent (NDPP v Zuma 2009 (2) SA 277 (SCA)).

5.1.6 Overview of prosecutorial responsibilities

In Doorewaard v S 2021 (1) SACR 235 (SCA), Ponnan JA said that “prosecutors play a critical role in our
criminal justice system”. A prosecutor may not merely place a matter on the court roll, for it to be postponed
for further investigation. A prosecutor must pay attention to the contents of the police docket. A prosecutor
must act with objectivity and protect the public interest (Minister of Police v Du Plessis 2014 (1) SACR
217 (SCA)).

The duty of prosecutors is not to secure a conviction at all costs or defend convictions on appeal, once
obtained. They must see to it that justice is done. The prosecution must present all the facts in an objective
and fair manner to place the court in a position to arrive at the truth (Macrae v S 2014 (2) SACR 215
(SCA)). In Doorewaard (above at para [81]) it was also held that the prosecutor must place before a court
credible evidence in support of the alleged crime. The prosecutor must evaluate the conduct of the police
and the strength of the State’s case that will be presented to a court. A prosecutor should not simply place
a hotchpotch of contradictory evidence before a court, and then leave it to the court to make of it what it
will.

43
In Van der Westhuizen v S 2011 (2) SACR 26 (SCA), the court referred to prosecutors’ duties in terms
of the Constitution, international instruments and the Code of Conduct of Prosecutors. The prosecutorial
discretion to institute and stop criminal proceedings should be exercised independently, in accordance
with the Prosecution Policy and the Policy Directives, and be free from political, public, and judicial
interference. Prosecutors should perform their duties without fear, favour, or prejudice. The court held as
follows around this:

[12] Where an accused is represented, it is not the function of a prosecutor, …. to call evidence
which is destructive of the State case or which advances the case of the accused. The prosecutor is
not obliged to play chess against him ─ or herself.

[13] It is … within the discretion of the prosecutor to decide which witnesses to call as part of the
State case. The duty of the prosecutor 'to see that all available legal proof of the facts is presented',
… is discharged by making the evidence (and not only the witnesses subpoenaed by the State)
available to the accused's legal representatives.
….
… [I]t is not necessarily sufficient for the prosecutor to tender State witnesses to the defence at the
end of the State case, nor does the prosecutor necessarily discharge the duty of disclosure by
making available the contents of the dossier: if there is evidence which the prosecutor knows or
ought reasonably to suspect is or may be destructive of the State case, or which tends or might tend
to support the defence case, and which the prosecutor knows or ought reasonably to suspect is not
known to the defence, it is the prosecutor's duty to bring this evidence specifically to the attention of
the accused's legal representatives. It would therefore, for example, not be necessary for a
prosecutor to draw attention to a specific witness's statement favourable to the accused in the
dossier made available to the defence, for he who runs may read; but the prosecutor would be
obliged to inform the defence that a particular witness, who has not given a statement, might to the
defence's advantage be consulted and why, and also to assist, where necessary, in making such a
witness available; and the prosecutor would also be obliged to furnish the defence with a document
which is not in the dossier, which favours the accused's case or which is destructive of the State
case, which the prosecutor believes or ought reasonably to believe is not in the possession of the
defence. But the prosecutor's obligation is not to put the information before the court.

In Porritt v NDPP 2015 (1) SACR 533 (SCA), the court distinguished between the role of the court and
that of the prosecutor. The court held as follows:

[11] There is a fundamental difference between the role and functions of a prosecutor as
opposed to those of a magistrate or a judge. The judiciary is held to the highest standards of
independence and impartiality because they are the decision-makers in an adversarial judicial

44
 system. Prosecutors neither make the final decision on whether to acquit or convict, nor on
whether evidence is admissible or not. Their function is to place before a court what the
prosecution considers to be credible evidence relevant to what is alleged to be a crime. Their
role excludes any notion of winning or losing. It is to be efficiently performed with an ingrained
sense of dignity, the seriousness and the justness of judicial proceedings.
….
[13] The principles that govern prosecutorial conduct must therefore be seen and understood in
the context of the role that prosecutors play. In adversarial criminal proceedings such as ours,
it is inevitable that prosecutors will be partisan. They conduct the case for one of the two sides
in a trial, namely the State, as representing the citizenry. They often carry out their prosecutorial
functions vigorously and zealously. A prosecutor’s role in a criminal prosecution therefore makes
it inevitable that he or she would be perceived to be biased. Prosecutors usually approach
criminal prosecutions with a view, sometimes a very strong view, that accused persons are
guilty. That is permissible, subject to the caveat that they must not prosecute in single-minded
pursuit of a conviction. They have a duty towards the accused to ensure that an innocent person
is not convicted. In this regard, they have a duty to disclose, in certain circumstances, facts
harmful to their own case.

In a bail application, the prosecutor must place all relevant material that has a bearing on the issue of
bail before the court (Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC); Minister of Justice and Constitutional Development v
X 2015 (1) SACR 187 (SCA)).

5.2 Private prosecutions

5.2.1 Private prosecutions upon a nolle prosequi certificate

The Criminal Procedure Act provides for the institution of private prosecutions in limited circumstances. A
private prosecution remains a criminal case and is not similar in nature to civil litigation. Private
prosecutions are, however, not instituted by the state, but by private individuals. Section 7 of the CPA
provides for the specific categories of persons that may institute private prosecutions. Only private persons
(as opposed to juristic persons) may institute a private prosecution in terms of section 7 of the CPA
(National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional
Development (20781/ 2014) [2015] ZASCA 206). Sections 9-17 of the CPA contain detailed provisions
regarding all procedural matters in respect of private prosecutions.

In terms of section 7(1) CPA, the following categories of persons may instate a private prosecution:

45
 • any private person who proves some substantial and peculiar interest in the issue of the trial
arising out of some injury which he/ she individually suffered in consequence of the commission
of the said offence;
• a husband, if the said offence was committed in respect of his wife;
• the wife or child or, if there is no wife or child, any of the next of kin of any deceased person if the
death of such person is alleged to have been caused by the said offence; or
• the legal guardian or curator of a minor or lunatic, if the said offence was committed against his/
her ward.

The main features of a private prosecution (as regulated by ss 7-16 CPA) are:

• A private prosecutor must be able to produce a nolle prosequi certificate (meaning “declining to
prosecute”). This is a certificate signed by the DPP stating that he/ she has seen the statements
or affidavits on which the charge is based and that he/ she declines to prosecute at the instance
of the state.
• The DPP must when, he/ she declines to prosecute, grant the nolle prosequi certificate at the
request of the person intending to prosecute privately. Should the DPP fail to do so, the person
may apply to a high court for a mandamus to order the DPP to make a decision/ issue the
certificate.
• The certificate lapses unless the private prosecution is instituted within three months of the date
of the certificate.
• The private prosecutor must provide security (currently R2 500.00) that he/ she will prosecute the
charge against the accused without undue delay. The money must be paid at the clerk of the
magistrate’s court. Where the private prosecutor fails to prosecute the charge without undue
delay, or where the charge is dismissed, the money is forfeited to the state.
• The court may require the private prosecutor to provide security for the costs that may be
incurred in respect of the accused’s defence to the accused. The accused may when he is called
upon to plead to the charge, apply to the court to review the amount determined. The court may
then require the private prosecutor to deposit an additional amount as the court may determine.
• A private prosecution must be instituted and conducted and all processes in connection with it
issued in the name of the private prosecutor.
• The indictment, charge sheet or summons must describe the private prosecutor with certainty
and precision and must, except in the case of a body referred to in section 8, be signed by such
prosecutor or his/ her legal representative.
• If the private prosecutor does not appear on the day set down for the appearance of the accused
in the magistrate’s court or for the trial of the accused, the charge against the accused must be
dismissed, unless the court has reason to believe that the private prosecutor was prevented from

46
 being present by circumstances beyond his/ her control, in which event the court may adjourn the
case to a later date.
• Where the charge is so dismissed, the accused is discharged and may not, in respect of that
charge, be prosecuted privately again. The DPP (or prosecutor with the DPP’s consent),
however, may later prosecute the accused.
• A private prosecution must be conducted in the same manner as an ordinary criminal
prosecution. A private prosecution may be brought before the court only by way of summons in
the case of a lower court, or an indictment in the case of a superior court, except where the
accused is already under arrest in respect of an offence with regard to which a right of private
prosecution is vested in any body or person under section 8.
• Where the prosecution is instituted under section 7(1) and the accused pleads guilty to the
charge, the prosecution must be continued or taken over by the State.
• A DPP or a local public prosecutor acting on the instructions of the DPP may apply to the court
before which the private prosecution is pending to stop all further proceedings in the case so that
a prosecution for the offence in question may be instituted or continued at the instance of the
state. If such an application is made, the court must order accordingly.
• A private prosecutor other than a prosecutor contemplated in section 8 must, in respect of any
process relating to the private prosecution, pay to the clerk or, as the case may be, the registrar
of the court in question, the fees prescribed under the rules of court for the service or execution of
such process, for example, the fees of the sheriff of the court to serve the summons.
• The private prosecutor must pay the costs and expenses of a private prosecution.
• The court may, however, order a person convicted to pay the costs and expenses of the
prosecution, excluding a private prosecution instituted and conducted under section 8.
• Where a private prosecution is instituted after the grant of a nolle prosequi certificate by a DPP
and the accused is convicted, the court may order the costs and expenses of the private
prosecution to be paid by the state.
• Where, in a private prosecution other than a prosecution contemplated in section 8, the charge
against the accused is dismissed or the accused is acquitted or a decision in favour of the
accused is given on appeal, the court dismissing the charge or acquitting the accused or deciding
in favour of the accused on appeal may order the private prosecutor to pay to such accused the
whole or any part of the costs and expenses incurred in connection with the prosecution or, as
the case may be, the appeal.
• Where the court thinks that a private prosecution was unfounded and vexatious, it must award to
the accused at his/ her request such costs and expenses incurred in connection with the
prosecution, as it may deem fit.
A private prosecution is subject to judicial review and the summons may be set aside if it constitutes an
abuse of the court process (Maughan v Zuma [2023] 3 All SA 484 (KZP); Zuma v Downer (788/2023)
[2023] ZASCA 132 (13 October 2023)). In President of the Republic of South Africa v Zuma

47
(0027676/2022) [2023] ZAGPJHC 783 (5 July 2023) the court granted an interdict against the private
prosecutor. The court held at para [149]:

[T]his Court finds that Mr Zuma instituted the private prosecution of Mr Ramaphosa for an ulterior
motive. Therefore, he lacks a peculiar and substantial interest in the issue of the private prosecution
instituted against Mr Ramaphosa. The charges would not lead to a conviction as they are grounded
on conduct that does not constitute a criminal offence. Therefore, the private prosecution
constitutes an abuse of process. Hence it stands to be declared unlawful, unconstitutional, invalid,
and set aside.

5.2.2 Private prosecutions under a statutory right

Section 8 of the CPA provides for private prosecutions under the statutory right. An Act of parliament may
specifically grant a body or a person the right to prosecute in respect of specific offences. Such
prosecutions remain under the control of the relevant DPP. Section 112 of the Local Government:
Municipal Systems Act 32 of 2000, for instance, provides for a staff member of a municipality so authorised
in terms of section 22(8)(b) of the NPA Act to conduct prosecutions, institute criminal proceedings and
conduct the prosecution in respect of a contravention of or failure to comply with a provision of the
following: (a) a by-law or regulation of the municipality; (b) other legislation administered by the
municipality; or (c) other legislation as the NDPP may determine. Another example is found in section
33(1) of the National Environmental Management Act 107 of 1998, which provides private prosecutions
(a) in the public interest or (b) in the interest of the protection of the environment in certain specified cases.

In National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional
Development [2016] ZACC 46, the Constitutional Court held that the NSPCA’s power to “institute legal
proceedings” as provided for in its empowering legislation, that is, Societies for the Prevention of Cruelty
to Animals Act, includes the power to privately prosecute. The court held that the NSPCA’s power to
institute legal proceedings cannot be divorced from its functions, which are intrinsically connected to
protecting animal welfare and preventing associated offences. The court held that, because the NSPCA
is explicitly charged with upholding several statutes regulating animal welfare and preventing animal
cruelty, the SPCA Act must be understood as incorporating private prosecutions of animal cruelty.

5.3 Prescription of the right to prosecute

Study: Section 18 of the CPA.

S v Cornick [2007] 2 All SA 447 (SCA) is a rape case successfully prosecuted 19 years after the incident.
S v Hewitt 2017 (1) SACR 309 (SCA) relates to the successful prosecution of sexual offences three

48
decades after the incidents. A court may, however, order the permanent stay of a prosecution in
exceptional circumstances even before the prescription period has expired. This is an extraordinary
remedy and will be discussed under the right to a trial without unreasonable delay (see chapter 6.5 below).
Prescription in criminal cases should not be confused with prescription in civil cases.

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6 Fair trial rights

6.1 Introduction
This section centres on several selected fair trial rights as provided for in section 35(3) of the Constitution.
• In S v Dzukuda; S v Tshilo 2000 (4) SA 1078 (CC) at para [11], the Constitutional Court held
that “[i]n considering what … lies at the heart of a fair trial in the field of criminal justice, one
should bear in mind that dignity, freedom and equality are the foundational values of our
Constitution.”
• In S v Zuma 1995 (2) SA 642 (CC), it was stated that “[t]he right to a fair trial conferred by the
Constitution is broader than the list of specific rights set out in the section conferring these rights.
It embraces a concept of substantive fairness.”
• The right to a fair trial is not only focused on the accused. It also requires fairness to the public as
represented by the state and has to instil public confidence in the criminal justice system. The
substance must prevail over form (S v Jaipal 2005 (1) SACR 215 (CC) at para [29]).
• A fair trial does not mean sympathy for crime and its perpetrators. “Nor does it mean a
predilection for technical niceties and ingenious stratagems; it simply requires that justice be
done” (Key v Attorney-general, Cape Provincial Division 1996 (4) SA 187 (CC) at para [13]).

6.2 The right to be informed of the charge

6.2.1 Introduction

In terms of section 35(3)(a) of the Constitution, every accused person has the right to be informed of the
charge with sufficient detail to answer it. The charge is regulated by Chapter 14 of the CPA. In a lower
court, the charge is contained in the charge sheet lodged with the clerk of the court, usually as annexures
to the J15 cover page or the original summons/ written notice. In the High Court, the charge is contained
in the indictment served on the accused. The prosecution, as dominus litis, elects the charges to be
preferred against the accused.

Several charges may be joined in the same proceedings against an accused at any time before any
evidence has been led in respect of any particular charge. Where several charges are so joined, each
charge must be numbered consecutively: for example, Count 1: murder; Count 2: robbery. The court may
if it is of the opinion that it will be in the interests of justice to do so, direct that an accused be tried separately
in respect of charges joined in this manner (s 81).

Study: Section 82 of the CPA.

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This provision is aimed at preventing unnecessary fragmentation of proceedings.

Study: Section 83 CPA.

The rule against the “splitting of charges” or the “duplication of convictions” is usually dealt with in the
context of s 83. It will be discussed in the section devoted to the judgment or verdict. An accused can be
convicted either on the main count or on the alternative count, not on both. The relevant charge must be
proven by the state.

In lower courts, the charge is set out in a charge sheet – a standard document called a J15 with
annexures. In the High Court, the charge is set out in an indictment. Below is an example of a charge
sheet, an annexure to a charge sheet.

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 CASE NUMBER: 234/ 2013
THE STATE v ISAK KOEN
(hereinafter the accused)
COUNT 1
Possession of a firearm
That the accused is guilty of the offence of contravening the provisions of Section 3
read with Sections 1, 103, 117, 120(1) (a), Section 121 read with Schedule 4 and
Section 151 of the Firearms Control Act 60 of 2000, and further, read with Section 250
of the Criminal Procedure Act 51 of 1977 and section 51(2) of the Criminal Law
Amendment Act 105 of 1997-

In that on or about ___________________ and at or near ___________________ in

the district/ regional division ____________________________ the accused did
unlawfully have in his possession the following firearm, to wit a 9mm Parabellum Calibre
Norinco Model 201 C Semi-automatic pistol without holding a licence, permit or
authorization issued in terms of the Act to possess that firearm.

COUNT 2
Theft
That the accused is guilty of the offence of THEFT
In that upon or about ______________ (date) and at or near __________________, in
the district/ regional division of, the accused did unlawfully and intentionally steal
___________________________ to the value of R ______________, the property or
in lawful possession of one ___________________________.

6.2.2 The accused may examine the charge

The accused may examine the charge at any stage of the relevant criminal proceedings (s 80 CPA).

6.2.3 Right of access to the police docket

A police docket forms a prosecutor’s brief. Police dockets normally consist of three sections. Section A
contains statements from witnesses, expert reports and documentary evidence. Section B contains
internal reports and memoranda, and section is C the investigation diary (NDPP v King 2010 (2) SACR
146 (SCA)).

In Shabalala v Attorney-General of the Transvaal 1996 (1) SA 725 at para [72], the court held that the
state’s absolute docket privilege (as was the law at the time), which protects from the disclosure of all the
documents in a police docket, is unconstitutional under all circumstances. The court held as follows:

53
 3. Ordinarily an accused person should be entitled to have access to documents in the police docket
which are exculpatory (or which are prima facie likely to be helpful to the defence) unless, in very
rare cases, the State can justify the refusal of such access on the grounds that it is not justified for
the purposes of a fair trial.

4. Ordinarily the right to a fair trial would include access to the statements of witnesses (whether or
not the State intends to call such witnesses) and such of the contents of a police docket as are
relevant in order to enable an accused person properly to exercise that right, but the prosecution
may, in a particular case, be able to justify the denial of such access on the grounds that it is not
justified for the purposes of a fair trial. This would depend on the circumstances of each case.

5. The State is entitled to resist a claim by the accused for access to any particular document in the
police docket on the grounds that such access is not justified for the purposes of enabling the
accused properly to exercise his/ her right to a fair trial or on the ground that it has reason to believe
that there is a reasonable risk that access to the relevant document would lead to the disclosure of
the identity of an informer or State secrets or on the grounds that there was a reasonable risk that
such disclosure might lead to the intimidation of witnesses or otherwise prejudice the proper ends of
justice.

6. Even where the State has satisfied the Court that the denial of access to the relevant documents
is justified on the grounds set out in paragraph 5 hereof, it does not follow that access to such
statements, either then or subsequently must necessarily be denied to the accused. The Court still
retains a discretion. It should balance the degree of risk involved in attracting the potential prejudicial
consequences for the proper ends of justice referred to in paragraph 5 (if such access is permitted)
against the degree of the risk that a fair trial may not endure for the accused (if such access is
denied) …

See also S v Crossberg 2008 (2) SACR 317 (SCA), where the court considered the approach to be
followed in a case where at least thirteen statements made by witnesses were not filed in the docket and
as a result not disclosed to the prosecution and consequently to the accused. The docket had not been
properly maintained and no proper entries regarding the taking of statements were recorded.

Ordinarily, documents tendered by the prosecution that is relevant to the accused’s case or are likely to
comprise the case against the accused are those contained in section A of the docket and are disclosed
based on the rule in Shabalala (King (above) at paras [29]-[30]). The mere assertion of a right of access
to “relevant” documents without any prima facie facts to establish relevance is insufficient (King above at
para [32]). In King, it was held that the accused was not entitled to a detailed description of documents
contained in the “B” and “C” sections, based on the assumption that all withheld documents were in some
way relevant to the prosecution. The King case also considered the interrelationship between the
Promotion of Access to Information Act 2 of 2000 (PAIA) and the rules of disclosure in criminal cases.
PAIA requires compliance with certain formalities as a pre-condition for access to information held by the

54
state. Section 40 of the Act contains a prohibition of disclosure of documents that are privileged from
production in legal proceedings. Section 39 entitles the NDPP to refuse the request for access on certain
grounds. The Act does not apply to a record of a public body or a private body if
• that record is requested for criminal or civil proceedings;
• so requested after the commencement of such criminal or civil proceedings, as the case may be; and
• the production of or access to that record is provided for in any other law.
“Other law” refers in this context to the body of law which includes the rules relating to discovery, disclosure
and privilege. If access to information is requested for criminal proceedings, the right to his has to be
sought in the normal rules of discovery (as per Shabalala’s case) (King at para [39]).

In Panayiotou v S 2017 (1) SACR 354 (ECP), the court granted the accused access to the “C” section of
the docket on the basis that it was required for him to be able to adduce and challenge evidence to be
presented at trial. In Du Toit v The Magistrate 2016 (2) SACR 112 (SCA), the question arose as to
whether the prosecution was obliged to furnish the accused with copies of images of alleged child
pornography as part of pre-trial disclosure. With reference to international and constitutional obligations,
the court held that adequate weight had to be accorded to the interests of the children. The court held that,
given the secrecy inherent in the production and distribution of child pornography, the prosecution properly
exercised its discretion not to make the images available to the defence. The court found that the offer by
the prosecution to arrange for legal representatives and any expert for the defence to view the images at
an office at either the local police station or the court was adequate to strike a balance between the
accused’s right to information on the hand, and the protection of the children in question on the other.

A legal practitioner will ordinarily obtain the content of the docket after addressing a formal request in
writing to the relevant prosecutor/ DPP.

6.2.4 The delivery of further particulars

Study: Section 87 of the CPA provides that an accused may, at any stage before any evidence in respect
of any particular charge has been led, request in writing that the prosecution furnishes further particulars
of any matter alleged in the charge.

The courts must guard against the abuse of s 87, where the accused’s aim is not to advance the proper
administration of justice but rather to obfuscate the issues. The purpose of a request for further particulars
is not to allow the accused to search for possible loopholes or defences, apart from the facts and/ or
instructions given to legal representatives by the accused (Sithole v S (25/ 2016) [2017] ZAFSHC 160 (12
September 2017)).

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6.3 Essentials of the charge

Study: Section 84 CPA states what the elements of a valid charge are.

The information must be set out with reasonable sufficiency to inform the accused of the nature of the
charge. Where any of the particulars are unknown to the prosecutor, it is sufficient to state that fact in the
charge. Charges must be formulated with clarity and, where reliance is placed on statutory provisions, the
appropriate provisions must be identified (S v BM 2014 (2) SACR 23 (SCA)). Where the state relies on
the doctrine of common purpose, this fact must be disclosed in the charge (Msimango v S 2018 (1) SACR
276 (SCA)).

If the time at which the offence was allegedly committed is not a material element of it, the failure to specify
the time does not render the charge defective (S v Vilakazi 2016 (2) SACR 365 (SCA)). It is not a
requirement for a valid charge that it should state or specify the penal consequences (sentencing provision)
following a conviction (DPP v Prins (Minister of Justice and Constitutional Development) (369/ 12)
[2012] 106 ZASCA (15 June 2012). It is desirable for a charge to contain a reference to the applicable
minimum sentencing provision. The ultimate test is whether the accused had a fair trial (S v Legoa 2003
(1) SACR 13 (SCA); S v Ndlovu 2003 (1) SACR 331 (SCA); S v Kolea 2013 (1) SACR 409 (SCA)).

A previous conviction may not be referred to in the charge unless it is an element of the offence the
accused is charged with, for instance escaping from lawful custody after the accused had been sentenced
to a term of imprisonment (s 89). Where it is alleged that an accused on diverse occasions during any
period committed an offence in respect of any particular person, the accused may be charged in one
charge with the commission of that offence on diverse occasions during a stated period (s 93). Sections
95-104 of the CPA contain various further rules applicable to specific charges.

6.4 Certain omissions or imperfections do not invalidate the charge

Study: Section 92 of the CPA.

6.5 An alibi and the date of the offence

Study: Section 93 of the CPA.

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6.6 Objection to the charge

Study: Section 85 of the CPA provides for the ground upon which an accused may lodge an objection and
the consequences if the objection is upheld.

6.7 Correcting the charge

There are essentially two methods to correct mistakes or omissions in the charge, namely the amendment
of the charge and the curing of the charge by evidence.

6.7.1 Amendment of the charge

Study: Section 86 of the CPA deals with the amendment of the charge.

This section does not authorise the amendment of a charge that results in the creation of a new charge by
substituting one charge for another. A distinction should be drawn between an amendment of a
charge and the substitution of such a charge. A charge has been amended where, in its amended form,
a degree of that of which has been amended has been retained. On the other hand, if in its proposed
amended form, there would be no identification with the original charge, the proposed amendment will in
effect be a substitution (S v Kruger 1989 (1) SA 785 (A); S v Van Wyk 1994 (1) SACR 183 (NC); S v
Ndike (CA&R 244/ 2018) [2018] ZAECGHC 103 (25 September 2018)). Whether the accused is prejudiced
depends on the facts of each case. Prejudice will always exist unless it can be established that the defence
or response of the accused person would have remained the same had the state amended the charge
(Moloi v Minister for Justice & Constitutional Development 2010 (2) SACR 78 (CC) at para [88a]).
The state must prove the absence of prejudice (S v Mpambanso 2013 (2) SACR 186 (ECB)). The
presiding officer must allow the accused to address the court on the amendment, the failure of which
constitutes a procedural irregularity (S v Thakeli 2018 (1) SACR 621 (SCA)). In S v Koeries 2023 (2)
SACR 130 (WCC) the heading of the charge sheet referred to the offence of culpable homicide, but the
charge itself referred to theharge-sheet headed 'culpable homicide', but the content referred to statutory
offence under road traffic legislation. The accused pleaded guilty and asmitted all elements of culpable
homicide. The high that the accused would not be prejudiced prejudice if court substituted the statutory
offence with offence of culpable homicide where intention of accused at all times was to plead guilty to
that charge.

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6.7.2 Defect in charge cured by evidence (s 88 CPA)

Study: Section 88 of the CPA. The same considerations regarding prejudice in respect of the amendment
of the charge, mentioned above, are applicable.

6.8 The right to a public trial

6.8.1 Introduction

Section 35(c) of the Constitution provides that every accused person has a right to a fair trial, which
includes the right to a public trial before an ordinary court.

Study: Section 152 of the CPA confirms these public trial or open court trial principles.

The principle of open justice promotes the accountability of courts and the administration of
justice. Open justice contributes towards the retention of public confidence in the judiciary and lies at
the heart of the oft-quoted principle “that justice should both be done and manifestly seen to be done”
(Centre for Child Law v Media 24 Limited (CCT261/18) [2019] ZACC 46 (4 December 2019) at para
[94].) This principle means that court proceedings must, where possible, be meaningfully accessible to
any member of the public who wishes to be apprised of such proceedings (Van Breda v Media 24
Limited; NDPP v Media 24 Limited 2017 (2) SACR 491 (SCA) at para [47]).

6.8.2 Circumstances in which criminal proceedings do not have to take place

in open court

Study: Section 153 of the CPA provides for numerous exceptions to the open court rule.
Study: Sections 154 and 335A of the CPA, on the other hand, prohibit the publication of certain information
in connection with criminal proceedings.

See Centre for Child Law v Media 24 Limited (CCT261/18) [2019] ZACC 46 (4 December 2019) where
protection was extended to victims, as opposed to accused persons, and it was held that victims do not
forfeit the protections upon reaching the age of 18 but may consent to the publication of their identity after
reaching adulthood or may approach a competent court.

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In addition, a judge or magistrate may order the arrest of the offender committing an offence in the
presence of the court. If any person other than an accused, who is present at criminal proceedings, disturbs
the peace or order of the court, the court may also order that such person be removed from it and that he/
she be detained in custody until the rising of the court (s 179 CPA).

6.8.3 Television broadcasting of court proceedings

The issue of the presence of television broadcasting proceedings was thoroughly analysed by the
Supreme Court of Appeal in Van Breda v Media 24 Limited; NPP v Media 24 Limited (2017 (2) SACR
491 (SCA). The court held that:
• The trial court must exercise proper discretion, having regard to the circumstances of each case.
• The default position is that there can be no objection to the media recording and broadcasting
counsel’s address and all rulings and judgments delivered in open court.
• When a witness objects to coverage of his/ her testimony, such witness should be required to
assert such objection before the trial judge, specifying the grounds for it and the effects he/ she
asserts such coverage would have upon his/ her testimony.
• This approach entails a witness-by-witness determination and recognises that a distinction may
have to be drawn between expert, professional and lay witnesses. (Professional witnesses
include police officers.)
• Cameras are permitted to film or televise all non-objecting witnesses, and spurious objections
can also be dealt with.
• If the judge/ magistrate determines that a witness has a valid objection to cameras, alternatives
to regular photographic or television coverage could be explored that might lay the witness’ fears
to rest. For example, television journalists are often able to disguise the identity of a person being
interviewed by means of special lighting techniques and electronic voice alteration, or merely by
shielding the witness from the camera.
• In other instances, the broadcasting of testimony of an objecting witness could be delayed until
the trial is over.

Section 159A-D of the CPA provides for the postponement of certain criminal proceedings through audio-
visual links.

6.8.4 Evidence through an intermediary

Section 170A of the CPA provides for the appointment of intermediaries.

59
 • If it appears to the court that it would expose any witness under the biological or mental age of 18
years to undue mental stress or suffering if he/ she testifies at such proceedings, the court may
appoint an intermediary to enable such witness to give his/ her evidence through him/ her. The
court may also appoint an intermediary of the witness is a person who suffers from a physical,
psychological, mental or emotional condition; or who is an older person as defined by the Older
Persons Act 13bof 2006).
• No examination, cross-examination or re-examination of any witness in respect of whom a court
has appointed an intermediary, except examination by the court, shall take place in any manner
other than through that intermediary.
• The intermediary may (unless the court directs otherwise) convey the general purport of any
question to the relevant witness.

If the court appoints an intermediary, the court may direct that the relevant witness must give his/ her
evidence at any place
• informally arranged to set that witness at ease;
• so situated that any person whose presence may upset that witness is outside the sight and
hearing of that witness; and
• that enables the court and any person whose presence is necessary at the relevant proceedings
to see and hear, either directly or through the medium of any electronic or other devices, that
intermediary as well as that witness during his/ her testimony.

The minister determines which classes or categories of persons may be appointed as intermediaries in
the Government Gazette. The court must provide reasons for refusing any application or request by the
public prosecutor for the appointment of an intermediary in respect of child complainants below the age of
14 years. See in this regard DPP, Transvaal v Minister of Justice and Constitutional Development
2009 (2) SACR 130 (CC).

6.8.5 The right to be “mentally” present

It is a basic prerequisite for criminal liability that the accused must have had criminal capacity at the time
of the commission of the offence. This means he/ she must have been capable of appreciating the
wrongfulness of his/ her act or omission and must have been capable of acting in accordance with an
appreciation of the wrongfulness of his/ her act or omission (s 78(1) CPA).

Apart from the requirement of criminal capacity, the accused must also possess the intellectual capacity
to understand the proceedings to make a proper defence. Some aspects of the previous version of s 77
were held to be unconstitutional in De Vos NO v Minister of Justice and Constitutional Development

60
2015 (2) SACR 217 (CC). The legislature has since amended sections 77 and 78 to bring it into theme
with this decision.

Section 77 deals with the procedure to be followed when the court doubts the ability of the accused to
understand the proceedings, whilst section 78 deals with the procedure where the accused’s criminal
responsibility due to mental illness or intellectual disability is in doubt. In both instances, the court may
direct that the matter be inquired into and reported on in terms of s 79 of the CPA. For this purpose, the
court may commit the accused to a psychiatric hospital or other institution designated by it for periods not
exceeding 30 days at a time. The accused does not have to appear in court after the expiry of the first 30
days, unless he/ she or his/ her legal representative makes such a request. Section 79, amongst others,
provides for the constitution of the panel of mental health specialists to conduct the inquiry, while a more
extended panel for more serious offences is required. A detailed report by the prosecutor is to be provided
to the panel. If the finding of the panel is unanimous and not disputed by the prosecutor or the accused,
the court may make a determination on the report alone and without hearing further evidence. If the finding
is not unanimous, or is unanimous but disputed by any of the parties, the court must determine the matter
after having heard evidence. Evidence may be presented by the prosecution and the defence. The court
may also hear evidence from members of the panel.

If the court finds that the accused is capable of understanding the proceedings to make a proper defence
(s 77), or the accused has the necessary criminal capacity (s 78), the trial will continue ordinarily. If the
court finds that the accused had committed the act in question but was, by reason of mental illness or
intellectual disability not criminally responsible for the alleged crime, the court must find the accused
not guilty. If the accused has already been convicted, the court must set the conviction aside. The court
may make a range of orders depending on the seriousness of the crime, including detention in a psychiatric
hospital pending the decision of a judge in chambers; admission and detention in a health care
establishment as an involuntary health care user; the release of the person subject to conditions or
unconditionally; or the referral of a child to the Children’s Court. If the court finds that the accused had
diminished criminal capacity, it is taken into account at the sentencing stage.

If the court finds that the accused is unable to understand the proceedings, an informal trial on merits
is held to determine (on a balance of probabilities) whether the accused had committed the act or omission.
The court may then also make orders similar to those mentioned above. In S v Chauke 2016 (1) SACR
408 (SCA), the Supreme Court of Appeal provided useful guidelines for the proper report in terms of s 79
of the Criminal Procedure Act. It held that a court considering the matter must be satisfied that a sufficient
basis has been laid for the allegation of mental illness before it can direct that an enquiry be held under s
79 (at para [10]). The court further held that the court deciding the issue must have all relevant facts
regarding the accused's mental condition. The report should be based on a holistic assessment of all
relevant circumstances and facts, including the accused's psychiatric history, and should include

61
interviews with persons other than merely the medical personnel conducting the assessment. The court
must be guided by expert evidence (at paras [14]- [17].

6.9 The right to legal representation

6.9.1 The content of the right

The Constitution guarantees the right of an accused to choose and be represented by a legal practitioner
and be informed of this right promptly as well as the right to have a legal practitioner assigned to him/ her
by the state and at state expense if substantial injustice would otherwise result, and be informed of this
right promptly (s 35(3)(f) and (g) of the Constitution).

The Legal Practice Act 28 of 2014 regulates the legal profession in South Africa. The Legal Practice
Council and its Provincial Councils regulate the affairs of and exercise jurisdiction over all legal
practitioners (attorneys and advocates) as well as candidate legal practitioners.

Study: Chapter 11 CPA and Chapter 11 CJA provide for the right to legal representation.

The main features of this right, with some additional comments, are discussed below.
• In Mphukwa v S (CA&R 360/2004) [2012] ZAECGHC 6 (16 February 2012), the court discussed
the requirements for a proper explanation of the right to legal representation. The
explanation of the right to legal presentation by the court should take the form of an enquiry. The
court must be satisfied that the accused has understood the importance of the right. If the
accused person elects to conduct his/ her own defence, the court has to establish whether such
an election was not occasioned by a lack of means or ignorance. If the accused lacks the means
to pay for legal representation or is ignorant of the effect of legal representation, this should be
investigated, and the explanation should include a thorough explanation of his/ her right to legal
representation at state expense. The court should also try to instil in the accused the knowledge
that the Legal Aid lawyers are not government lawyers, but independent practitioners who also
operate in the interest of every accused person whom they represent in court. The explanation of
the consequences of not having a legal representative when an accused person is facing serious
charges is important, and the court should make sure that the accused person has clearly
understood the danger of not being legally represented. Subsequently, the accused should be
encouraged to exercise the right to legal representation. The entire explanation must be properly
recorded (also see S v Sikhipha (262/ 05) [2006] ZASCA 73).
• Every accused must be given a reasonable opportunity to obtain legal assistance. An accused
ought not to be lightly deprived of the important right to legal representation and a postponement

62
 for that purpose should not be hurriedly refused (S v Oakers 1990 (1) SACR 147 (C); S v
Dangatye 1994 (2) SACR 1 (A)). The application of the rule regarding legal representation is
context-sensitive. In any given situation, the enquiry is always as to whether an accused's fair-
trial right has been infringed (S v May 2005 (2) SACR 331 (SCA); S v Shiburi 2018 (2) SACR
485 (SCA)).
• An accused, however, cannot be allowed to play cat and mouse with the court. Where the
accused fails to appoint a legal representative after numerous postponements and attempts to
frustrate the process and does not want the trial to proceed, the court will be justified to refuse a
further postponement if the accused to obtain legal representation (S v Dibakoane 2016 (1)
SACR 532 (GP)).
• Where the legal representative withdraws from the case, the court ought to enquire from the
accused whether he/ she wishes to have an opportunity for instructing another legal
representative and whether he/ she is ready to undertake his/ her own defence. Where the
presiding officer fails to do so and proceeds with the trial, he/ she is committing an irregularity (S
v Khoali 1990 (1) SACR 276 (O); S v Owies 2009 (2) SACR 107 (C); S v Mafika 2016 (1) SACR
623 (FB)).
• If an accused refuses or fails to appoint a legal adviser of his/ her own choice within a reasonable
time and his/ her failure to do so is due to his/ her fault, the court may, in addition to any order
which it may make in terms of section 342A [see discussion of this section under the right to a
trial without undue delay] order that the trial proceeds without legal representation unless the
court is of the opinion that that would result in substantial injustice, in which event the court may,
subject to the Legal Aid South Africa Act, 2014, order that a legal adviser is assigned to the
accused at the expense of the state. The court may order that the costs of such representation
be recovered from the accused. Further, the accused may not be compelled to appoint a legal
adviser if he/ she prefers to conduct his/ her own defence.
• The Legal Aid South Africa Act 39 of 2014 aims to give effect to the constitutional requirement of
legal aid at state expense. Legal Aid SA mostly provides legal services by salaried legal
practitioners employed at its justice centres. In criminal matters, one of the models for legal
service delivery involves the stationing of salaried legal practitioners at most district and regional
magistrate’s courts. Section 22 of the Act provides for the prerequisites and procedures that a
court in criminal proceedings must follow when directing that a person be provided with legal
representation at state expense.
• The legal representative of the accused must act competently (S v Halgryn [2002] 4 All SA 157
(SCA). He/ she must acquaint himself/ herself properly with the state’s case against the accused
and with the accused's defence; put such defence in full to state witnesses; and challenge or
cross-examine state witnesses effectively (S v Mafu 2008 (2) SACR 653 (W); S v De Beer 2016
(2) SACR 106 (GP); S v Chabedi 2004 (1) SACR 477 (C); S v Ndlanzi 2014 (2) SACR 256
(SCA)). The right to legal representation means the right to representation that is competent and

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 of such quality and nature that it ensures that the trial is indeed fair. If unwanted or inept advice of
counsel unfairly thwarts the exercise of that right, the accused's right to a fair trial is infringed (S v
Tandwa 2008 (1) SACR 613 (SCA)).
• A legal representative may not undertake the defence of accused who incriminated each other
reciprocally or who have mutually destructive versions of the facts. If it appears, in the course of
the trial, that there is such a conflict of interest, the legal representative must immediately
withdraw from the defence of all accused (Mvatha v Law Society of the Northern Province (A
989/ 2013) [2014] ZAGPPHC 565 (7 August 2014)).
• In R v Matonsi 1958 (2) SA 450 (A) at 458 A-B, the view was expressed that “while a legal
representative assumes control over the conduct of the case, that control is always confined to
the parameters of the client’s instructions. The other side of the coin is that, in the event of an
irresolvable conflict between the execution of a client’s mandate and the legal representative’s
control of the case, the legal representative must withdraw or the client must terminate his or her
mandate where such an impasse arises. An accused person cannot simply remain supine until
conviction.” It is further mentioned that the ultimate choice as to whether to plead guilty or not
guilty is that of the accused. Also see Pretorius v DPP 2011 (1) SACR 54 (KZP)).
• See The CODE OF CONDUCT FOR ALL LEGAL PRACTITIONERS, CANDIDATE LEGAL
PRACTITIONERS AND JURISTIC ENTITIES
For purposes of this module, you must acquaint yourself with PART VI of the Code.
• Legal representatives are officers of the court, as they are admitted to practice by the High Court.
They “are required to be of complete honesty, reliability and integrity. The need for absolute
honesty and integrity applies both in relation to the duties owed to their clients as well as to the
courts” (Johannesburg Society of Advocates v Nthai 2021 (2) SA 343 (SCA); Also see S v
Kwaza 2022 (1) SACR 64 (WCC) regarding the dishonesty of the legal representative).

6.9.2 The undefended accused

The rules of practice in respect of the undefended accused, that is, the accused who elects to conduct his/
her own defence was summarised by Snellenburg AJ in S v Mofokeng 2013 (1) SACR 143 (FB) at para
[17]:
• Before an accused is called upon to plead, the presiding judicial officer must examine the charge
sheet, ascertain whether the essential elements of the alleged offence(s) have been averred with
reasonable clarity and certainty, and then give the accused an adequate and readily intelligible
exposition of the charge(s) against him.
• The accused should be informed by the presiding officer or the prosecutor of the operation of any
presumption he/ she may have to rebut, and the prosecutor should inform the court and the

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 accused of the content of the evidence intended to be led unless the charge sheet already makes
an appropriate reference to it and the factual basis for bringing it into operation.
• Where it is competent for a court to convict an accused of an offence other than the one alleged
in the charge sheet, a judicial officer may be obliged to inform an undefended accused of the
competent verdict (see the chapter on Judgment/ Verdict hereunder for a discussion of
competent verdicts)
• At all stages of a criminal trial, the presiding judicial officer acts as the guide of the undefended
accused. The judicial officer is obliged to inform the accused of his/ her basic procedural rights.
• During the state’s case, a presiding judicial officer is at times obliged to assist an undefended
accused in his/ her defence. Where an undefended accused experiences difficulty in cross-
examination, the presiding judicial officer is required to assist him/ her in (a) formulating his/ her
question, (b) clarifying the issues and (c) properly putting his/ her defence to the state witnesses.
• Where, through ignorance or incompetence, an undefended accused fails to cross-examine a
state witness on a material issue, the presiding judicial officer should question — not cross-
examine — the witness on the issue, to reduce the risk of a possible failure of justice.
• If at the close of the state’s case, an undefended accused is not discharged, the presiding judicial
officer is obliged to inform him/ her of his/ her rights and, in unequivocal terms, explain the
courses open to him/ her.
• The judicial officer is obliged to inform the undefended accused in clear and simple language of
any presumption the prosecutor is relying on, the implications of this and how it can be rebutted.
• The judicial officer should assist an undefended accused whenever he/ she needs assistance in
the presentation of his/ her case and should protect him/ her from being cross-examined unfairly.
• The judicial officer has a general duty to ensure that unrepresented accused fully understand
their rights and the recognition that, in the absence of such understanding, a fair and just trial
may not take place. This includes the right to legal representation, especially where the charge is
serious. In such an event, the accused should be informed of the seriousness of the charges and
the possible consequences of a conviction. In cases where the charges are extremely serious, it
may be appropriate to encourage the accused to exercise his/ her right to legal representation
and the option to apply for Legal Aid assistance. Section 35(3) of the Constitution also
guarantees these rights. For practical examples of explanations to the undefended accused, see
D Erasmus “Procedural explanations and choices: The undefended accused in a minefield” 2009
Law, Democracy & Development 13-39.

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6.10 The right to a trial before an ordinary court

6.10.1 The court sturcture

Study: Sections 165 and 166 of the Constitution.

6.10.2 The criminal trial courts and their jurisdiction

[Link] The magistrates’ courts (lower courts)

The Magistrates Court Act 32 of 1944 (MCA) provides for the establishment of the magistrates’ courts of
South Africa. The vast majority of criminal cases are tried in these courts. There are two types of
magistrates’ courts, firstly “ordinary” magistrates’ courts are established for districts (simply referred to as
magistrates’ courts or district courts). The boundaries of district courts are mostly aligned with
municipal ones. One will find a district court in almost every town in South Africa. The MCA also provides
for the establishment of periodical courts (s 2(i)(j)). This is a seat other than the normal seat of the
magistracy, for instance where the magistrate travels to a small outlying town once a week to preside over
criminal cases. The “main” court, however, retains concurrent jurisdiction with the periodical court (s 27
MCA). This simply means that the accused may be tried at the seat of the main or periodical court. The
presiding officer in a magistrates’ court is called a magistrate.

The second type of magistrates’ courts is those established for a regional division, known in practice simply
as “regional courts”. These courts are established for several districts, typically the districts within a
province - for instance, the North-West Regional Division. Regional courts may try more serious offences
and they enjoy enhanced penal jurisdiction – they may even impose life imprisonment for certain offences.
Regional courts are mostly found in bigger centres, but they travel widely to magistrates’ courts in outlying
towns to try criminal cases. Initially, regional courts exercised criminal jurisdiction only. Since 2010 they
also have civil jurisdiction. The presiding officer in a regional court is a regional magistrate. The most senior
magistrate of a regional division is called the regional court president. In court, a magistrate is addressed
as “Your Worship”.

[Link] Jurisdiction of lower courts in respect of offences (“substantive jurisdiction”)

Section 89 of the Magistrates’ Court Act provides for the jurisdiction of lower courts in respect of offences:

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 • A district court has jurisdiction over all offences, except treason, murder, rape and compelled
rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007, respectively.
• A regional court has jurisdiction over all offences except treason.

The Prosecution Policy and Policy Directives as well as directives of the different DPPs guide prosecutors
on the election of the court in which the accused should be tried. The prosecution as dominus litis selects
the appropriate forum for the trial.

[Link] Local limits of the jurisdiction (territorial jurisdiction)

Study: Section 90 of the Magistrates’ Court Act provides for the territorial jurisdiction of lower courts.

[Link] Limits of the jurisdiction in the matter of punishments (penal jurisdiction)

S 92 of the Magistrates’ Court Act provides for the general penal jurisdiction of lower courts. These
penalties may be imposed for common law crimes and for statutory crimes where the legislation in terms
of which the accused was convicted does not provide for any penalty. Also see DPP, Western Cape v
Prins 2012 (2) SACR 183 (SCA), where it was held that section 276(1) of the CPA empowers courts to
impose sentences upon people convicted of sexual offences under the Sexual Offences Act, while the fact
that the Act at the time did not contain penalty provisions.

District courts may impose imprisonment not exceeding three years and a fine not exceeding R120 000.00.
Regional courts may impose imprisonment not exceeding 15 years and a fine not exceeding R600 000.00.
If the accused was convicted of a statutory offence, the court is bound to the penal provisions of that
particular legislation. The court may then not use the provisions of the Magistrates’ Court Act to impose a
more severe sentence. Specific legislation may, however, also increase the general jurisdiction of lower
courts. The National Road Traffic Act, Drugs and Drug Trafficking Act and Firearms Control Act are
examples of legislation that substantially increase the jurisdiction of district courts. The Criminal Law
Amendment Act 105 of 1997 provides for the imposition by regional courts of life imprisonment for certain
offences.

[Link] The composition of magistrates’ courts

The presiding officer in a lower court is a magistrate or a regional magistrate. Section 93ter of the
Magistrates’ Court Act contains provisions for the appointment by the presiding magistrate of one or two
assessors. The Act also provides for considerations to be taken into account for the appointment of

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assessors. Assessors are rarely used in lower courts. Lay assessors are usually employed, although the
court may appoint experts in a certain field in order to assist it. Very importantly, though, where an accused
is standing trial in a regional court on a charge of murder, the regional magistrate must call upon two
assessors, unless the accused requests that the trial be proceeded without assessors. If the accused
elects to continue without assessors, the magistrate may in his/ her discretion summon one or two
assessors to assist him/ her. A failure to consider the appointment of assessors is a fatal irregularity and
the proceedings will be set aside on review or appeal (Gayiya v S (1018/ 15) [2016] ZASCA 65 (19 May
2016)).

Assessors must take the prescribed oath whereupon they become members of the court. Any matter of
law arising for decision at such trial and any question arising from this as to whether a matter for decision
is a matter of fact or a matter of law must be decided by the magistrate alone, and no assessor may have
a voice in any such decision. The magistrate may adjourn the argument upon any such matter or question
and may sit alone for the hearing of such argument and the decision of such matter or question. Upon all
matters of fact, the decision or finding of the majority of the members of the court shall be the decision
or finding of the court, except when only one assessor sits with the presiding judicial officer, in which case
the decision or finding of such judicial officer shall be the decision or finding of the court if there is a
difference of opinion. The Act also provides for the circumstances in which the magistrate may order the
recusal of an assessor and the procedure to be followed when an assessor has died, is absent, or
otherwise unable to continue with the trial.

6.10.3 High Courts

[Link] Jurisdiction

A division of the High Court has jurisdiction over all offences triable within its area of jurisdiction (s 21(1)
Superior Courts Act 10 of 2013). The High Courts may impose any sentence provided for by law. A high
court may not assume jurisdiction over offences committed beyond its territorial limits. The extension of
territorial jurisdiction of magistrates’ courts to four kilometres beyond their boundaries in terms of s 90(2)(a)
of the Magistrates’ Courts Act has no bearing on the territorial jurisdiction of the High Court (S v De Beer
(010/ 06) [2006] ZASCA 80).

In terms of section 7 of the Superior Courts Act, the Judge President of a Division of the High Court may,
by notice in the Gazette within the area under the jurisdiction of that division, establish circuit districts for
the adjudication of civil or criminal matters. In each circuit district of a division a court trial must held,
presided over by a judge of that division, , at least twice a year and at such times and places as may be
determined by the Judge President concerned. Such a court is called a circuit court.

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A High Court may, at any time after an indictment has been lodged with the registrar, and before the date
of trial, upon application by the prosecution and after notice to the accused, or upon application by the
accused after notice to the prosecution, order that the trial be held at a place within the area of jurisdiction
of such court other than the place determined for the trial, and that it be held on a date and at a time other
than the date and time determined for the trial (149(1) CPA).

[Link] Composition of high courts for purposes of criminal trials

Each Division of the High Court consists of a Judge President (JP) and one or more Deputy Judges
President and a number of judges (s 6(2) Superior Courts Act). Sections 145-146 of the CPA deal with the
composition of high courts in respect of criminal trials. The presiding officer in a high court is a single judge.
A judge has discretion to appoint one or two assessors. An assessor is defined as “a person, who in the
opinion of the judge … has experience in the administration of justice or skill in any matter which may be
considered at the trial.” Assessors are mostly lawyers (members of the legal profession; legal academics;
retired magistrates). The court may, however, also appoint as an assessor someone with specialised
knowledge in respect of issues that may arise at the trial, for instance an engineer or a medical practitioner.
Generally, assessors must assist the court in deciding issues of fact, and the majority decision is regarded
as the decision of the court – it is thus possible for two assessors to overrule a judge on issues of fact. In
cases where the judge is assisted by a single assessor and a difference of opinion arises, the decision of
the judge is regarded as the decision of the court. The judge alone decides upon a question of law or upon
any question whether any matter constitutes a question of law or a question of fact. The judge may sit
alone (that is, without assessors) for this purpose. The judge may, however, use discretion to allow
assessors to take part in a decision in response to the question as to whether evidence of a confession or
other statement by the accused is admissible against him/ her.

The following divisions of the high court exist (s 6(1) Superior Courts Act) and the main seat and local
seats are indicated as below.
(a) Eastern Cape Division – Makhanda [formerly Grahamstown] (with local seats in Port Elizabeth, Bisho
and Mthatha)
(b) Free State Division – Bloemfontein
(c) Gauteng Division – Pretoria, (with local seat in Johannesburg)
(d) KwaZulu-Natal Division – Pietermaritzburg (with local seat in Durban)
(e) Limpopo – Polokwane (with local seats in Thohoyando and Lephalale)
(f) Mpumalanga Division – Mbombela
(g) Northern Cape Division – Kimberley
(h) North West Division – Mahikeng
(i) Western Cape Division – Cape Town

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6.10.4 Accused brought before the wrong court

Study: Section 110 CPA. This provision does not empower a court to try an offence not falling within its
jurisdiction, but it relates to territorial jurisdiction.

6.10.5 Consolidated trial of offences committed in different jurisdictions

within South Africa

Section 22(3) of the National Prosecuting Authority Act 32 of 1998 authorises the NDPP or a duly
authorised Deputy National Director of Public Prosecutions to direct that an offence committed as a whole
or partially within the area of jurisdiction of one DPP be investigated and tried within the area of jurisdiction
of another DPP. Such a decision may only be taken if it is in the interests of justice. The directive must be
made in writing. Section 22(3) must be read with section 111 of the CPA under the outdated heading that
does not reflect the actual content of the provision as amended, namely that the “Minister may remove trial
to jurisdiction of another attorney-general”. Section 111 deals with various procedural prerequisites.
Section 111(1) of the Criminal Procedure Act provides that the direction for consolidating the criminal
proceedings must state the name of the accused, the relevant offence, the place at which the incident
occurred (if known) and the DPP in whose area of jurisdiction the relevant investigation and criminal
proceedings shall be conducted and commenced. The court so appointed by the NDPP is clothed with
jurisdiction over the offence in question as if the offence had been committed within the area of jurisdiction
of such court (s 111(2)). Section 90(8) of the Magistrates’ Court Act (quoted earlier) deals with the authority
of a DPP to consolidate the prosecution of offences committed within different districts of his/ her
jurisdiction.

6.10.6 Extraterritorial jurisdiction

Territoriality has been the traditional basis on which courts establish jurisdiction – in other words, our courts
only exercise jurisdiction over offences committed within the borders of South Africa. International and
South African jurisprudence, however, also recognises other methods of asserting jurisdiction. These
include “objective territoriality”, “protection of the state”, “nationality”, “passive personality” and “universal
jurisdiction”. These issues are usually dealt with in greater detail in a module on Public International Law.
Courts are often empowered to assert jurisdiction over crimes with an international dimension (S v Okah
[2018] ZACC 3 at paras [43]-[44]). This often occurs in terms of international obligations established by
bilateral treaties.

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Section 110A of the CPA provides that any South African citizen who commits an offence outside the area
of jurisdiction of the courts of the Republic and who cannot be prosecuted by the courts of the country in
which the offence was committed, due to the fact that the person is immune from prosecution as a result
of the operation of certain international treaties (for example in cases of diplomatic immunity), while that
person is found within the area of jurisdiction of any court in South Africa which would have had jurisdiction
to try the offence if it had been committed within its area of jurisdiction, that court is granted jurisdiction to
try that offence. No prosecution may be instituted for such an offence unless (a) the offence is an offence
under the laws of the Republic; and (b) the NDPP instructs that a prosecution be instituted against the
person.
Section 4(3) of The Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002
provides as follows:
(3) In order to secure the jurisdiction of a South African court for purposes of this Chapter, any person
who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed
to have committed that crime in the territory of the Republic if-
(a) that person is a South African citizen; or (b) that person is not a South African citizen but is
ordinarily resident in the Republic; or
(c) that person, after the commission of the crime, is present in the territory of the Republic;
or
(d) that person has committed the said crime against a South African citizen or against a
person who is ordinarily resident in the Republic.

Other examples of legislation extending the jurisdiction of South African courts are the Protection of
Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 and the Electronic
Communications and Transactions Act 25 of 2002 and the Civil Aviation Act 13 of 2009.

Theft is a continuous crime (Zondo v S (AR514/ 15) [2016] ZAKZPHC 48 (9 June 2016)). The theft
continues as long as the stolen property remains in the possession of a thief. Thus, if the accused had
stolen something in a foreign jurisdiction (for instance Lesotho) and brings it to South Africa, he/ or she
can be charged in any jurisdiction in South Africa wherein he/ she was still in possession of the stolen
goods (S v Kruger 1989 (1) SA 785 (A); S v Alabi (A129/ 11) [2011] ZAWCHC 326 (24 August 2011).

6.10.7 The independence and impartiality of trial courts

Section 34 of the Constitution provides as follows:

Everyone has the right to have any dispute that can be resolved by the application of law decided in
a fair public hearing before a court or, where appropriate, another independent and impartial tribunal
or forum.

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In S v Basson 2007 (3) SA 582 (CC), the court analysed the issue in respect of criminal trials and made
several important remarks:
• The impartiality of judicial officers is an essential requirement of a constitutional democracy and
is closely linked to the independence of courts.
• The requirement of impartiality is linked to the right of an accused person to a fair trial.
• Criminal trials must be conducted in accordance with notions of basic fairness and justice.
• The fairness of a trial is under threat if a court does not apply the law and assess the facts of the
case impartially and without fear, favour or prejudice.
• The requirement that justice must not only be done, but also be seen to be done has been
recognised as lying at the heart of the right to a fair trial.
• The right to a fair trial requires fairness to the accused, as well as fairness to the public as
represented by the state.
• The impartiality of a judicial officer is crucial to the administration of justice. So too is the
perception of his/ her impartiality.

Three principles of proper judicial behaviour were laid down in S v Rall 1982 (1) SA 828 (A), namely:
• A judicial officer must ensure not only that justice is done but in addition that it is seen to be done.
He/ she must therefore so conduct the trial that his/ her open-mindedness, impartiality and
fairness are manifest to all concerned with the trial and its outcome, especially the accused.
• A judicial officer should refrain from questioning witnesses or the accused in such a way or to
such an extent that it may preclude him/ her from detachedly or objectively appreciating and
adjudicating upon the issues.
• A judicial officer should refrain from questioning a witness or the accused in a way that may
intimidate or disconcert him/ her or unduly influence the quality or nature of his/ her replies and
thus affect his/ her demeanour or impair his/ her credibility.

A presiding officer must always act with courtesy and self-control and respect the dignity of everyone
involved in the criminal trial. In Sayed v S 2018 (1) SACR 185 (SCA), the court set aside proceedings
conducted by a regional magistrate and referred to a number of previous reported instances where the
rather outrageous conduct of the same magistrate had been found to be unacceptable. In S v Mafu 2008
(2) SACR 653 (W), the proceedings in a criminal trial were set aside on appeal. The court held that the
questioning by the presiding officer of the appellants was intimidating, hostile, repetitive and engineered
to entrap the appellants in order to get them to admit that they were guilty of the offence as charged. The
manner in which the questions were asked amounted to judicial harassment. The magistrate’s conduct
created an impression that he was not impartial, fair or open-minded and amounted to the presiding officer
taking over the prosecution of the appellants. Also see the Code of Judicial Conduct adopted in terms of
section 12 of the Judicial Service Commission Act 9 of 1994 (Government Gazette No 35802 of 18 October

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2012) and the Code of Conduct for Magistrates in Regulations for Judicial Officers in the Lower Courts
(Regulation 54A GG 16003 Reg Gaz 5403 of 21 October 1994, promulgated in terms of s 16 of the
Magistrates Act 90 of 1993).

6.10.8 Recusal of the judicial officer (magistrate/ judge)

It is a fundamental prerequisite for a fair trial and a judicial of officer must recuse (that is, withdraw/ step
down from presiding over the case) himself/ herself if there are reasonable grounds on the part of a
litigant for apprehending that the judicial officer, for whatever reasons, was or will not be impartial.
There is, however, a presumption in our law against partiality of the judicial officer, based on the
recognition that legal training and experience prepare presiding officers for the often difficult task of fairly
determining where the truth may lie. The effect of this presumption is that an applicant who alleges that a
judge or magistrate is biased or reasonably apprehended to be biased must establish that. Judges and
magistrates are human beings, who bring to their work their life experience, which means that they are not
neutral in an absolute sense. It is not improper for judges to have individual perspectives and for these to
be brought to bear on their adjudication of cases (President of the Republic of South Africa v South
African Rugby Football Union 1999 (4) SA 147 (CC)). The court may air all relevant considerations, and
this may sometimes result in robust debate which, is not necessarily an indication of personal animosity
or hostility (Moolla v DPP (30653/ 2010) [2012] ZAGPJHC 94 (23 March 2012)).

Not only actual bias but also the appearance of bias (perceived bias) disqualifies a judicial officer from
presiding over judicial proceedings. Continuing to preside after recusal should have occurred renders the
further proceedings a nullity. A court must not allow preconceived biases to affect his judgement (S v Le
Grange 2009 (1) SACR 125 (SCA) (at para [13]). In the SARFU case the test for bias was set out as
follows:
The question is whether a reasonable, objective and informed person would on the correct
facts reasonably apprehend that the Judge has not or will not bring an impartial mind to
bear on the adjudication of the case, that is a mind open to persuasion by the evidence and
the submissions of counsel.

An apprehension of bias may arise from an association or interest a judicial officer has with or in one of
the litigants or in the outcome of the case. It may also arise from conduct or utterances by a judicial officer
prior to or during proceedings. “Prejudgment” means that a decision is made or an opinion formed about
a person or issue before knowing or examining all the facts. In these situations, the judicial officer must
ordinarily recuse himself or herself (Mulaudzi v Old Mutual Life Assurance Company (South Africa)
Limited (95/ 2016) [2017] ZASCA 88 (6 June 2017).

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In S v Dube 2009 (2) SACR 99 (SCA), the Judge President of a division of the High Court had sat with
another judge in an appeal in which the advocate who represented the state was his wife. The SCA
accepted that no actual bias had been proved against the Judge President but considered that the
reasonable perception around this as entertained by the appellants was sufficient. The proceedings were
set aside and remitted to the High Court to for a re-hearing of the appeal before a differently constituted
court.

An accused cannot demand to be tried by a magistrate of a different race (S v Collier 1995 (2) SACR 648
(C)). It is generally undesirable for accused persons to appear in court in manacles, leg irons, chains or
prison clothing. It may indicate to a judicial officer that the accused has been brought from prison, where
he/ she is serving a sentence for a previous conviction and thus in effect place inadmissible evidence
before the court. It may also influence a judicial officer to draw an inference about an accused’s character,
for example that the he/ she is a dangerous person and a potential threat to the public, court officials or
the judicial officer. Some presiding officers have in the past not hesitated to recuse themselves when
accused persons appeared before them in this fashion. See S v Mthembu 1988 (1) SA 145 (A). For a
detailed discussion of the applicable principles see S v Phiri (2033/ 05) [2005] ZAGPHC 38 (4 April 2005)).

If the impartiality of the judicial officer is in question, the party affected may apply for the recusal of the
judicial officer. The application is made to the judicial officer. If the judicial officer refuses to recuse, it may
be a basis to bring a review application to the high court. It must, however, be emphasised that the test for
bias as set out above must be met. A recusal application should not be used as a tactical device or simply
because the litigant does not like the outcome of an interim order made during the course of the trial. “The
recusal of a presiding officer, whether it be a magistrate or a judge, should not become standard equipment
in a litigants arsenal but should be exercised for its true intended objective, which is to secure a fair trial in
the interests of justice in order to maintain both the integrity of the courts and the position they ought to
hold in the minds of the people who they serve”. The application must be brought as soon as is reasonably
possible. (Bennett v S; In Re: S v Porritt 2021 (1) SACR 195 (GJ)).

In S v Booysen 2016 (1) SACR 521 (ECG), it was held that a court hearing the bail application is required
to consider a variety of factors and must therefore consider evidence or information relating inter alia to
the applicant's character, propensity to commit offences, as well as his/ her relationship to witnesses and
the complainant. Evidence must also be considered as to the manner in which the offence was committed.
Previous convictions for relevant offences and pending charges are but one set of aspects which an
accused is obliged to disclose to the court hearing the bail application (at para [17]. Because of the nature
of bail proceedings, a court hearing the bail application could potentially form an unfavourable impression
of an accused person (at para [18]). The court held that in a bail application where formal consideration of
the numerous factors set out in s 60 of the CPA is heard, the presiding officer at the bail application will
ordinarily be disqualified from hearing the subsequent trial of the accused person (at para [25]).

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Once a presiding officer recuses himself/ herself from the case, the proceedings become a nullity and may
continue de novo (anew) before another presiding officer (S v Khamadi (R109/ 2019) [2019] ZAFSHC 75
(13 June 2019)).

6.11 The right to a trial without unreasonable delay

6.11.1 Introduction

S 35(3)(d) of the Constitution provides as follows:

Every accused person has a right to a fair trial, which includes the right to have their trial begin and
conclude without unreasonable delay.

A court before which criminal proceedings are pending may, from time to time during such proceedings, if
the court deems it necessary or expedient, adjourn the proceedings to any date on the terms which to the
court may seem proper and which are not inconsistent with any provision of the CPA (s 168 CPA). A party
is not entitled to a postponement – it is an indulgence granted by the court.

Judicial case-flow management plays an important role in ensuring that criminal trials are not unduly
delayed. Judicial officers should take active and primary responsibility to ensure that cases are finalised
without unreasonable delay. They must strive to finalise all matters as expeditiously as possible. They
must take active steps to avoid the lengthy incarceration of that awaiting trial prisoners (Norms and
Standards for the Performance of Judicial Functions GN 147 in Government Gazette No 37390 of 28
February 2014). Courts will often conduct a pre-trial hearing in order to certify that case is ready for trial
(see for instance the Criminal Practise Directives for the Regional Courts in South Africa (2017) 5th
revision).

A person may be subjected to various forms of prejudice merely by virtue of being an accused in criminal
trial. The accused may be subjected to social prejudice and invasions of liberty by virtue of his/ her possible
pre-trial detention, possible strenuous bail conditions and the repeated attendance of court on remand
dates (Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) at para [23]). Undue delays
also negatively impact on witnesses and victims and negatively reflect on the administration of justice.
Delays can be attributed to various factors, amongst others outstanding police investigations; the failure
of the state to provide copies of the docket or further particulars timeously; the withdrawal and change of
legal representatives and deliberate delaying tactics by the accused in order not to stand trial. Some delays
are systemic, such as resource limitations that hamper the effectiveness of police investigation or the
prosecution of a case, and delay caused by court congestion (Sanderson para [52]). In Moyo v Minister

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of Justice and Constitutional Development [2018] ZASCA 100 (20 June 2018) para 169, the court held
with reference to the “Stalingrad defence strategy” that it “has become a term of art in the armoury of
criminal defence lawyers. By allowing criminal trials to be postponed pending approaches to the civil
courts, justice is delayed and the speedy trials for which the Constitution provides do not take place. I
need hardly add this is of particular benefit to those who are well-resourced and able to secure the services
of the best lawyers.” Also see DA v President of the Republic of South Africa; EFF v State Attorney
[2019] 1 All SA 681 (GP)); Porritt v S (SS40/ 2006) [2018] ZAGPJHC 45 (2 March 2018). In Legal Aid
Board v S 2011(1) SACR 166 (SCA), it was held that “it had been made clear by the accused that they
“intend to employ every stratagem available to them in order to delay the commencement , and thereafter
continuation, of the trial for as long as they possibly can”. In NDPP v King 2010 (2) SACR 146 (SCA) at
para [5], the court held that the right to a fair trial “is not to make it impracticable to conduct a prosecution.
The fair trial right does not mean a predilection for technical niceties and ingenious legal stratagems, or to
encourage preliminary litigation – a pervasive feature of white collar crime cases in this country. To the
contrary: courts should within the confines of fairness actively discourage preliminary litigation. Courts
should further be aware that persons facing serious charges – and especially minimum sentences – have
little inclination to co-operate in a process that may lead to their conviction and any new procedure can
offer opportunities capable of exploitation to obstruct and delay. One can add the tendency of such
accused, instead of confronting the charge, of attacking the prosecution”.

6.11.2 Remedies for unreasonable delays in criminal proceedings

[Link] S 342A of the CPA

Study: Section 342A of the CPA provides for the powers of the court to investigate an unreasonable delay
and make an order in this respect. This remedy applies to “intra-curial delay”, that is, delay occurring after
the commencement of criminal proceedings (S v Naidoo 2012 (2) SACR 126 (WCC) at para [14]).

An order refusing a postponement, where the accused has pleaded to the charge, and an order of the
court considering the state’s and defence’s closed may not be issued unless exceptional circumstances
exist and all other attempts to speed up the process have failed and the defence or the state, as the case
may be, has given notice beforehand that it intends to apply for such an order. The court may not act of
own accord in these circumstances (S v Mokoena 2019 (2) SACR 355 (SCA)). Section 342A also operates
in favour of the state. See S v Ramabele 2020 (2) SACR 604 (CC), where the Constitutional Court upheld
an order of the trial court that the accused's cases were deemed closed after the state had brought an
application and no exceptional circumstances existed. Note that the provision regarding cost orders have
not yet come into operation.

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[Link] The extraordinary remedy: permanent stay of the prosecution

The court may order a permanent stay of a prosecution, thereby barring the prosecution of the accused.
This is a radical remedy that will not be granted lightly and definitely not in the absence of significant
prejudice to the accused. The accused will have to show that he/ she will suffer irreparable or
insurmountable trial prejudice (Bothma v Els 2010 (1) SACR 184 (CC); at para [67]). This involves
something more than the disadvantage caused by the loss of evidence. In order to determine whether
such an order should be granted, the court applied a balancing test in which the conduct of both the
prosecution and the accused were weighed and the following considerations examined: the length of the
delay; the reason the state assigns to justify the delay; the accused’s assertion of a right to a speedy trial;
prejudice to the accused and the nature of the offence - see Sanderson (above) and Bothma (above) -
in the latter case the CC refused to uphold such an order in respect of a 37-year pre-trial delay in respect
of sexual offences. In Rodrigues v NDPP (1186/ 2019) [2021] ZASCA 87 (21 June 2021), the SCA
confirmed the decision of the High Court to refuse a permanent stay of a prosecution when the prosecution
was instituted 47 years after the alleged commission of the offence. In that case, the role of the victims
was also considered. Major pre-trial abuses and dishonesty by the state may be the basis for such an
order (Bothma at para [31]; Van Heerden v NDPP (145/ 2017) [2017] ZASCA 105 (11 September 2017);
Also see DPP, Northern Cape v Brooks (505/ 19) [2020] ZASCA 80 (2 July 2020)). There are conflicting
judgments on the question as to whether a magistrate’s court may grant a permanent stay of prosecution
(S v The Attorney-General of the Western Cape 1999 (2) SACR 13 (C); S v Regional Magistrate,
Wynberg DPP KwaZulu-Natal v Regional Magistrate, Durban 2001 (2) SACR 463 (N); S v Naidoo
2012 (2) SACR 126 (WCC); Naidoo v Regional Magistrate for Durban Magistrates' Court 2017 (2)
SACR 244 (KZP); Van der Walt v DPP 2022 (1) SACR 320 (ECG)). It is submitted that judgments to the
effect that a lower court may not grant such an order should be preferred, as lower courts are creatures of
statute and cannot make orders beyond those conferred upon them in legislation. In DPP and Minister of
Justice and Constitutional Development v Phillips [2012] 4 All SA 513 (SCA) the SCA confirmed the
decision of a high court to permanently stay an appeal by the state due to an undue delay by the DPP to
prosecute the appeal. For a discussion of a number of cases on the topic of unreasonable delays see P
Du Toit ‘Recent cases: Criminal procedure’ (2019) South African Journal of Criminal Justice Vol 32 at 241–
242); P du Toit “Recent cases: Criminal procedure” 2022 South African Journal of Criminal Justice Vol 35
at 234-240).

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6.12 The right to be present when tried

6.12.1 Introduction

The accused has the constitutional right to be present when tried (s 35(3)(f) of the Constitution). This
principle is also confirmed by section 158(1) of the CPA. Trials in absentia are generally not allowed. There
are, however, some exceptions to the rule. Two other aspects will also be discussed here, namely
evidence through closed circuit television and evidence through an intermediary. Strictly speaking, the
accused is not “absent” from the trial in these circumstances. In addition, the accused does not only have
the right to be physically present, but he/ she must also have the intellectual capacity to understand the
proceedings so as to be able to properly defend him/ herself in the proceedings.

6.12.2 Closed circuit television or similar electronic media

Study: Section 158 provides that a court may, on its own initiative or on application by the public
prosecutor, order that a witness or an accused, if the witness or accused consents to this, give evidence
by means of closed-circuit television or similar electronic media. A court may make a similar order on the
application of an accused or a witness.

6.12.3 Circumstances in which criminal proceedings may take place in

absence of accused

Study: Section 159 CPA provides for circumstances in which criminal proceedings may take place in the
absence of the accused.
Study: Section 160 of the CPA provides for the procedure at criminal proceedings where the accused is
absent.

In the category of cases where the accused misbehaves so as to make it impossible for the court to
continue with the proceedings, git is desirable, if at all possible, to allow the case to stand down or postpone
it in order to allow the accused time to come to his/ her senses. The accused should also be informed
pertinently that the case can proceed in his/ her absence (S v Mokoa 1985 (1) SA 350 (O) at 354G –
355A; S v Tsinyane (1/ 2012) [2012] ZAFSHC 174 (20 September 2012); S v Motaung (29/ 2014) [2014]
ZAFSHC 108 (7 August 2014)).

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The court may also act in a summary manner to convict an accused for committing contempt in facie curiae
(s 108 Magistrates’ Court Act). This power must only be used if prompt and drastic action to preserve the
court’s dignity and the due carrying out of its functions are necessary. Presiding officers should not
overreact. It may at times be more dignified to simply ignore conduct that may technically constitute
contempt of court or to treat it less harshly than to convict the perpetrator of the offence. For a detailed
analysis of the issues see S v Lewis [2007] 3 All SA 477 (SCA); S v Meiring 2019 (1) SACR 227 (GJ); S
v James 2019 (1) SACR 95 (ECB).

6.13 The right to adduce and challenge evidence

6.13.1 Introduction
The accused has the right to challenge the evidence presented by the state and to adduce evidence to
answer the state’s case. Generally, evidence is presented viva voce (orally).

6.13.2 Evidence
A few selected issues regarding witnesses and evidence in criminal cases will be briefly discussed here
so as to explain how criminal proceedings are to be conducted. These aspects are, however, dealt with in
greater detail in the Law of Evidence module.

6.13.3 Evidence–in-chief
The party leading a witness must question the witness and place the necessary evidence before the court.
No leading questions (that is, questions suggesting the answer) may be asked at this stage, unless they
are in respect of introductory or issues not in dispute.

6.13.4 Witness to testify viva voce (s 161 CPA)

A witness must give his/ her evidence viva voce (orally), except where the CPA or other law expressly
provides otherwise. The expression “viva voce” shall, in the case of a deaf and dumb witness, be deemed
to include gesture-language (also see para 6.9 hereunder). In the case of a witness under the age of
eighteen years, it may include demonstrations, gestures or any other form of non-verbal expression.

The CPA provides for various instances where the mere production of affidavits or certificates may
constitute prima facie proof of a fact (for example in section 212 CPA). Where any evidence may be

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received upon its mere production, the prosecutor must read out such document in court unless the
accused is in possession of a copy of such document or dispenses with reading it (s 150(2)(b) CPA).

6.13.5 Witnesses must be examined under oath

Study: Section 162 of the CPA.

The oath may also be administered by the interpreter or intermediary “under the eyes” of the presiding
magistrate or judge (s 165 CPA and S v Pilane 2017 (2) SACR 154 (SCA)).

In S v Matshivha 2014 (1) SACR 29 (SCA) at paras [10]–[11], it was held that, with the exception of
certain categories of witnesses under the rubrics of either s 163 or 164, it is peremptory for all witnesses
in criminal trials to be examined under oath. The testimony of a witness who has not been placed under
oath properly has not made a proper affirmation or has not been properly admonished to speak the truth
as provided for in the Act, lacks the status and character of evidence and is inadmissible.

6.13.6 Affirmation in lieu of oath

Study: Section 163 of the CPA.

6.13.7 Unsworn or unaffirmed evidence

Study: Section 164 of the CPA.

For this section to be triggered, there must be a finding that the witness does not understand the nature
and import of the oath. The finding must be preceded by some form of enquiry by the judicial officer to
establish whether the witness understands the nature and import of the oath. If the judicial officer should
find after such an enquiry that the witness does not possess the required capacity to understand the nature
and import of the oath, he/ she should establish whether the witness can distinguish between truth and
lies and, if the enquiry yields a positive outcome, admonish the witness to speak the truth (Matshiva v S
2014 (1) SACR 29 (SCA)). The absence of an enquiry into whether a child witness understands the
meaning of telling the truth results in such evidence being inadmissible (see Mangoma v S [2013] ZASCA
205)). An inquiry is, however, not always necessary in order to make the finding required by s 164, and
the mere youthfulness of a witness may justify such a finding (S v B 2003 (1) SA 552 (SCA) and DPP
Kwazulu-Natal v Mekka (57/ 2002) [2003] ZASCA 17 (26 March 2003)).

6.13.8 Cross-examination
Study: Section 166(1) of the CPA provides for cross-examination.

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In President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA
1 (CC) the following statements were made regarding cross-examination:
The cross-examiner must put his defence on each and every aspect which he wishes to put in issue,
explicitly and unambiguously, to the witness implicating his client.

The court held further as follows:

The institution of cross-examination not only constitutes a right; it also imposes certain obligations.
As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth
on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination
showing that the imputation is intended to be made and to afford the witness an opportunity, while
still in the witness-box, of giving any explanation open to the witness and of defending his/ her
character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness
is entitled to assume that the unchallenged witness’s testimony is accepted as correct.

The court continued to state as follows:

The precise nature of the imputation should be made clear to the witness so that it can be met and
destroyed, particularly where the imputation relies upon inferences to be drawn from other evidence
in the proceedings. It should be made clear not only that the evidence is to be challenged but also
how it is to be challenged. This is so because the witness must be given an opportunity to deny the
challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and
to explain contradictions on which reliance is to be placed. and to explain contradictions on which
reliance is to be placed.
Cross-examination cannot be used to prove anything: it can only establish inconsistencies or weaknesses
in the case. It cannot establish evidence. Assertions or questions put by counsel during cross-examination
is not evidence (Mkhize v S (390/ 18) [2019] ZASCA 56 (1 April 2019)).

The judicial officer must explain to the unrepresented accused the right to cross-examination. In S v Mdali
2009 (1) SACR 259 (C), the court held that the failure on the part of the magistrate to adequately explain
to an unrepresented accused the right to cross-examination, how it should be conducted, its purpose and
scope and the consequences of a failure to cross-examine, breached the accused’s fundamental rights to
a fair trial (see S v Msimango 2010 (1) SACR 544 (GSJ)). In S v Sebatana 1983 (1) SA 809 (O) remarked
as follows regarding the court’s duty to assist an unrepresented accused during cross-examination:

Experience has repeatedly taught that, particularly in the case of illiterate and untutored … accused,
they may put a few irrelevant questions to a State witness or no questions at all, and then
subsequently give evidence which conflicts with that of the State witness in material respects. This
may be the result of ignorance about the true nature and purpose of cross-examination,
notwithstanding an explanation by the magistrate of the accused’s “rights” in that connection. The

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 presiding officer in such a case has a duty to assist the accused in presenting his defence by way of
cross-examination by, for example, expressly asking him whether he agrees with each material
allegation made against him by a State witness. In this way it should in most instances rapidly
become clear which evidence is disputed, and the presiding officer can himself put the necessary
question or contention to the State witness.

Cross-examination aims to elicit evidence favourable to the cross-examiner. This takes place in two ways:
through supplementing or attacking the evidence-in-chief of the witness. Cross-examination must always
be conducted with respect for the witness, and the decorum of the court must be maintained. The cross-
examiner may not mislead the witness by suggesting, for instance, that a certain witness testified as to a
specific fact if that witness never did such a thing.

6.13.9 The powers of the court to limit cross examination (s 163(3) CPA)
Study: Section 163(3) of the CPA.

6.13.10 Re-examination
Kruger A, Hiemstra’s Criminal Procedure (Commentary on s 160 CPA) remarks as follows on re-
examination:
After cross-examination has been concluded the side that called the witness is given an opportunity
to ask questions again. This is done according to the rules which apply to examination-in-chief.
Questions are limited to the field covered in cross-examination. New material may only be introduced
with the leave of the court and then usually subject to the other party’s right of cross-examination.
Re-examination is intended to correct uncertainties or wrong impressions which flowed from cross-
examination or to supplement something which did not come out fully, such as, for instance, a
statement of which only a portion was used in cross-examination. Re-examination is not limited to
questions broached for the first time in cross-examination.

6.13.11 Inquisitorial powers of the court

[Link] Court may examine witness or person in attendance

Study: Section 167 of the CPA.

[Link] Court may subpoena witness

Study: S 186 of the CPA.

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See in this regard DPP, Transvaal v Mtshweni [2007] 1 All SA 531 (SCA); S v Steyn 2018 (1) SACR
410 (KZP)). In considering whether or not to receive further evidence in terms of sections 167 or 186, the
court must adopt absolute impartiality and must ensure that strict neutrality is maintained in the way
questions are asked. The accused should be afforded an opportunity to call further evidence, should
potentially adverse evidence be produced in this manner. The court must ensure that motive for directing
further evidence is not partisan and that it is essential for a just decision of the case (S v Masooa 2016
(2) SACR 224 (GJ)). The court is entitled at any stage of proceedings to call witnesses, even if both parties
have concluded their arguments. There is no requirement that notice be given to parties of the court’s
intention to call a witness (S v Karolia 2006 (2) SACR 75 (SCA). Also see S v Ernest 2021 (1) SACR 324
(KZP)).

It was held by the SCA that a criminal trial was not a game where one side was entitled to claim the benefit
of any omission or mistake made by the other side, and a judge's position in a criminal trial was not merely
that of an umpire about to see that the rules were observed by both sides. A judge had to see that justice
was done. The power and discretion under sections 167 and 186 might be exercised by the presiding
officer, whether the effect of this was in favour of the state or the accused person, provided that it was
done for the purpose of doing justice (S v Gerbers 1997 (2) SACR 601 (SCA). In Gerbers, it was held at
608G-I that it is so

that the questioning of appellant by the trial Judge was lengthy, but appellant's answers were also
often lengthy and length alone is a relatively neutral factor in an enquiry such as this. What is more
important is the manner in which such questioning took place. It goes without saying that objectively
legitimate questions may be put so belligerently or intimidatingly or so repetitively or confusingly as
to amount to judicial harassment and therefore an irregularity. But that does not mean that a court
may not ask an accused questions which he may find it difficult to answer without doing damage to
his case. Nor is a perception of partiality justified merely because a court's questions have the result
that answers damaging to the accused emerge.

The term “essential to the just decision of the case” means that the court, upon an assessment of the
evidence before it, considers that, unless it hears a particular witness, is bound to conclude that justice
will not be done in the end. That does not mean that a conviction or acquittal (as the case may be) will
not follow, but rather that such conviction or acquittal, as would follow, would have been arrived at
without reliance on available evidence that would probably (not possibly) have affected the result,
whereas there is no explanation before the court that justifies the failure to call that witness (S v
Gabaathlowe 2003 (1) SACR 313 (SCA)).

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6.14 The right not to be compelled to give self-incriminating
evidence

The accused has the constitutional right not to be compelled to give self-incriminating evidence. The
accused is under no obligation to testify in his/ her criminal trial. The choice not to testify is, however, not
without consequences.

Osman v Attorney-General for the Transvaal 1998 (4) SA 1224 at para [22] states as follows:
Our legal system is an adversarial one. Once the prosecution has produced evidence sufficient to
establish a prima facie case, an accused who fails to produce evidence to rebut that case is at risk.
The failure to testify does not relieve the prosecution of its duty to prove guilt beyond reasonable
doubt. An accused, however, always runs the risk that, absent any rebuttal, the prosecution’s case
may be sufficient to prove the elements of the offence. The fact that an accused has to make such
an election is not a breach of the right to silence. If the right to silence were to be so interpreted, it
would destroy the fundamental nature of our adversarial system of criminal justice.

In S v Boesak 2001 (1) SA 912 (CC), it was held as follows at para [24]:

The fact that an accused person is under no obligation to testify does not mean that there are no
consequences attaching to a decision to remain silent during the trial. If there is evidence calling for
an answer, and an accused person chooses to remain silent in the face of such evidence, a court
may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to
prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of
the evidence.

6.15 The right to be tried in a language the accused understands

The heads of courts have issued a resolution that English should be regarded as the language of record
for all courts. This should not deny the litigant, witness or legal practitioner the right, where practicable, to
address the court in the language of his/ her choice. In instances where a language other than English is
used during court proceedings, it must be interpreted contemporaneously into English. Where
contemporaneous interpreting is not available, the court record or portions of the court record in a language
other than English must be translated into English.

This right to be tried in a language one understands was dealt with extensively by Davis J in Kruse v S
[2019] 4 All SA 287 (WCC). It is clear from the judgment that the right is closely linked to the right to be
present at the proceedings and the right to challenge evidence. The court held the following:

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 • Section 35(3)(k) of the Constitution entitles an accused person to have the entire proceedings
interpreted into a language that he/ she understands as opposed to the evidence only, while s
35(4) ensures that all information required to be given to the accused is imparted in a language
that he/ she understands.
• The right to be present when being tried implies an ability to hear and understand the import of
the evidence and the nature of the proceedings.
• The right to adduce and challenge evidence depends on the accused’s ability to hear and
understand the testimony of witnesses and to make himself/ herself properly understood when
instructing counsel and giving evidence.
• The ability of an accused person to understand and be understood are fundamental requirements
for a fair trial.
• The presiding officer must satisfy himself/ herself on proper grounds that the accused is able to
hear and understand the proceedings at all times and to make himself/ herself understood.
• The presiding officer should not simply accept the word of a legal representative in this regard,
for an accused’s legal representative may be operating under a misapprehension as to the
efficacy and accuracy of his/ her attempts to communicate with the accused. Nor should the
presiding officer be content with his/ her own assessment of the situation.
• Where there is any inkling that an accused may have hearing and/ or speech difficulties, an
expert assessment should be undertaken as to the extent of the accused’s impairment and,
depending on the results of that assessment, an appropriately qualified interpreter must be
employed to assist the deaf and/ or mute accused in order to ensure that he/ she is able to
participate fully in the trial.

The role of an interpreter is an important element of a fair trial. In the South African context, the task of
interpretation needs considerable skill and training. The use of words and the meaning attached to these
sometimes depend on the context in which they are used. Some African indigenous languages, may fall
within the same language family, and yet the same word may have totally different meanings in these. It
is crucial that the interpreter not only understand the language, but is also so conversant with the language
of the witness that he/ she is able to convey to the court, and for the record, the meaning and the context
as if it was conveyed by the witness (S v Manzini (A1947/ 04) [2006] ZAGPHC 110 (25 October 2006)).
Section 6(2) of the Magistrates’ Court Act places a duty on the presiding officer to call a competent
interpreter to translate evidence into a language that is understood by the accused. The Magistrates'
Courts Rules provide for an oath or affirmation to be taken by an interpreter upon entrance into office, in
addition to the oath for ad hoc or casual interpreters. The presiding officer's enquiry into the interpreter's
competence and swearing in should be formally recorded. Unlike officially appointed interpreters, casual
or ad hoc interpreters need to be sworn in on each occasion in which they perform interpreting work (S v
Saidi 2007 (2) SACR 637 (C)). If the interpreter is not properly sworn in, the evidence is inadmissible

85
(Sayed v Levitt NO 2012 (2) SACR 294 (KZP); S v Ndala 1996 (2) SACR 218 (C)). The interpreter must
be competent (Sehlabaka v S (A67/ 2010) [2011] ZAFSHC 134 (25 August 2).

86