Unit 1: A basic introduction to criminal procedure

In most legal systems legal proceedings are divided into criminal and civil proceedings. Both
proceedings have a different set of functions, procedures and consequences.

Criminal Law is part of what is called substantive law. Criminal Law forms a body of legal rules
which determine which human conduct constitutes a crime. This entails the act in question, the
mental state of the alleged perpetrator, as well as the attendant consequences or
circumstances.

Criminal procedure is designed to address and protect public rights. Civil procedure, on the
other hand, is concerned with the vindication of private rights.

Criminal Procedure determines the legal steps which must be followed after the commission of
an offence: the law of criminal procedure is the formal part of criminal law (Z Hautzinger Bases
of Criminal Procedure 139 Studia Iuridica Auctoritate Universitatis Pecs Publicata.

Criminal procedures cover the procedure from the initial arrest of the suspect, the initial
investigation of the alleged crime, through to the trial and eventual punishment, if the accused
is subsequently convicted.

The law of criminal procedure must be viewed against Langa’s CJ1 view that
“… there is much to be said for sticking to the rules when they are clear and good”. It is
when adherence to the word is taken too far that formalism becomes dangerous
considering that the upholding of a law obscures or ignores that law exists to try,
however difficult, to ensure that justice is done.

It is this type of conservative or formalist approach to law that is inconsistent with a

transformative Constitution. At the heart of a transformative Constitution is a commitment to
substantive reasoning, to examining the underlying principles that inform laws themselves and
judicial reaction to those laws.

The scope and content of criminal procedure

Criminal procedure regulates the powers and duties of the criminal courts and all other ancillary
functions which operate within the context of the criminal justice system such as the
prosecution, the duties and powers of the police, the rights of suspects and arrested and
accused persons, pre-trial procedures such as bail, charge sheets and indictments, pleadings,
the course of the criminal trial, verdict, sentencing, post-trial remedies, and executive action,
are part of criminal procedure.

The law of criminal procedure has three basic functions:

a) Enforce material law – as the formal part of material law, criminal procedure essentially
assists and enforces the adjudication of actions which are identified as crimes by the
common-law of statutory law;
b) Ensure legality in the procedure – the establishment of guilt, innocence or eventual
punishment may only be done within the prescripts of criminal procedure;

1
Langa Pius “Transformative Constitutionalism” Stellenbosch Law Review 351 2006 at 357.
c) Ensure justice – the law makers are invariably obligated to establish a fair and thorough legal
process which, as far as possible determines facts without fear or favour. Criminal
responsibility must be determined after a due and balanced consideration of all the
incriminating and exculpatory factors.

Every person who stands accused of an offence before any competent court must be assumed
innocent, unless and until evidence is presented which proves otherwise.

It is the duty of the prosecution to establish every element of the offence:

a) the act (conduct);
b) whether the act complies with the definition of the crime in question;
c) whether the conduct of the accused is, indeed, unlawful;
d) culpability (whether intention or negligence).

In criminal proceedings, the prosecution is required to discharge its onus beyond any reasonable
doubt.

In the inquisitorial system (e.g., France) the judge is the master of the proceedings (dominus
litis) in the sense that he or she actively conducts, and even controls the search for the truth by
dominating the questioning of witnesses and the accused.

In accusatorial systems (the Anglo-American systems), the judge is in the role of detached
umpire, who should not enter the arena of the fight between the prosecution and the defence
for fear of his becoming partial or losing perspective as a result of all the dust caused by the
fray.

The police are the primary investigative force; they pass the collected evidence on to the
prosecution in dossier (file) format, who then becomes dominus litis; the prosecution decides on
the appropriate charges, the appropriate court, and so on. In court, the trial takes the form of a
contest between two theoretically equal parties (the prosecution and the defence) who do the
questioning, in turn leading their own witnesses and cross-examining the opposition’s
witnesses.

A summary trial is a trial which can be tried and disposed of speedily because its facts are
neither contentious nor complicated. The object of summary trial is to have a record which
is sufficient for the purpose of justice, and yet, not so long as to impede a speedy disposal of
the case: a summary trial is “summary” only in respect of the record of its proceedings and
not in respect of the proceedings themselves, which should be complete and carefully
conducted, as in any other criminal case.
Unit 2: Securing the attendance of the accused at the criminal trial
There are various means by which an accused’s attendance at the trial may be secured. The
most important are a summons, a written notice to appear, an indictment, or the arrest of
the accused – s 38 of the Criminal Procedure Act.

Summons
A summons is used for a summary trial in a lower court where the accused is not in custody
or about to be arrested but an accused may be arrested even after a summons to appear on
a certain date has been served on him especially when it becomes clear that he will attempt
to defeat the ends of justice.

To secure the attendance of an accused at a summary trial in a lower court by means of a

summons:
1) The prosecutor draws up the charge and hands it, together with information relating to
the name, address and occupation or status of the accused, to the clerk of the court – s
54(1);
2) The clerk issues a document known as a “summons” containing the charge and the
information handed to him by the prosecutor specifying the place, date and time for the
appearance of the accused in court – s 54(1);
3) The clerk of the court hands the summons together with so many copies thereof as
there are accused to a person empowered to serve a summons – s 329;
4) The summons is served by delivering it at his residence or place of employment or
business to a person apparently over the age of 16 years and apparently residing or
employed there – s 54(2)(a). A summons is in force throughout the Republic and may be
served anywhere in the Republic – s 328 and it may even be transmitted by telegraph – s
330. Service must take place at least 14 days (Sundays + public holidays excluded) before
the date fixed for the trial – s 54(3).

Written notice to appear

If a peace officer on reasonable grounds believes that a magistrates’ court, on convicting an
accused of an offence, whether the accused is in custody or not, will not impose a fine
exceeding the amount determined by the Minister from time to time by notice in the
Government Gazette (currently R2 500), he may hand to the accused a written notice –
1) Specifying the name, residential address and occupation or status of the accused;
2) Calling upon the accused to appear at a place and on a date and at a time
specified in the written notice to answer to a charge of having committed the
offence in question;
3) Containing an endorsement in terms of s 57 that the accused may admit his guilt
in respect of the offence and that he may pay a stipulated fine without appearing
in court; and
4) Containing a certificate signed by the peace officer that he has handed the
original notice to the accused and explained the import thereof to him – s 56(1).

Indictment
For trials in a superior court the charge is contained in a document known as an indictment,
which is drawn up in the name of the director of public prosecutions and contains the
charge against the accused, his name, address, gender, nationality and age and is
accompanied by a summary of the substantial facts of the case and a list of the names and
addresses of state witnesses – s 144(1), (2) and (3).

The indictment, together with a notice of trial, must be served on the accused at least 10
days (Sundays and public holidays excluded) before the date of the trial, unless the accused
agrees to a shorter period.

It is served by handing it to the accused in substantially the same manner as a summons –

see s 144(4)(a) – or it is handed to the accused by the magistrate or regional magistrate who
commits him to the superior court for trial. A return of service is prima facie proof of the
service – s 144(4)(b).

Arrest
Arrest constitutes one of the most drastic infringements of the rights of an individual. The
Criminal Procedure Act lays down strict rules concerning when a person may be arrested. In
terms of the Criminal Procedure Act an arrest should preferably be affected only after a
warrant of arrest has been obtained.

It is only in exceptional circumstances that private individuals, or even the police, are
authorised to arrest anyone without the authority of a warrant. Any arrest without a
warrant which is not specifically authorised by law, will be unlawful. Even a police official
who executes a warrant for the arrest of a person must exercise proper care in doing so.

The law lays down very strict requirements that must be complied with before force may be
used in order to affect an arrest. As a general rule, force may not be used in order to affect
an arrest.

The need to use force can therefore only arise in those circumstances in which the use of
force is necessary to overcome resistance to the arrest or to prevent the suspect from
fleeing.

In terms of s 49 of the CPA, …the arrestor may, in order to effect the arrest, use such force as
may be reasonably necessary and proportional in the circumstances to overcome the
resistance or to prevent the suspect from fleeing…

…the force must be reasonably necessary and proportional in the circumstances… and the
arrestor may use deadly force only if –
a) the suspect poses a threat of serious violence to the arrestor or any other person; or
b) the suspect is suspected on reasonable grounds of having committed a crime involving
the infliction or threatened infliction of serious bodily harm and there are no other
reasonable means of effecting the arrest, whether at that time or later.

Powers of private persons to arrest are regulated by s 42 of the CPA, which states that
private persons may arrest any person:
1) who commits or attempts to commit in his presence or whom he reasonably suspects of
having committed a First Schedule offence (the private person may pursue that person
 and any other private person to whom the purpose of the pursuit has been made
known, may join and assist therein – s 42(2);
2) whom he reasonably believes to have committed any offence and to be escaping from
and to be hotly pursued by a person whom such private person reasonably believes to
have authority to arrest that person for the offence;
3) whom he is by any law authorized to arrest without warrant in respect of any offence
specified in that law. In terms of s 9(1) of the Stock Theft Act 57 of 1959 a private person
may, for instance, arrest another without a warrant where there is a reasonable
suspicion that the latter has committed any one of certain offences created by the Act;
4) whom he sees engaged in an affray; (the aforementioned grounds of arrest are
authorized by s 42(1);
5) who owns, lawfully occupies or is in charge of property on or in respect of which any
person is found committing any offence, and any person authorized thereto by such
owner, may without a warrant arrest the person so found – s 42(3).
Unit 3: Interrogation, interception and establishing the bodily
features of a person
When investigating a crime, the police depend on information supplied by members of the
public. The police normally question persons they believe may possess information about the
commission of a crime including persons who observed the commission of the crime, gained
information about the commission of the crime by other means or were personally involved in
the commission of the crime.

People are not always willing to divulge information to the police, especially if they have been
involved in the commission of a crime. People to whom it is important that the police fail to
identify the perpetrator of a crime or to secure evidence that could lead to a conviction do
sometimes take steps to prevent the police from questioning people who could supply them
with valuable information.

To assist the police in crime investigations and to protect them against actions that may arise if
cooperation is not given willingly, the police have been invested with legal powers to enter
premises if necessary by forcible means to take statements. The police are indemnified against
actions only if they have acted within their powers.

Suspects have a constitutional right to remain silent and cannot be forced to incriminate
themself.

Powers are also delegated to the prosecuting authority to enable it to summon people to
appear before a judge, magistrate or regional magistrate in order to answer questions about the
commission of a crime. Such a summons can be used in terms of section 205 to bring a person
before a court.

Special powers are also delegated to the prosecuting authority by virtue of section 185 to place
a witness in custody if in the opinion of the DPP she would probably testify on behalf of the
state but is afraid to do so because her life is in danger or is likely to flee without giving
evidence.

Legislation also makes provision for third parties to intercept private communications between
persons by post or telephone where serious offences are concerned but a mandate from a judge
is required. In Kidson 1999 (1) SACR 338 (WLD), Cameron R warns of the need to guard against
an ‘’inappropriately extravagant notion of privacy’’ that takes the form of protecting the right to
privacy in cases that do not deserve such protection.

E.g., the right to privacy is not violated if private conversations of persons between whom there
is no particular tie of confidentiality are intercepted by means of a tape recorder, e.g. telephone
conversations of an accused with an accomplice or suspect but the court recognises a privacy
interest in conversations between marriage partners, life partners, pastoral confidants or
persons in contractual relations.

Powers have also been delegated to the police to ascertain certain bodily characteristics of
persons who are under reasonable suspicion of being involved in the commission of certain
crimes and the police may thus obtain blood samples, fingerprints, footprints and palm prints.
Unit 4: Search and seizure
The law prescribes strict rules that have to be observed when a person’s right to property and
right to privacy are threatened by searches and seizures that take place without his consent.

A search carried out without a person’s consent and without a warrant in circumstances where
the person who conducts the search does not have the statutory authority to do so would be
unlawful and could lead to the institution of a civil claim for damages against him and might
even imply that he is guilty of an offence.

Most rules concerning search and seizure are contained in the Criminal Procedure Act and
various other laws.

Which articles may be seized during search and seizure?

The Criminal Procedure Act prescribes a list of articles which may be seized during a search and
not all articles which are connected to illegality may necessarily be seized. The law provides
additional protections to the person whose property is under investigation. The safeguards
are intended to further promote the fairness and integrity of the justice process.

The CPA confers powers to search only where the object of the search is to find a certain person
or to seize an article which falls into one of three classes of articles, including documents, which
may be seized by the state in terms of the provisions of the CPA. These are:
1) articles which are concerned in or are on reasonable grounds believed to be concerned
in the commission or suspected commission of an offence s 20(a);
2) articles which may afford evidence of the commission or suspected commission of an
offence s 20(b); or
3) articles which are intended to be used or are on reasonable grounds believed to be
intended to be used in the commission of an offence s 20(c).

Under normal circumstances an article or document falling into one of the above-mentioned
categories may be seized by the state with the only exception of documents which are
privileged and in respect of which the holder of the privilege has not yet relinquished his or her
privilege such as communication between an attorney and his or her client. In Prinsloo v
Newman 1975 (1) SA 481 (A) at 493F-G and SASOL 111 (Edms) Bpk v Minister van Wet en Orde
1991 (3) SA 766 (T) it was accordingly held that such a document may not be seized.

What are the contents and operational functions of a search with a warrant?
The general rule is that a search should only be conducted on the strength of a search warrant.
While justices of the peace including police officers from the rank of captain upwards (but not
constables, sergeants or inspectors) are competent to authorise search warrants, it is preferable
that such officers only grant authorisation in the absence of a presiding officer and under
circumstances where the search and seizure have to be done quickly.

Search warrants must clearly describe the objects to be seized. In Thint and Another v The
National Director of Public Prosecutions 2008 (2) SACR 421 (CC), the court reiterated the long-
established principle that the person applying for the warrant must disclose all the material
facts to the judicial officer to whom the application is made.

Contents and operational functions of a search without a warrant?

Searching without a warrant may only take place in narrowly circumscribed circumstances with
the person’s consent or where the police officer reasonably concludes that a search warrant will
be issued on request and that the purpose of the search would be defeated if a warrant had to
be issued beforehand.

The Criminal Procedure Act (s 30–36) regulates the disposal and forfeiture of seized articles. An
article which is seized by a police official in terms of s 20 must be dealt with according to the
provisions of the Criminal Procedure Act. Such an article is normally kept in police custody and,
if required for criminal proceedings, handed to the clerk of the magistrates’ court or registrar of
the High Court for safe custody.

S 35(5) of the Constitution states that evidence obtained in a manner that violates any right in
the Bill of Rights must be excluded if the admission of such evidence would render the trial
unfair, or otherwise be detrimental to the administration of justice.

S 28(1) of the Criminal Procedure Act states that a police official commits an offence and is liable
on conviction to a fine or to imprisonment for a period not exceeding six months:
a) When he acts contrary to the authority of a search warrant issued under s 21 or a warrant
issued under s 25(1); or
b) When he, without being authorized thereto,
i) Searches any person or container or premises or seizes or detains any article; or
ii) Performs any act contemplated in s 25(1).

Section 28(2) affords the person who is aggrieved by an unlawful search or seizure the right to
claim compensation in respect of the damage suffered. Such compensation may be claimed at
the instance of the wronged party or on application by the prosecutor acting on the instructions
of such person.

S 28(2) applies even to a police official who is held criminally liable in terms of s 28(1), who
becomes subject to the order for compensation, in addition to whichever sentence he may
receive from the court.

The courts determine whether police conduct constitutes a violation of a complainant's

right to privacy or any other right by applying two tests:
1) the courts must determine the scope of the right to privacy and consider whether
the police conduct breached the complainant's right to privacy; if not, that would be
the end of the matter but if the police conduct did breach the complainant's right to
privacy, the courts would continue with the second test;
2) the second test determines whether the police conduct is justified because they
acted in terms of the provisions of the CPA. The second test is referred to as the
limitations analysis under s 36 of the Constitution. If the police conduct cannot be
justified in terms of s 36 because the police officer exceeded the powers granted to
him or her by the CPA, the complainant would have succeeded in establishing that
his or her right to privacy has been violated.

Section 48 of the CPA authorises a peace officer or private person who is authorised by law to
arrest another in respect of any offence to enter premises by force in order to effect an arrest.
The requirements which have to be satisfied by the arrestor are that:
1) The arrestor must know or reasonably suspect such other person is on the premises;
2) The arrestor must first audibly demand entry into such premises and state the purpose for
which he seeks entry and fails to gain entry, before using force to enter the premises.
Unit 5: Bail and other forms of release
The effect of bail
When bail is granted, an accused who is in custody is released from custody upon payment
of, or furnishing a guarantee to pay, the sum of money determined for her bail s 58. The
accused must then appear at the place and on the date and at the time appointed for his or
her trial, or to which the proceedings relating to the offence in respect of which the accused
is released on bail are adjourned (s 58).

Unless terminated sooner under certain circumstances, the accused's bail lasts until a
verdict is given by a court, or, where sentence is not imposed immediately after conviction
and the court in question extends bail, until sentencing (s58).

But s58 contains a proviso that where a court convicts an accused of an offence
contemplated in Schedule 5 or 6, the court shall, in considering whether the accused's bail
should be extended pending imposition of sentence, apply the provisions of s60(11)(a) or
s60(11)(b) and the court shall take into account:
a) the fact that the accused has been convicted of a Schedule 5 or 6 offence and
b) the likely sentence which the court might impose.

An accused's failure to appear in court or to comply with any of the other conditions of his
or her bail may result in cancellation of bail, forfeiture of bail money to the state and the
rearrest. Failure to comply with a specific condition of bail is also a criminal offence
punishable by a fine or imprisonment not exceeding one year (s67A).

The right to bail

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 s35(1)(f) of
the Constitution.

In Dlamini; Dladla and Others; Joubert; Schietekat 1999 (2) SACR 51 (CC), the following
observation was made in [6] of the judgment:
Section 35(1)(f) postulates a judicial evaluation of different factors that make up the
criterion of interests of justice, and the basic objective traditionally ascribed to the
institution of bail, namely to maximise personal liberty, fits snugly into the normative
system of the Bill of Rights.

In the absence of a conviction by a court of law, an accused is, also constitutionally

presumed to be innocent. There is an area of tension between this presumption and
deprivation of liberty pending the verdict of a court of law. Bail is a method of securing a
compromise.

In Acheson 1991 (2) SA 805 (Nm) at 822A—B Mahomed J said:

An accused cannot be kept in detention pending his trial as a form of anticipatory
punishment. The presumption of the law is that he is innocent until his guilt has
been established in Court. The Court will therefore ordinarily grant bail to an accused
person unless this is likely to prejudice the ends of justice.
The purpose of bail is to strike a balance between the interests of society (the accused
should stand his or her trial and there should be no interference with the administration of
justice) and the liberty of an accused who, pending the outcome of his or her trial, is
presumed to be innocent). Du Toit et al 9—1; Mokoena A Guide to Bail Applications 2 ed
(2018) at 1 and S v C 1998 (2) SACR 721 (C), where Conradie J referred to the relevance of
s12(1)(a) of the Constitution, which provides:
Everyone has the right to freedom and security of the person, which includes the right not to
be deprived of freedom arbitrarily or without just cause.

Refusal to grant bail shall be in the interests of justice where one or more of the grounds
referred to in s 60(4)(a) (d) are established.

The whole issue turns on what is in the best interests of justice. Obviously, it is not in the
best interests of justice to grant bail to an accused who will not stand his or her trial or who
might otherwise abuse his or her liberty pending the verdict, e.g., by intimidating State
witnesses.

It must be appreciated that it is also not in the best interests of justice to refuse bail to an
accused who will stand his or her trial and who will not otherwise interfere with the
administration of justice.

In Dlamini, the Court said:

Bail serves not only the liberty interest of the accused, but the public interest by
reducing the high number of awaiting-trial prisoners clogging our already
overcrowded correctional system and by reducing the number of families deprived
of a breadwinner.

In further development and interpretation of rules and principles governing bail, all courts
are obliged to take full account of the provisions of s 39(2) of the Constitution: that a court
must promote the spirit, purport and objects of the Constitution. Letaoana 1997 (11) BCLR
1581 (W) 1591E and Porthen 2004 (2) SACR 242 (C) [17].

All rights contained in the Bill of Rights must be considered. Where a bail applicant is the
primary caregiver of a child, the constitutionally protected best interests of the child (s28 of
the Constitution) must be considered in the context of all the other circumstances.

In Petersen 2008 (2) SACR 355 (C), one of the grounds for refusing bail in the case of a
mother of a young child was the fact that appropriate alternative care, as envisaged by
s28(1)(b) of the Constitution, was available.

In Carmichele v Minister on Safety and Security 2001 (4) SA 938 (CC) at [74] attention was
drawn to the constitutional responsibilities of the prosecutor in a bail application.

Bail and some fundamental principles of criminal justice

Bail applications and bail appeals should be treated and heard as matters of urgency.
Twayie v Minister van Justisie 1986 (2) SA 101 (O) and Banger 2016 (1) SACR 115 (SCA) at
[14].
Bail is non-penal in character Acheson 1991 (2) SA 805 (Nm). See also generally Stanfield
1997 (1) SACR 221 (C) 2338 i; C 1998 (2) SACR 721 (C) and Van der Berg Bail—A
Practitioner's Guide 3 ed (2012) 12.

Neither the amount determined for bail nor the refusal of bail may therefore be influenced
by punitive notions, to punish the alleged offender or to deter other possible offenders
(Visser 1975 (2) SA 342 (C). In terms of s60(5)(f) the court may, however, consider
the prevalence of a particular type of offence.

The fact that bail is non-penal does not mean that an accused's prior unlawful conduct
pending trial must be ignored. Rudolph 2010 (1) SACR 262 (SCA) 2678c-e.

It is undesirable that an accused person should be deprived of pre-trial liberty if the

sentence likely to be imposed will be in the form of a fine or one other than imprisonment
Moeti 1991 (1) SACR 462 (B) at 463H.

Each case must be considered on its merits. The prosecutor must make an independent
assessment of the case and ought not to blindly follow the police's recommendation that
bail should be refused (Hlopane 1990 (1) SA 239 (O) at 242).

The court, too, should not act as a mere 'rubber stamp' in confirming the view point of the
police and prosecution (Visser 1975 (2) SA 342 (C)).

Release on bail is not a substitute for an accused's right to be brought to trial within a
reasonable period (Du Toit et al 9—3).

Delays caused by prosecutorial decisions are in the absence of male fides not in themselves
good reasons for a conclusion that bail must be granted (Ali 2011 (1) SACR 34 (ECP)).

The issue concerning release or refusal of bail should not be used as an inducement to
obtain a statement from an accused (Joone 1973 (1) SA 841 (C) at 846H).

A court must inform an unrepresented accused of his or her right to apply for
bail, as well as the nature of the procedure to be followed (Ngwenya 1991 (2)
SACR 520 (T); Steytler 1982 SACC 3-17).

Release of child on bail: the provisions of s 25 of the Child Justice Act 75 of 2008
Section 25(1) of Act 75 of 2008 provides that Chapter 9 of Act 51 of 1977 (the bail chapter)
applies to an application for the release of a child on bail, except for ss 59 and 59A, to the
extent set out in s 21(2)(b) of Act 75 of 2008.

Section 25(2) of Act 75 of 2008 provides as follows:

An application for the release of a child, referred to in section 21(3)(c), on bail, must be
considered in the following three stages:
a) Whether the interests of justice permit the release of the child on bail; and
 b) if so, a separate inquire must be held into the ability of the child and his or her
parent, an appropriate adult or guardian to pay the amount of money being
considered or any other appropriate amount; and
c) if after an inquiry referred to in paragraph (b), it is found that the child and his or her
parent, an appropriate adult or guardian are –
i. unable to pay any amount of money, the presiding officer must set
appropriate conditions that do not include an amount of money for the
release of the child on bail; or
ii. able to pay an amount of money, the presiding officer must set conditions
for the release of the child on bail and an amount which is appropriate in the
circumstances.

Bail granted by police before first court appearance of an accused

The question whether bail should be granted or not is a judicial one: one that must in
principle be determined by a court of law (Ramgobin 1985 (4) SA 130 (N) but bail may in
certain limited circumstances be granted by the police (s59) which bail is referred to as
'police bail'.

The purpose of police bail is not to oust a judicial decision but to ensure that pre-trial
release on bail can in respect of relatively trivial offences be secured as soon as possible:
even before the first appearance in a lower court. If police bail cannot be granted in terms
of s59 or if it can be granted but is denied, an accused has every right to apply to a lower
court for bail at their first compulsory appearance as required in terms of s50.

Bail granted by the prosecution pending an accused's first appearance in court is also
possible.

Procedure concerning police bail

An accused who is in custody in respect of any offence, other than an offence referred to in
Part II or Part III of Schedule 2, may be released on bail in respect of such offence by any
police official of or above the rank of non-commissioned officer, if the accused deposits at
the police station the sum of money determined by such police official—s59(1)(a).

The police official who has the power to determine police bail is statutorily required to
consult with the police official charged with the investigation: the so-called 'investigating
officer'—s59(a).

At the time of releasing the accused on bail, the police official concerned must complete and
hand to the accused a recognisance on which a receipt shall be given for the sum of money
deposited as bail and on which the offence and the place, date and time of the trial are
entered—s59(1)(b).

The police official must forthwith forward a duplicate original of such recognisance to the
clerk of the court which has jurisdiction s 59(1)(c). The police must grant an accused a
reasonable opportunity to communicate with their legal representative, family or friends to
obtain the amount fixed as police bail.
Police bail: the limitations
Only cash payments can be received in payment of police bail. Sureties cannot be accepted.
Release on police bail can only take place before an accused's first appearance in a lower
court—s59(1)(a); Mokoena A Guide to Bail Applications 2 ed (2018) at 21. This limitation is
essential in order to ensure that courts remain in direct and exclusive control over release
on bail once the case is on the roll.

Discretionary special conditions (conditions other than the essential bail conditions
concerning appearance in court on a specific time, date and place), as provided for in s62,
cannot be added by the police when releasing an accused on police bail but, a court may,
upon a prosecutor's application, add special conditions to police bail—s59(2) as read with
s62.

Police bail remains in force after the first appearance in court in the same manner as bail
granted by a court—s59(2).

Police bail is not possible in respect of offences referred to in Part II or Part III of Schedule 2
of Act 51 of 1977. Parts II and III include virtually all serious common-law crimes, e.g.,
treason, sedition, murder, rape, arson, kidnapping, robbery, theft, fraud and assault (when a
dangerous wound has been inflicted).

Part II also refers to certain serious statutory offences, e.g., drug offences and offences
relating to coinage.

Police bail may not be granted in respect of 'essential infrastructure-related offences'—s2 as

read with s3 of the Criminal Matters Amendment Act 18 of 2015.

The discretion
It has been held that, since in principle a theoretically innocent person should not be
deprived of their liberty, an application for police bail should, like an ordinary bail
application, neither be frustrated by an excessive amount nor be refused in the absence of
substantial cause for such refusal—MacDonald v Kumalo 1927 EDL 293.

It has been suggested that an action for damages will lie should police bail be refused on
malicious grounds, or where the properly authorised official had simply refused to exercise
his or her discretion Shaw v Collins (1883) 2 SC 389.

In EF v Minister for Safety and Security 2018 (2) SACR 123 (SCA) one of the reasons for
awarding damages was the failure of the police to secure a situation where police bail which
was lawfully recommended by a police official of the required standing, could be paid by the
spouse of the detained person.

Bail granted by the prosecution

The provisions of s59A
A director of public prosecutions (DPP), or a prosecutor authorised thereto in writing by the
DPP concerned, may, in respect of the offences referred to in Schedule 7 and in consultation
with the police investigating officer, authorise the release of an accused on bail—s59A(1).
This kind of bail is hereafter referred to as 'prosecutorial bail'. Section 59A(3) provides that
the effect of prosecutorial bail is that the person who is in custody shall be released from
custody:
a) upon payment of, or the furnishing of a guarantee to pay, the sum of money
determined for his or her bail at his or her place of detention contemplated in
section 50(1)(a);
b) subject to reasonable conditions imposed by the director of public prosecutions or
prosecutor concerned;
c) or the payment of such sum of money or the furnishing of such guarantee to pay and
the imposition of such conditions.

For purposes of exercising the functions as contemplated in s59A(1) and 59A(3), a DPP may
after consultation with the Minister of Justice, issue directives (Mokoena A Guide to Bail
Applications 2 ed (2018) 25).

Prosecutorial bail may not be granted in respect of 'essential infrastructure related

offences'—s2 as read with s 3 of the Criminal Matters Amendment Act 18 of 2015.

An accused who is released on prosecutorial bail must appear on the first court day at the
court and at the time determined by the prosecution; and the release of the accused shall
endure until he or she appears before the court on the first day—s59A(4).

Prosecutorial bail proceedings must be recorded in full, including the conditions imposed—
s59A(6) as read with s64. In terms of s 59A(7) prosecutorial bail shall be regarded as bail
granted by a court in terms of s 60 but prosecutorial bail only lasts until the accused's
appearance on the first court day. At this first court appearance judicial intervention or
approval is required.

Section 59A(5) provides that at the first appearance in court of a person released on
prosecutorial bail, the court-
a) may extend the bail on the same conditions or amend such conditions or add further
conditions as contemplated in section 62; or
b) shall, if the court does not deem it appropriate to exercise the powers contemplated in
paragraph (a), consider the bail application and, in considering such application, the
court has the jurisdiction relating to the powers, functions and duties in respect of bail
proceedings in terms of section 60.

Section 59A and the provisions of the Child Justice Act 75 of 2008
A prosecutor may, prior to a child's first appearance at a preliminary inquiry, authorise the
release of a child in terms of s25 of the Child Justice Act as read with s59A of the Criminal
Procedure Act. See s21(2) of Act 75 of 2008.

But such a release on bail can only be authorised in respect of offences referred to in
Schedule 1 or 2 of Act 75 of 2008, and the reference to Schedule 7 in s59A(2) of the Criminal
Procedure Act must be regarded as a reference to Schedule 2 of Act 75 of 2008. Preference
must be given to releasing the child—s21(1) of Act 75 of 2008.
Bail applications in court
An accused who is in custody in respect of an offence shall, subject to the provisions of
s50(6), be entitled to be released on bail at any stage preceding his or her conviction in
respect of such offence, unless the court finds that it is in the interests of justice that he or
she be detained in custody s 60(1)(a).

If a court refers an accused to another court for trial or sentencing, the court referring the
accused retains jurisdiction relating to the powers, functions and duties in respect of bail
until the accused appears in such other court for the first-time s—60(1)(b).

The provisions of s 50(6)

The procedure which follows an arrest is governed by s50 and certain important provisions
which relate to bail are contained in s50(6).

An accused is at their first appearance in court entitled to apply for release on bail—s50(6)
(a)(i)(bb). They are not entitled to bring a bail application outside ordinary court hours—
s50(6)(b).

The bail application of a person charged with a Schedule 6 offence must be considered by a
magistrate's court—s50(6)(c) but in terms of a proviso in s50(6)(c), a DPP or prosecutor
authorised thereto by the DPP may where he or she deems it expedient or necessary for the
administration of justice in a particular case—direct in writing that the application must be
considered by the regional court.

Any lower court before which a person is brought in terms of s50(6) may in terms of s50(6)
(d) postpone any bail proceedings or bail application to any date or court, for a period not
exceeding seven days at a time, on the terms which the court may deem proper and which
are not inconsistent with any provision of the Act, if-
i) the court is of the opinion that it has insufficient information or evidence at its
disposal to reach a decision on the bail application;
ii) the prosecutor informs the court that the matter has been or is going to be
referred to a director of public prosecutions for the issuing of a written
confirmation referred to in section 60(11A);
iii) [Sub-para (iii) deleted by s 8 (l)(c) of Act 62 of 2000.];
iv) it appears to the court that it is necessary to provide the State with a reasonable
opportunity to-
1) procure material evidence that may be lost if bail is granted; or
2) perform the functions referred to in section 37; or
v) it appears to the court that it is necessary in the interests of justice to do so.

The requirement 'interests of justice' in s50(6)(d)(v) does not mean that there must be
exceptional circumstances (Block 2011 (1) SACR 622 (NCK)).

Section 50(6)(d) applies to a child whose bail application has not been finalised (also refer to
s66(3) of the Child Justice Act 75 of 2008).
Appeal by accused to High Court against a lower court's decision concerning bail
An accused who considers himself or herself aggrieved by the refusal of a lower court to
admit him or her to bail or by the imposition by such court of a condition of bail, including a
condition relating to the amount of bail money and including an amendment or
supplementation of a condition of bail, may appeal against such refusal or the imposition of
such condition to the High Court having jurisdiction or to any judge of that court if the court
is not then sitting—s65(1)(a).

The appeal may be heard by a single judge—s65(1)(b). A local division of the High Court shall
have jurisdiction to hear an appeal in terms of s65(1)(a) if the area of jurisdiction of the
lower court in question or any part thereof falls within the area of jurisdiction of such local
division—s65(1)(c).

The accused must serve a copy of the notice of appeal on the director of public prosecutions
and on the magistrate or the regional magistrate, as the case may be (see Sherer v Director
of Public Prosecutions, Transvaal [2004] 2 All SA 88 (T) at [25].

The notice of appeal must set out the specific grounds upon which the appeal is lodged—Ho
1979 (3) SA 734 (W) at 738B—C. The magistrate or regional magistrate concerned must
forthwith furnish the reasons for his or her decision to the court or judge, as the case may
be—s65(3).

The mere fact that a court gave brief reasons for dismissing a bail application is not in itself a
sufficient ground for the court of appeal to infer that insufficient weight was given to the
considerations set out in s 60 (Ali 2011 (1) SACR 34 (ECP) at [15]: in this case the reasons
were 'scant, but clear' (at [10])).

An appeal shall not lie in respect of new facts which arise or are discovered after the
decision against which the appeal is brought, unless such new facts are first placed before
the magistrate or regional magistrate against whose decision the appeal is brought and such
magistrate or regional magistrate gives a decision against the accused on such new facts—
s65(2) (Yanta 2000 (1) SACR 237 (TkH)).

The court or judge hearing the appeal shall not set aside the decision against which the
appeal is brought unless such court or judge is satisfied that the decision was wrong, in
which event the court or judge shall give the decision which in its opinion the lower court
should have given—s65(4); Barber 1979 (4) SA 218; De Abreu 1980 (4) SA 94 (W) at 96H-
97A; Nel 2018 (1) SACR 576 (GJ) at [3].

In Porthen 2004 (2) SACR 242 (C) at [17] it was said, with reference to s39(2) of the
Constitution, that s65(4) of the Act 'should be construed in a manner which does not unduly
restrict the ambit of an appeal court's competence to decide that the lower court's decision
to refuse bail was "wrong'".

A court of appeal may consider the issue of bail afresh if the bail court had misdirected itself
materially on the facts or legal principles governing bail—Essop 2018 (1) SACR 99 (GP) at
[34] [35].
A further appeal against an order of the High Court sustaining a magistrate's refusal of bail is
possible—Mohamed 1977 (2) SA 531 (A) but this may be done only with leave of the High
Court concerned and, if such leave is refused, with the leave of the Supreme Court of
Appeal. The automatic right of appeal to the Supreme Court of Appeal against refusal of bail
by a High Court sitting as a court of first instance has been abolished by ss16 and 17 of the
Superior Courts Act 10 of 2013; Banger 2016 (1) SACR 115 (SCA).

The accused still has a right to appeal to the Supreme Court of Appeal but is required to do
so with leave of the High Court; and if such leave is refused, the leave of the Supreme Court
of Appeal itself is required before this court can entertain the appeal.

Bail appeals are prima facie urgent (Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1)
SACR 127 (O)). But the urgency of a bail appeal does not entitle a party to ignore the
procedures prescribed by s65 (Sherer v Director on Public Prosecutions [2004] 2 All SA 88 (T)
at [24]).

Appeal by director of public prosecutions against decision of court to release accused on bail
A DPP may appeal to the High Court against the decision of a lower court to release an
accused on bail or against the imposition of a condition of bail. A DPP may also appeal to the
Supreme Court of Appeal against the decision of a superior court to release an accused on
bail—s65A(2)(a).

In both instances the court hearing the appeal may order that the state should pay the
accused concerned the whole or any part of the costs which the accused may have incurred
in opposing the appeal. In the event of a successful appeal against release on bail, the court
which heard the appeal shall issue a warrant for the arrest of the
accused s 65A(3).

The High Court: power to regulate bail matters where statutes are silent
In Veenendal v Minister or Justice 1993 (1) SACR 154 (T) at 158i—j reference was made to
the 'inherent jurisdiction' of the High Court to grant bail in the absence of statutory
provisions authorising such a course. In this case it was accordingly held that a High Court
has inherent jurisdiction to grant bail to a person committed by a magistrate to prison in
terms of s 10(1) of Act 67 of 1962 (also generally Thornhill 1998 (1) SACR 177 (C) 180e—g,
where Ngcobo J stated (at 180j—181a) that s35(1)(f) of the Constitution 'reaffirms the
common-law inherent jurisdiction of the High Court to grant bail' (also further Tsotsi 2004
(2) SACR 273 (E) and Hlongwane 1989 (4) SA 79 (T).

It is clear that after the refusal of an appeal by the Supreme Court of Appeal, no court has
any statutory or common-law power to release a sentenced prisoner on bail—Chunguete v
Minister or Home Affairs 1990 (2) SA 836 (W); Hlongwane 1989 (4) SA 79 (T), and cf
generally Beehari v Attorney General, Natal 1956 (2) SA 598 (N).

No court has the power to order that a person who anticipates arrest should be released on
bail if arrested—Trope v Attorney General 1925 TPD 175.
A lower court's power concerning bail is entirely regulated by statute—Ex parte Graham: In
re United States on America v Graham 1987 (1) SA 368 (T).

The risks and factors which must be considered in determining a bail application
In Pineiro 1992 (1) SACR 577 (Nm) at 580c—d Frank J cited the following passage
in Du Toit et al 9-8B:
In the exercise of its discretion to grant or refuse bail, the court does in principle address
only one all-embracing issue: Will the interests of justice be prejudiced if the accused is
granted bail? And in this context it must be borne in mind that if an accused is refused bail
in circumstances where he or she will stand his or her trial, the interests of justice are also
prejudiced.

Four subsidiary questions arise:

1) If released on bail, will the accused stand his or her trial?
2) Will he or she interfere with State witnesses or the police investigation?
3) Will he or she commit further crimes?
4) Will his or her release be prejudicial to the maintenance of law and order and the
security of the state?
At the same time the court should determine whether any objection to release on bail
cannot suitably be met by appropriate conditions pertaining to release on bail.

When is the refusal of bail in the interests of justice?

Section 60(4) provides that the refusal to grant bail and the detention of an accused in
custody shall be in the interests of justice where one or more of the following grounds are
established:
a) where there is the likelihood that the accused, if on bail, will endanger the safety of
the public or any particular person or will commit a Schedule 1 offence; or
b) where there is the likelihood that the accused will attempt to evade his or her trial;
or
c) where there is the likelihood that the accused will attempt to influence or intimidate
witnesses or to conceal or destroy evidence; or
d) where there is the likelihood that the accused will undermine or jeopardise the
objectives or the proper functioning of the criminal justice system, including the bail
system; or
e) where, in exceptional circumstances, there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security.

The grounds in ss 60(4)(a) to 60(4)(e)—as referred to above—must be evaluated in

conjunction with the various guidelines (factors, considerations) which are in s60(5) to (9).

In Dlamini etc., the Constitutional Court had the opportunity to consider the constitutional
validity of s 60(4) to (9). These sections were held constitutional, and in para [43] of Dlamini
etc. it was said:
Such guidelines are no interference by the Legislature in the exercise of the judiciary's
adjudicative function; they are a proper exercise by the Legislature of its functions, including
the power and responsibility to afford the judiciary guidance where it regards it as
necessary. What is more, it is not only a proper exercise of legislative power, but a very
welcome one. Here, in conveniently tabulated form, the CPA now first provides (in s60(4)(a)
to (e)) a check-list of the main criteria to be considered against the grant of bail and then
proceeds (in ss [sic] (S) to (8A)) to itemise considerations that may go to make up those
criteria. Then, in ss [sic] (9) it provides a list of personal criteria pointing towards the grant of
bail.

The meaning of 'interests of justice' as used in s 60(4) and other related sections is provided
in Dlamini etc.

The ground in s60(4)(a): factors which the court may consider (s 60(5))
In considering whether the ground in s60(4)(a)—as cited above—has been established, the
court may, in terms of s60(5) take the following factors into account where applicable:
a) the degree of violence towards others implicit in the charge against the accused—
s60(5)(a);
b) any threat of violence which the accused may have made to any person—s60(5)(b);
c) any resentment the accused is alleged to harbour against any person—s60(5)(C);
d) any disposition to violence on the part of the accused, as is evident from his or her
past conduct—s60(5)(d);
e) any disposition of the accused to commit offences referred to in Schedule 1, as is
evident from his or her past conduct—s60(5)(e);
f) the prevalence of a particular type of offence—s60(5)(f);
g) any evidence that the accused previously committed an offence referred to in
Schedule 1 while released on bail—s60(5)(g); or
h) any other factor which in the opinion of the court should be taken into account—
s60(5)(h).

Bail can properly be refused if the court is satisfied that an accused has a propensity to
commit the crime with which he or she is charged and might continue to perpetrate such
crimes if released on bail—Patel 1970 (3) SA 565 (W).

This approach must be understood in the light of what was said by Cooper J in Peterson
1992 (2) SACR 52 (C) at 55e—r, that the purpose of granting bail to an accused is to
minimise interference in his or her lawful activities and, accordingly, if there is a risk of a
repetition of the same criminal conduct if the accused were released on bail, the 'interests
of society outweigh the rights of the lawless individual'.

The ground in s 60(4)(b): factors which the court may consider (s 60(6))
In Letaoana 1997 (11) BCLR 1581 (W) it was confirmed that s60(4)(b) should be read with
s60(6).

A further ground that the court must consider is the likelihood of the accused attempting to
evade his or her trial if released on bail—s60(4)(b). In considering this ground, the court
may, where applicable, take into account the following factors:
a) the emotional, family, community or occupational ties of the accused to the place at
which he or she is to be tried s60(6)(a);
b) the assets held by the accused and where such assets are situated s60(6)(b);
 c) the means and travel documents held by the accused, which may enable him or her
to leave the country s 60(6)(c);
d) the extent, if any, to which the accused can afford to forfeit the amount of bail which
may be set—s 60(6)(d);
e) the question whether the extradition of the accused could readily be effected should
he or she flee across the borders of the Republic in an attempt to evade his or her
trial—s 60(6)(e);
f) the nature and the gravity of the charge on which the accused is to be tried;
g) the strength of the case against the accused and the incentive that he or she may in
consequence have to attempt to evade his or her trial—s 60(6)(g);
h) the nature and gravity of the punishment which is likely to be imposed should the
accused be convicted of the charges against him or her s 60(6);
i) the binding effect and enforceability of bail conditions which may be imposed and
the ease with which such conditions could be breached—s 60(6); or
j) any other factor which in the opinion of the court should be taken into account—
s60(6)(j).

Some irrelevant factors

In deciding a bail application, a court should ignore an accused's threat to continue his or
her hunger strike if bail is refused Veenendal v Minister on Justice 1993 (1) SACR 154 (T).
The fact that an accused may receive indemnity from prosecution on the basis of an
agreement between the government and political bodies is also irrelevant in determining
bail—Lukas 1991 (2) SACR 429 (E).

Bail conditions
Discretionary special conditions as opposed to essential conditions
The court may make the release of an accused on bail subject to conditions which, in the
court's opinion, are in the interests of justice s 60(12). These conditions may be referred to
as discretionary special conditions. There’s a distinction between discretionary special
conditions of bail (as provided for in terms of s 62) and the essential conditions of bail (as
determined by s 58).

The court must establish whether any possible objection to release on bail can suitably be
met by setting one or more special conditions which can govern an accused's release on bail.
In terms of s 62 any court before which a charge is pending in respect of which bail has been
granted may at any stage, whether the bail was granted by that court or any other court, on
application by the prosecutor, add any further condition of bail
1) with regard to the reporting in person by the accused at any specified time and place to
any specified person or authority;
2) with regard to any place to which the accused is forbidden to go;
3) with regard to the prohibition of or control over communication by the accused with
witnesses for the prosecution;
4) with regard to the place at which any document may be served on him or her under the
Act;
5) which, in the opinion of the court, will ensure that the proper administration of justice is
not placed in jeopardy by the release of the accused.
Discretionary special bail conditions may include that the accused:
1) must report to a specified police station once or twice a day, or
2) must hand his or her passport over to the police, or
3) may not leave a specified magisterial district without informing the police official
charged with the investigation of the case.

Amending or supplementing bail conditions

Any court before which a charge is pending in respect of which bail has been granted may,
upon the application of the prosecutor or the accused, increase or reduce the amount of
bail determined under ss 59 and 60 or amend or supplement any conditions imposed under
s 60 or s 62, whether imposed by that court or by any other court.

Section 25 of the Child Justice Act 75 of 2008

Section 25(2)(c)(i) of the Child Justice Act 75 of 2008 provides that if after an inquiry
referred to in s 25(2)(b) of the same Act, it is found that a child and his or her parent (or
appropriate adult or guardian) are unable to pay any amount of money, the presiding officer
must set appropriate conditions that do not include an amount of money for the release on
bail of the child concerned.

Payment of bail money

A prerequisite for release on bail granted by a court is that the accused must deposit the
sum of money as determined by the court. The deposit must be made with the clerk of any
magistrate's court or with the registrar of any High Court, as the case may be, or with a
member of the correctional services at the prison where the accused is in custody, or with
any police official at the place where the accused is in custody s 60(13)(a).

In terms of s 60(13)(b) the court may order an accused to furnish a guarantee, with or
without sureties, that he or she will upon breach of the relevant bail pay and forfeit to the
state the sum of money as determined or as increased or reduced under s 63(1).

Payment of bail by third person

A third party may pay bail money for the benefit of the accused s 69(1) but no person shall
be allowed to deposit for the benefit of an accused any bail money if the official concerned
has reason to believe that such person, at any time before or after depositing such bail
money, has been indemnified or will be indemnified by any person in any manner against
loss of such bail money, or that he or she has received or will receive any financial benefit in
connection with the deposit of such bail money s 69(3).

Bail money, whether deposited by an accused or by any other person for the benefit of the
accused, must, notwithstanding that such bail money or any part thereof may have been
ceded to any person, be refunded only to the accused or the depositor, as the case may be s
69(2).

Advocates, attorneys and candidate legal practitioners should not pay bail for their clients
(para 58.2 of the Code of Conduct for All Legal Practitioners, Candidate Legal Practitioners
and Juristic Entities).

Cancellation of bail and forfeiture of bail money

Failure to observe conditions of bail
If the prosecutor applies to lead evidence to prove that the accused has failed to comply
with a condition of bail, the court before which the charge is pending must, if the accused is
present and denies that he or she failed to comply with the condition, or denies that his or
her failure to comply was due to fault on his or her part, proceed to hear such evidence as
the prosecutor and the accused may place before it s 66(1).

The court may, if it finds that the failure by the accused was due to fault on his or her part,
cancel the bail and declare the bail money forfeited to the state—s 66(3).

Failure to appear: procedure and consequences

If an accused who is released on bail fails
1) to appear at the place and on the date and at the time appointed for his or her trial or to
which the proceedings were adjourned, or
2) to remain in attendance, the court must cancel the bail provisionally, declare the bail
money provisionally forfeited to the state and issue a warrant for the arrest of the accused s
67(1).

A withdrawal of bail and forfeiture of bail money in terms of s 67 do not preclude a new
application for bail in terms of s 60. The fact that the bail was withdrawn will, however, be a
relevant fact which may be taken into account in the consideration of the new application
for bail Nkosi 1987 (1) SA 581 (T).

Cancellation of bail where accused about to abscond

Cancellation of bail must take place within the ambit of s 68 of the Act and with due regard
to common-law and constitutional requirements governing a fair hearing Matitwane 2018
(1) SACR 209 (N W M) where the court's failure to give the accused an opportunity to
respond to the intended cancellation of bail was found an irregularity.

An accused's bail may be cancelled if he or she, after bail had been granted, indulged in
further criminal conduct Kyriacou 2000 (2) SACR 704 (O).

In terms of s 68(1)(e) to (g), a similar procedure may be followed where the accused has not
disclosed or has not correctly disclosed all his or her previous convictions in the bail
proceedings or where the accused furnished false information in the bail proceedings which
might have affected the decision to grant bail; or it is in the interests of justice to do so.

Cancellation of bail at request of accused

Any court before which a charge is pending in respect of which the accused has been
released on bail may, upon application by the accused, cancel the bail and refund the bail
money if the accused is in custody on any other charge or is serving a sentence—s 68A.

Forfeiture and remission

Forfeiture has the same effect as a civil judgment upon the accused and can be executed in
the ordinary way. It should be noted that such forfeiture is not always ordered, e.g. when
such an order would subject the sureties to undeserved or undue hardship.
Apart from the court concerned, the Minister of Justice or any officer acting under his or her
authority may remit the whole or any part of bail money s 70. In Luzil 2018 (2) SACR 278
(WCC) at [12] it was said that the 'final loss' of bail money requires a process that is
substantively and procedurally fair to the accused and the depositor and the state. In the
event of suicide bail money should be returned to the accused's estate or the depositor
Engelbrecht 2012 (2) SACR 212 (GSJ).

Criminal liability on the ground of failure to appear or to comply with a condition of bail
Any person who has been released on bail and who fails without good cause to appear on
the date and at the place determined for his or her appearance, or to remain in attendance
until the proceedings have been disposed of, or who fails without good cause to comply
with a condition of bail imposed by the court in terms of s 60 or s 62 or s 63, shall be guilty
of an offence and shall on conviction be liable to a fine or to imprisonment not exceeding
one year s 67A.

Procedural and evidentiary rules relating to bail applications

A court hearing a bail application should not act as a 'passive umpire' Dlamini; Dladla and
Others; Joubert; Schietekat 1999 (2) SACR 51 (CC) [at 10]; Mathonsi 2016 (1) SACR 417 (GP)
at [14].

If the question of the possible release of an accused on bail is not raised by the accused or
the prosecutor, the court should mero motu ascertain from the accused whether he or she
wishes bail to be considered by the court s 60(1)(c); Ngwenya 1991 (2) SACR 520 (T);
Mokoena A Guide to Bail Applications 2 ed (2018) at 65.

Where the prosecutor does not oppose bail in respect of matters referred to in s 60(2)(a)
and (b), the court must require of the prosecutor to place on record the reasons for not
opposing the bail application s 60(2)(d). This is another inquisitorial feature of bail
proceedings.

In bail proceedings the court should not play a passive role in the presentation of evidence:
s 60(3) provides that if the court is of the opinion that it does not have reliable or sufficient
information or evidence at its disposal or that it lacks certain important information to reach
a decision on the bail application, the presiding officer shall order that such information or
evidence be placed before the court s 60(3).

The traditional adversarial right of the parties to be selective in their presentation of facts in
support of their respective cases has been curtailed by s 60(3). An active role is given to the
court by s 60(10) which provides that the court '... has the duty to weigh up the personal
interests of the accused against the interests of justice ...' despite the fact that the
prosecution does not oppose the granting of bail.

The inquisitorial role in a bail application does not entitle the court to resort to unfair and
excessively robust questioning of witnesses Gade [2007] 3 All SA 43 (NC).

Application of a free system of evidence

The strict rules of evidence are relaxed for purposes of a bail application. Hearsay may be
received more readily than at a trial—Maharaj 1976 (3) SA 205 (D) but a careful assessment
of such evidence is necessary.

Ex parte statements (oral statements made by the defence and prosecution from the bar)
may be received as 'it is desirable that… [bail]… applications should be dealt with
expeditiously - to prepare affidavits or find witnesses may cause delay… [and]… [t]he
absence of legal representation may also tip the balance in favour of informality'—Nichas
1977 (1) SA 257 (C) at 261A—B.

This easy-going procedure has disadvantages: very little of substance is on record in the
event of an appeal and ex parte statements also carry less weight than oral evidence. Oral
evidence on oath is preferable Nichas [at 262F—G] because the witness concerned can then
be cross-examined.

Proof of previous convictions

Previous convictions may be proved by the state in the course of a bail application—Patel
1970 (3) SA 565 (W) at 566B-C; Ho 1979 (3) SA 734 Attorney General, Zimbabwe v Phiri 1988
(2) SA 696 (ZHC).

The accused or his or her legal adviser is also compelled to inform the court whether the
accused has previously been convicted of an offence—s 60(11B)(a)(i).

Any charges pending against the accused must also be disclosed by the accused or his or her
legal representative, and there is also a duty to inform the court whether the accused has
been released on bail pending those charges s 60(11B)(a)(ii).

Where the legal representative submits the required information, whether in writing or
orally, the accused shall be required by the court to declare whether he or she confirms
such information or not s 60(11B)(b).

The fact that an accused is on parole or knowingly supplied false information at the bail
proceedings may be taken into account in determining the issue of release on bail s 60(5)(b)
and s 60(5)(c) read with s 60(4)(a).

The subsequent trial and the admissibility of the record of the bail proceedings
The record of the bail proceedings—excluding the information relating to previous
convictions, pending charges and release on bail in respect of pending charges—forms part
of the record of the trial of the accused following upon such bail proceedings—s 60(11B)(c)
as read with s 60(11B)(a).

S 60(11B)(c) contains a proviso to the effect that if the accused elects to testify during the
bail proceedings, the court must inform such accused that anything he or she says may be
used against him or her at his or her subsequent trial, and such evidence becomes
admissible in any subsequent proceedings.
The court must inform the bail applicant Sejaphale 2000 (1) SACR 603 (T) and Nzima 2001
(2) SACR 354 (C) and the judicial warning must be given even where the bail applicant has a
legal representative and even if the bail applicant submits an affidavit (as opposed to
testifying orally) Agliotti 2012 (1) SACR 559 (GSJ) at [39] and [41].

Where a formal bail hearing was held, the presiding judicial officer would ordinarily be
disqualified from presiding at the subsequent trial: the reasonable apprehension of bias (an
objective test) would require recusal.

In Dlamini etc [at 101.14], the Constitutional Court held that even though s 60(11B)(c) is
constitutional, the record of bail proceedings 'is neither automatically excluded from nor
included in the evidentiary material at trial. Whether or not it is to be excluded is governed
by the principles of a fair trial.'

In S v Booysen 2016 (1) SACR 521 (ECG) [at 22] it was explained that 'although provision is
made that the bail record forms part of the trial record, this does not mean that evidence
which is otherwise inadmissible at trial but which may be admissible during a bail hearing is
thereby rendered admissible. Such evidence is to be excluded at trial in accordance with the
principles of a fair trial.'

The relationship between s 60(11 and s 235

Bail proceedings may also be proved by relying on s 235. But here, too, inadmissible
evidence contained in the bail record should be excluded—Nomzaza 1996 (2) SACR 14
Chavulla 1999 (1) SACR 39 Machaba 2016 (1) SACR 1 (SCA) at [27].

Access to information held by the prosecution

Section 60(14) provides as follows:
Notwithstanding anything to the contrary contained in any law, no accused shall, for the
purpose of bail proceedings, have access to any information, record or document relating to
the offence in question, which is contained in, or forms part of, a police docket, including any
information, record or document which is held by any police official charged with the
investigation in question, unless the prosecutor otherwise directs:
Provided that this subsection shall not be construed as denying an accused access to any
information, record or document to which he or she may be entitled for purposes of his or
her trial.

In Dlamini etc [82] it was pointed out that Shabalala 1995 (2) SACR 761 (CC) is no authority
for the proposition that bail applicants, or their legal representatives, are entitled to access
to the police docket as Shabalala was concerned with access for purposes of the trial and
the fairness of the trial.

The burden and standard of proof in bail applications

The standard of proof required from an accused where he or she bears the burden of proof
as provided for in s 60(11)(a) and (b) is proof on a balance of probabilities. An accused who
carries the burden of proof should, as a general rule, also be required to lead evidence first
in support of his or her bail application—Nwabunwanne 2017 (2) SACR 124 (NCK) at [110].
In all cases falling outside the ambit of s 60(11)(a) and (b), the burden of proof is on the
prosecution - Tshabalala 1998 (2) SACR 259 (C). The standard of proof is proof on a balance
of probability since proof beyond a reasonable doubt is not necessary because guilt or
innocence in respect of the charge is not the issue.

The provisions of s 60(11)(a) and (b)

Section 60(11) provides as follows:
Notwithstanding any provision of this Act, where an accused is charged with an offence
referred to-
a) in Schedule 6, the court shall order that the accused be detained in custody until he or
she is dealt with in accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces evidence which satisfies the court that
exceptional circumstances exist which in the interests of justice permit his or her release;
b) in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt with in accordance with the law, unless the accused,
having been given a reasonable opportunity to do so, adduces evidence which satisfies
the court that the interests of justice permit his or her release.

Whenever the question arises in a bail application or during bail proceedings whether any
person is charged or is to be charged with an offence referred to in Schedule 5 or 6, a
written confirmation issued by a director of public prosecutions under paragraph (a) shall,
upon its mere production at such application or proceedings, be prima facie proof of the
charge to be brought against that person.

The meaning of 'exceptional circumstances' as used in s 60(11)(a)

In para [76] of its judgment in Dlamini etc, the Constitutional Court observed as follows:
In requiring that the circumstances proved must be exceptional, the subsection does
not say they must be circumstances above and beyond, and generally different from
those enumerated. Under the subsection, for instance, an accused charged with a
Sch 6 offence could establish the requirement by proving that there are exceptional
circumstances relating to his or her emotional condition that render it in the
interests of justice that release on bail be ordered notwithstanding the gravity of the
case. Other examples are readily to hand in the small body of case law that has
already been established in the short period since the 1997 amendment came into
operation on 1 August 1998.
Thus an otherwise dependable man charged with consensual sexual intercourse with
a 15-year-old girl, and who has a minor previous conviction dating back many years,
would technically fall within the ambit of ss (11)(a). Yet a prudent judicial officer
could find those circumstances sufficiently exceptional to warrant bail provided
there were no other factors adverse to the grant.

In Petersen 2008 (2) SACR 355 (C) at [55] [56] a full bench stated (emphasis added):
On the meaning and interpretation of 'exceptional circumstances' in this context
there have been wide-ranging opinions, from which it appears that it may be unwise
to attempt a definition of this concept. Generally speaking 'exceptional' is indicative
of something unusual, extraordinary, remarkable, peculiar or simply different. There
are, of course, varying degrees of exceptionality, unusualness, extraordinariness,
 remarkableness, peculiarity or difference. This depends on their context and on the
particular circumstances of the case under consideration... In the context of s the
exceptionality of the circumstances must be such as to persuade a court that it
would be in the interests of justice to order the release of the accused person. This
may, of course, mean different things to different people, so that allowance should
be made for a certain measure of flexibility in the judicial approach to the question.
See S v Mohammed 1999 (2) SACR 507 (C) ([1999] 4 All SA 533) at 513f-S15t: In
essence the court will be exercising a value judgement in accordance with all the
relevant facts and circumstances, and with reference to all the applicable legal
criteria.

In Jonas 1998 (2) SACR 677 (SECLD) the court gave the following examples of what would
constitute 'exceptional circumstances' for purposes of s 60(11)(a): a bail applicant's terminal
illness, urgent medical operation or cast-iron alibi. In this case it was held that 'exceptional
circumstances' are present where an accused has adduced acceptable evidence that the
prosecution's case against him or her is non-existent or subject to serious doubt. It should
be noted that in this case the prosecution had led no evidence to contradict the accused's
testimony.

The mere fact that a sentenced person was granted leave to appeal does not constitute an
exceptional circumstance.

In Rudolph 2010 (1) SACR 262 (SCA) Snyders JA, having referred to Dlamini etc and Botha,
concluded that 'ordinary circumstances present to an exceptional degree, may lead to a
finding that release on bail is justified'.

New facts required for a renewed bail application

An unsuccessful bail application does not preclude an accused from bringing a renewed bail
application (hereafter the 'second application'). However, for purposes of the second
application the accused must show that new facts have arisen, or have only come to light,
since the earlier bail refusal—Du Toit et al 9-52.

An accused has a right to a reasonable opportunity to present new facts for purposes of a
second application—Nwabunwanne 2017 (2) SACR 124 (NCK).

Release other than on bail

S 27 of the Child Justice Act 75 of 2008 reads as follows:
If, at any stage before a child's first appearance at a preliminary inquiry, the child has not
been released from detention in police custody and is charged, in the case of a child who is
a) (i) 10 years or older but under the age of 14 years, with any offence; or
(ii) 14 years or older, with an offence referred to in Schedule 1 or 2,
the police official must give consideration to the detention of the child in an appropriate
child and youth care centre, if a centre is available and there is a vacancy, or if a centre
or vacancy is not available, in a police cell or lock-up; or
b) 14 years or older, with an offence referred to in Schedule 3, the police official must
cause the child to be detained in a police cell or lock-up.
Section 27 of Act 75 of 2008 must also be read with the following sections of the same Act:
s 26 (approach to be followed when considering placement of child);
s 28 (protection of children detained in police custody);
s 29 (placement of a child in a child and youth care centre);
s 30 (placement in a prison);
s 31 (error regarding placement);
s 32 (factors to be taken into account by the presiding officer regarding further detention
and placement at preliminary inquiry or child justice court); and
s 33 (conditions of detention at preliminary enquiry or child justice court).

Release on warning
Release on warning is provided for in terms of s 72: an accused may be released by the court
or a police official and warned to appear before a specified court at a specified time and
date. The accused's release does not depend on the deposit of money or certain conditions.

This procedure is followed with lesser offences where there is no reason to expect that the
accused will abscond or try to evade justice. Section 72A makes provision for the
cancellation of release on warning on grounds similar to those which apply in respect of
cancellation of bail. See s 72A as read with s 68. Section 72 is subject to the Child Justice Act
75 of 2008.

Section 63: release on warning or on bail (or amendment of bail conditions) on account of
prison conditions
South African prisons are overcrowded by prisoners awaiting trial. Because of that, the
legislature inserted s 63A into the Act. The process as provided for in s 63A of the Act is set
in motion by a head of prison contemplated in the Correctional Services Act (hereafter the
'head of prison').

Section 63A(1) provides that if a head of prison 'is satisfied that the prison population of a
particular prison is reaching such proportions that it constitutes a material and imminent
threat to the human dignity, physical health or safety of an accused' who meets all the
criteria set by s 63A(1)(a) to (c), he or she may apply to a lower court for either the release
of such an accused on warning in lieu of bail (see s 63A(1)(aa)) or the amendment of such an
accused's bail conditions as imposed by a lower court (see s 63A(1)(bb)).

A head of prison can only bring a s 63A(1) application in respect of an accused

a) who is charged with an offence falling within the category of offences for which a police
official may grant bail in terms of section 59; or referred to in Schedule 7;
b) who has been granted bail by any lower court in respect of that offence, but is unable to
pay the amount of bail concerned; and
c) who is not also in detention in respect of any other offence falling outside the category
of offences referred to in paragraph (a).

An important criterion which must be met for an accused to fall within the ambit of a s
63A(1) application is that the accused must have been granted bail by a lower court in
respect of the offence concerned but should be unable to pay the amount of bail concerned.
See s 63A(1)(b). It may therefore be said that in principle a s 63A(1) application seeks to
achieve what the lower court by granting bail—essentially had in mind, namely liberty
pending the outcome of the trial.

An important control mechanism is that a s 63A(1) application must contain a written

certificate 'to the effect that the prosecuting authority does not oppose the application' s
63A(2)(a)(ii).

If the magistrate is satisfied that the s 63A(1) application complies with the requirements set
out in s 63(2)(a), he or she may either order the release of the accused (s 63A(3)(a)(i)) or
reduce the amount of bail determined under s 60 (s 63A(3)(a)(ii)). Where the release of the
accused is ordered, the magistrate may, if he or she deems it appropriate, amend or
supplement any condition imposed under s 60 or s 62 (s Section 63A(2)(d) provides that a s
63A(1) application may be considered in the presence of the accused if the magistrate
deems it necessary.

Bail applications by way of audiovisual link

Ss 159A to 159D make the above procedure possible in respect of persons older than 18. In
certain limited circumstances a court may hear a bail application while the applicant is
physically in prison. The procedure cannot be followed where the prosecution opposes bail
or evidence is required. The court also has the power to direct in the interests of justice that
the applicant be brought physically before it. The procedure is only possible in certain
magisterial districts and in respect of certain correctional facilities.
Unit 6: The right to be informed and the “plea” stage
Once the prosecutor has decided to charge the accused formally, the indictment (in a
superior court) or charge sheet (in a lower court) is the document informing all parties
involved in a criminal trial (i.e. the court, the state and the defence which includes the
accused and his legal representatives) of the substance of the trial: what offence was
committed and where, when and against whom.

It is a fundamental right of the accused to be fully informed about the charge against him.
This right is specifically acknowledged in sections 32 and 35(3)(a) of the Constitution. The
decision in Shabalala v Attorney-General 1995 (12) BCLR 1593 (CC) addressed access to the
contents of the police docket.

The Criminal Procedure Act lays down strict conditions that charge sheets must comply with
in order for the accused to be provided with sufficient information about the nature of the
charge against him.

Whether the state is obliged to provide certain particulars depends on the circumstances, as
well as whether the accused reasonably requires more information than is provided in the
charge sheet for the preparation and presentation of his defence. If the prosecutor refuses
to provide further particulars and the court concurs with the prosecutor, the accused may
be disadvantaged and may therefore successfully lodge an appeal.

The summary of essential facts forms part of the indictment in a High Court trial and the
court may take note of this summary in considering whether the accused has been
sufficiently informed. If the summary reflects insufficient information, the court must
instruct the state to provide the particulars that will enable the accused to prepare his
defence.

The accused will not be allowed to probe into the finest details of the state’s evidence
against him. It is not always easy to withhold evidence where the answer to the required
information is based on evidence, and the court will not always accept a statement by the
state that the answer to the requested information “is a matter for evidence”.

The information supplied by the state forms part of the record and must be proven by the
state. The prosecutor is bound by this information, unless the state abandons the allegation
in the specific particulars or asks for an amendment.

Enquiries on specific particulars must be answered with great care by prosecutors because
incorrect statements, which are not supported by the evidence, may jeopardise the
credibility of the state’s evidence – the first question that the defence will ask is how the
prosecutor would have come by the incorrect statement in the further particulars if not
from the state’s witness.

Charge sheets and indictments

Charge sheets should be kept as simple as possible and should be intelligible and a case that
can be paraphrased in simple terms must not be made intricate Rautenbach 1991 (2) SACR
700 (T).

Section 84 of the CPA sets out the requirements with which a charge should comply:
1) Subject to the provisions of this Act and of any other law relating to any particular
offence, a charge shall set forth the relevant offence in such manner and with such
particulars as to the time and place at which the offence is alleged to have been
committed and the person, if any, against whom and the property, if any, in respect of
which the offence is alleged to have been committed, as may be reasonably sufficient to
inform the accused of the nature of the charge.
2) Where any of the particulars referred to in subsection (1) are unknown to the prosecutor
it shall be sufficient to state the fact in the charge.
3) In criminal proceedings the description of any statutory offence in the words of the law
creating the offence, or in similar words, shall be sufficient.

This section provides that the relevant offence should be set forth in the charge in such a
manner that the accused is sufficiently informed of the nature of the charge brought against
him or her. All the elements of the offence should be mentioned in the charge.

Section 84(1) specifically requires that sufficient particulars as to the time and place at
which the offence is alleged to have been committed, the person (if any) against whom and
the property (if any) in respect of which the offence is alleged to have been committed,
should be furnished in the charge.

A typical charge of murder would read:

'That the accused is guilty of the crime of murder in that on or about 1 December 2019 and
at or near Sunnyside in the district of Pretoria, the accused did intentionally and unlawfully
kill John Smith, an adult male.'

Particulars furnished are:

1) the name of the offence for which the accused is indicted (murder);
2) all the elements of the crime murder (intention, unlawfulness, killing of another human
being);
3) the date on which and place where the offence was allegedly committed; and
4) the person against whom the offence was allegedly committed.

The offence must be described in clear legal terms and if a legal appellation for the offence
exists, it must be set forth by such appellation or it should be strictly and accurately
described—Endemann 1915 TPD 142 and Neumann 1949 (3) SA 1238 (Spec Crim Ct).

By reading the charge together with the appropriate section of Act 105 of 1997, the accused
is alerted to the applicability of the prescribed minimum sentence, and the accused is
afforded the opportunity to place facts before the court on which a deviation from the
prescribed sentence would be justified Kekana 2019 (1) SACR 1 (SCA) at [24].
S 92(1)(c) provides that if time is not of the essence of the offence, an indictment is not
necessarily deficient as a result of failure to state the time at which the offence was
committed but if the time of the offence is mentioned but it is proved that the act or offence
was committed on any other day or time not more than three months before or after the
day or period alleged, such proof will be taken to support such allegation as to the time of
the offence provided that time is not of the essence of the offence s 92(2).

If the accused raises an alibi as a defence and the court considers that the accused might be
prejudiced in making such defence if proof were to be admitted that the act or offence had
been committed on some day or time other than the day or time stated in the indictment,
then the court must reject such proof (even though the time proposed to be proved is
within the aforesaid three-month period).

Where a defence of an alibi has been raised and the trial court accepts the evidence in
support thereof as being possibly true, it follows that the trial court should find that there is
a reasonable possibility that the prosecution's evidence is mistaken or false as the two
versions cannot both be true.

Errors or defects in the charge sheet

Errors not rectified by section 86 of the CPA may be corrected by evidence in terms of
section 88. The difference between the two lies in the fact that certain errors or defects in
charge sheets may be corrected automatically in terms of section 88, while errors or defects
brought to the attention of the court, or noticed by the court itself, cancel the automatic
effect of section 88 and must be amended by the court in terms of section 86.

Section 86 allows for the amendment of charge sheets that are defective where
1) a material allegation, such as an element of the offence in question, is not reflected in
the charge sheet;
2) there is a material difference between the allegation in the charge sheet and the
evidence that has been led;
3) words or particulars that should have been included in the charge sheet are absent;
4) words or particulars that should be excluded from the charge sheet are present;
5) there is any other type of defect in the charge sheet.

Vigilance is required to prevent the interests of the accused from being harmed. The court
may not allow an amendment to replace charges with new charges, nor for the defence of
the accused to be prejudiced by the amendment.

The combined effect of sections 86 and 88 is the following:

1) Unless it is prejudicial, any amendment to a charge may be made at any time before
judgment is passed;
2) Inadvertent failure to amend a charge does not affect a verdict of guilty, provided that
all the necessary evidence has been adduced;
3) A defect in the charge may be adduced on appeal only if the trial court knowingly failed
to correct it.

A defect can be cured only by evidence proper and not, for example, by the invocation of
statutory provisions and presumptions—AR Wholesalers 1975 (1) SA 551 (NC) contains a
thorough exposition regarding s 88); Pheka 1975 (4) SA 230 (NC). The replies of an accused
(who has pleaded guilty) to questioning in terms of s 112(1)(b) may, for the purposes of s
88, be treated as 'evidence' capable of curing a defect in the charge—Tshivhule 1985 (4) SA
48 (6).

Section 88 does not authorise replacement of one offence with another offence proved by
evidence—Sarjoo 1978 (4) SA 520 (N). (Substitution of 'jersey' for 'meat' in a theft charge
would amount to substitution of a charge—Kuse 1990 (1) SACR 191.

Section 83 gives the prosecutor the authority to charge the accused with all the offences
that may be substantiated by the evidence. Some of the offences with which the accused is
charged may therefore overlap, which may give rise to a duplication of convictions.

The possibility of duplication is less potentially harmful in the formulation of the charges in
the charge sheet to which the accused must plead than at the end of the trial, hence, at the
start of the trial, the court is unlikely to find that, because of a splitting of charges, the state
may not continue with all the alleged charges.

It is incumbent on the court to ensure that no duplication of convictions occurs where

multiple charges are brought against the accused because the consequences of duplication
may be gravely prejudicial to the accused when it comes to sentencing and the
consideration of previous convictions.

Splitting of charges, doubling or duplicating convictions has been a problem on many

occasions and has led to divergent decisions in our courts.

The courts have developed two tests to determine whether there has been splitting of
offences or duplication of convictions:
a) The first test is commonly known as the 'single intent test' and asks whether the
accused's conduct constitutes one continuous criminal transaction, as set out in Sabuyi
1905 TS 170 and Johannes 1925 TPD 782;
b) The second test is commonly known as the 'evidence test': the test as to whether the
evidence necessary to establish one crime involves proving another crime, as set out in
Gordon 1909 EDC 214 and Johannes 1925 TPD 782.

However, it would be worthwhile to determine whether, in a new trial, the accused would
be exposed to the same charge as in the first trial (principle of autrefois acquit, which means
that in any subsequent prosecution in respect of the same facts, the accused can rely on a
plea of previous acquittal) in order to ascertain whether there is a splitting or duplication of
charges or convictions in a particular instance.

Owing to the diversity of offences and the individual nature of each set of facts, it is simply
not possible to formulate a set of fixed rules to test for the presence or absence of a
duplication of convictions.

The fact whether the actions of an accused amount to more than one offence must be
judged in each case on the basis of “sound reasoning and the court’s perception of fairness”
(Kuzwayo 1960 (1) SA 240 (A) at 344B). The operative principle here is that the court has to
determine whether all the punishable facts in the conduct of the accused can be
encapsulated into one charge or not. If so, only one charge should be brought against him. If
not, several charges can be brought.

Section 336 provides that where an act (or omission) constitutes an offence under two or
more statutory provisions or is an offence against a statutory provision and the common
law, the perpetrator may be prosecuted and punished under either the statutory provision
or the common law and he may not be held liable to more than one punishment for the act
or omission constituting the offence. Illustrations of the application of this principle are:
1) Where a man is charged with incest on the ground of connection with his daughter (who
is under the age of 16) as well as with connection with a girl (the same daughter) who is
under the age of 16 arising out of the same act of carnal intercourse, this will amount to
undue splitting;
2) There is undue splitting of charges if the accused is charged (in actual fact convicted) in
respect of the same act with assault and with committing the statutory offence of
pointing a firearm Wegener 1938 EDL 3 and cf Blaau 1973 (2) PH (C).;
3) Where an accused is convicted of both driving under the influence of liquor and reckless
driving, and both counts are based on the same facts, it would constitute an incorrect
duplication of convictions—Engelbrecht 2001 (2) SACR 38 (C).

Section 336 deals only with cases where there was a single act (or omission) and where at
least one of the offences is a statutory offence.

A single act constitutes more than one offence at common law illustrations:
 Where the accused was found stripping lead from a roof intending to steal it, his
conviction on a charge of malicious injury to property was held incompetent, since, in
respect of the same act, he had been convicted of theft Hendricks 17 CTR 470;
 Where the accused was charged with both rape and incest, arising from the same act of
intercourse, he was convicted of only one of these offences—T 1940 CPD 14;
 Where two persons are killed in the same road accident, it is improper to convict the
accused on two counts of culpable homicide. A single charge should make reference to
both the deceased Mampa 1985 (4) SA 633 (C).

Where more than one act of the same nature or of more or less the same nature is
committed practically simultaneously, constituting more than one offence (statutory or
common-law offence), the test applied by our courts in this case is to ask if the acts were
done with a single intent and they were part of one continuous transaction or if the
evidence required to prove the one charge necessarily involve proving the other as well.

The tests are in the alternative: they need not both be answered in the affirmative. If the
answer to one of the questions is in the affirmative, it is said to be an improper splitting. In S
v Maneli 2009 (1) SACR 509 (SCA) at [8] the court held as follows:
One such test is to ask whether two or more acts were done with a single intent and
constitute one continuous criminal transaction. Another is to ask whether the
evidence necessary to establish one crime involves proving another crime. In
Whitehead 2008 (1) SACR 431 (SCA) at [5] the court held that there is not an all
embracing formula and the various tests are mere guidelines that are not exhaustive.

Addition of additional accused persons and charges

Section 81(1) of the Criminal Procedure Act:
Any number of 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, and where several
charges are so joined, each charge shall be numbered consecutively.

The prosecutor usually charges the accused with the most serious crime as main charge and
the lesser offences as alternative charges. Any number of offences may be charged against
the same accused in one indictment s 81(1) but it must take place at any time before any
evidence has been led in respect of any particular charge. If this provision is not complied
with, the proceedings are void, not merely voidable—Thipe 1988 (3) SA 346 (T).

The court may also direct that the charges thus joined be tried separately, if in its opinion
this will be in the interests of justice s 81(2).
Where the state has knowledge of a number of charges against a person, it should
endeavour to bring such charges before the court in one indictment so that they are tried
together—Lubbe 1925 TPD 219 and Jantjies 1982 (4) SA 790 (C). But the trial of separate
charges may not take place separately on the basis of 'trials within the main trial'—Majola
1971 (3) SA 804 (N).

Up to 1963 a charge of murder could not be joined in the same indictment with any other
charge, but this limitation has now been removed see, for example, Mathebula 1978 (2) SA
607 (A).

Joinder has to take place in both instances before any evidence relating to a particular
charge has been led.

Several accused be charged together

Section 157(1) of the Criminal Procedure Act.
An accused may be joined with any other accused in the same criminal proceedings at any
time before any evidence has been led in respect of the charge in question.

S 156 of the Criminal Procedure Act provides that persons committing separate offences at
the same time and at the same place may be tried together. The reason is to avoid
successive trials involving different accused but based essentially on the same evidence. An
absence of connection in time, space and fact may lead to a misjoinder (Makganje 1993 (2)
SACR 621 (B)).

Section 156 provides that whenever it is alleged in a charge that two or more persons have
committed separate offences at the same place and time, or at about the same time, and
the prosecutor informs the court that any evidence which is in his or her opinion admissible
at the trial of one of those persons is in his or her opinion also admissible at the trial of the
other person or persons, such persons may be tried jointly for those offences on that
charge.

Persons who through participation in the same transaction commit different offences may
be jointly charged and tried; e.g, where a man procures and furnishes premises in which
women carry on prostitution, on the proceeds whereof he lives, he and they may be
charged and tried together: he with living on the proceeds of prostitution and they with
carrying on the practice.

In Gelderbloem 1962 (3) SA 631 (C), it was held that where two persons were charged with
having pointed a firearm at the complainant, each person's conduct constituted a separate
transaction and that joinder was irregular. This is because although separate offences were
committed at the same time and place, evidence that X had pointed a gun would not be
admissible in a charge that Y had pointed a gun or vice versa.

Where statutory provisions contain exceptions or provisos in terms where of certain

persons are exempted from the operation of a statutory provision, in terms of s 90, it is not
necessary for the state to specify or negative such exceptions, etc in the charge. If the
prosecutor does this, it need not be proved by the prosecution. It is for the accused to prove
that he or she is protected by such an exception, exemption, etc.
The golden rule is that incriminating factors must be proved by the prosecution and
exculpatory factors by the accused.

Arraignment and plea of the accused

The ultimate decision as to what charge(s) will be brought against the accused rests with
the prosecutor as dominus litis. The investigating police officer for the case plays no role
although he will have already indicated on the dossier what he regards the perpetrated
offence to be, and whether the dossier contains sufficient evidence to charge the accused.

That is why an investigating police officer must have a thorough grounding in criminal law,
the law of criminal procedure and the law of evidence in order to know which offence has
been committed under given circumstances, in what court the accused will probably be
tried, whether the evidence will be sufficient, whether it is admissible evidence, and
whether all the proper pre-trial procedures have been followed.

A case that has been investigated poorly, ineptly and improperly has the same effect as the
ignorance and ineptitude on the part of the prosecutor.

Once the state is satisfied that there is a prima facie case against the accused on the
evidence in the dossier or through consultations with witnesses, the prosecutor formulates
the charges in the charge sheet or indictment against the accused and puts the accused on
trial by charging Him: by arraigning the accused.

'Arraignment' is described as follows in Kerr v R 1907 ECD 324:

The bringing of the accused to court, informing him of the offence with which he is
charged, calling upon the accused for his plea and entering it constitute the
arraignment of the accused and when his plea has been recorded he is said to stand
arraigned.

So, arraignment is basically the calling of the accused to appear in court where he is informed of
the charge against him and asked to plead to the charge. Once the accused has issued a plea, he
is considered to be arraigned.

Arraignment must comply with s 35(3)(a) (m) of the Constitution, which provides that every
accused person has a right to a fair trial, which includes the right to be informed of the
charge with sufficient detail to answer it, to have adequate time and facilities to prepare a
defence, to have a public trial before an ordinary court, to have his or her trial begin and
conclude without unreasonable delay, to be present when being tried, and to have legal
counsel either of his or her own choice or assigned to him or her at state expense, if
substantial injustice would otherwise result.

A trial should not be tainted by an irregularity or illegality that is a departure from the
formalities, rules and principles of procedure according to which our law requires a criminal
trial to be initiated or conducted — Rudman 1992 (1) SA 343 (A).
The right to a fair trial is broader and encompasses rights other than those that are
specifically set out in s 35(3)(a) (m) of the Constitution, such as maintaining the integrity of
the administration of justice, which is an important principle of fundamental justice (Du Toit
v The Magistrate 2016 (2) SACR 112 (SCA)).

The accused does not have to be in possession of the charge sheet to be charged; he is
officially charged as soon as an official decision has been taken and he is informed
accordingly. His right to a speedy trial comes into effect at the same time. When the accused
has been put on trial, he is instructed to plead.

Formal objections to the indictment or charge must be taken before the accused has
pleaded, not afterwards (s 85). The defect, if any, can, however, be rectified during the trial
in terms of s 86 or s 88. If not, the point can still be raised at the end of the trial as a reason
for acquittal—David v Van Niekerk 1958 (3) SA 82 (T).

When an accused is requested to plead he or she can do so him- or herself or his or her legal
representative can plead on his or her behalf provided he or she is duly instructed and not
prohibited by law from appearing—Mpongoshe 1980 (4) SA 593 (A).

When the legal adviser replies in writing or orally to any question by the court in terms of s
115(3), the accused must also confirm this Mbuyisa 2012 (1) SACR 571 (SCA) on the content
of such statement.

An accused's plea must be recorded, otherwise a conviction cannot stand - Brandt 1972 (1)
PH HS17 (NC); contra Williams 1977 [1] WLR 400 (CA), where the English Court of Appeal
held that where an accused intended to plead not guilty, but by an oversight had not been
asked to plead, the defective arraignment had not invalidated the ensuing trial.

When plea by accused may be dispensed with

A plea may be dispensed with in the following circumstances:
1) Refusal to plead
The court shall enter a plea of not guilty if the accused will not plead or answer directly to
the charge—Monnanyane 1977 (3) SA 976 (O). Such a plea entered by the court has the
same effect as if the accused had actually pleaded (s 109). In Mothopeng 1965 (4) SA 484 (T)
the opinion was expressed that the provisions of s 109 should not be invoked where an
accused bona fide refuses to plead such as where the case was formally postponed to a
certain date but then brought on before such date.

2) Ambiguity in plea
If the accused does not do so directly upon being required to plead but makes a statement
in which he admits certain facts or pleads guilty adding reservations and refutations (e.g.,
'guilty, but he attacked me first') the court should enter a plea of not guilty and then
question the accused in terms of s 115 to ascertain what facts he or she is prepared to
admit.

3) Obstructive and rowdy behaviour

If the accused's refusal to plead is accompanied by such improper behaviour that it
obstructs the conduct of the proceedings of the court, the court may order the accused to
be removed and may direct the trial to proceed in his or her absence s 159(1). This power
must be exercised with circumspection and a warning to the effect that if the accused
continues the court could proceed with the trial in his or her absence might influence the
accused to change his or her attitude and state his or her case—Mokoa 1985 (1) SA 350 (O).

4) Mentally disabled accused

If it appears to be uncertain whether the accused is capable of understanding the
proceedings at the trial when he is called upon to plead to a charge or at any stage of the
proceedings based on his or her mental state so as to be able to make a proper defence, the
court must direct an enquiry into his or her mental state in order for the court to make a
finding and issue directions as to how to deal with the accused (s 77(1) and s 79 of the CPA
which require an enquiry to be conducted on an accused to see if they are able to
understand proceedings).

This should be understood in the light of s 78(1) of the CPA which says,
A person who commits an act or makes an omission which constitutes an offence and who at
the time of such commission or omission suffers from a mental illness or mental defect which
makes him or her incapable -
(a) of appreciating the wrongfulness of his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or her act or
omission,
shall not be criminally responsible for such act or omission.

5) Objections to the charge

Section 85(1) provides:
An accused may, before pleading object to the charge on the ground –
a) that the charge does not comply with the provisions of this Act relating to the essentials
of a charge;
b) that the charge does not set out an essential element of the relevant offence;
c) that the charge does not disclose an offence;
d) that the charge does not contain sufficient particulars of any matter alleged in the
charge:
Provided that such an objection may not be raised to a charge when he is required in
terms of s 119 or 122A to plead thereto in the magistrate's court; or
e) that the accused is not correctly named or described in the charge.

Reasonable notice must be given to the prosecution that the accused intends raising an
objection. If the court upholds the objection it may order the prosecution to amend the
charge or to deliver particulars to the accused. Where the prosecution fails to comply with
such an order, the court may quash the charge s 85(2); Nathaniel 1987 (2) SA 225 (SWA).

Procedurally, an objection in terms of s 85 should be raised before the accused pleads to the
charge but there is nothing which precludes an accused from raising such a point of law at
the close of the case for the prosecution. Mayekiso 1988 (4) SA 738 (W).
Examples of notorious cases where the court quashed an indictment are Basson 2007 (1)
SACR 566 (CC) and Andrews 1948 (3) SA 577 (Spec Crim ct).

Plea bargaining
This takes the form of a traditional plea negotiation and agreement between the accused
and the state. The objective is to lighten the burden that the accused has to bear and to
reduce state time and costs regarding a lengthy criminal trial.

The disadvantage of an informal plea agreement is that the prosecutor and accused cannot
reach a binding agreement with regard to the facts and sentence to be imposed without the
co-operation of the presiding officer as the prosecutor and the defence cannot bind the
court to a sentence but the prosecutor may agree to suggest to the court a possible light, or
lighter, sentence: a fine and not imprisonment.

In accordance with notions of basic fairness and justice, the State is to be held to a plea
bargain it has made see North Western Dense Concrete CC v Director or Public Prosecutions
(Western Cape) 1999 (2) SACR 669 (C).

The statutory plea bargaining is authorised by s 105A of the CPA which provides conditions
and other factors regulating plea bargaining. With statutory plea bargaining, the prosecutor
can also reach an agreement with the defence on the sentence to be imposed.

Mandatory formalities are also prescribed such as that the whole agreement must be in
writing, the agreement must be entered into before the commencement of the trial, i.e.
before plea.

In determining whether a plea agreement complies with the requirements stipulated in s

105A, a court will also examine sub-s (1)(b)(iii), which provides for the participation of the
complainant/victim—Sassin [2003] 4 All SA 506 (NC) but the right of the victim to
participate in the plea and sentence agreement does not extend to a right having standing,
nor is it an unqualified right to give evidence, to hand up papers nor to be heard on demand
Wickham v Magistrate, Stellenbosch 2017 (1) SACR 209 (CC).

Only a prosecutor who has been authorised in writing by the National Director of Public
Prosecutions and a legally represented accused may negotiate an agreement on plea and
sentence. Non-represented accused are excluded from the provision. The judicial officer is
not to participate in the negotiations.

In court, the judicial officer must question the accused on the contents of the agreement to
ascertain whether he or she is in fact admitting all the allegations in the charge. If the court
is satisfied, it proceeds to the sentencing phase without, for the moment, recording a
conviction.

When considering the sentence agreement, the court must be satisfied that the sentence
agreement is just, but if not the court informs the parties of the sentence which the court
considers just but the court may not impose a sentence contrary to that contained in a plea
agreement without advising the State and the accused that it is of the opinion that the
proposed sentence is unjust, as contemplated in s 105A(9) of the Act—Jansen v The State
2016 (1) SACR 377 (SCA).

The following diagram illustrates the difference between statutory plea bargaining and
traditional plea bargaining:

Pleas
4.1 Pleas mentioned in the Act
Section 106 provides that the accused may plead:
a) that he or she is guilty of the offence charged or of any offence of which he or she may
be convicted on the charge;
b) that he or she is not guilty;
c) that he or she has already been convicted of the offence with which he is charged
(autrefois convict);
d) that he or she has already been acquitted of the offence with which he or she is charged
(autrefois acquit);
e) that he or she has received a free pardon from the President for the offence charged;
f) that the court has no jurisdiction to try the offence;
g) that he or she has been discharged from prosecution in terms of s 204 after giving
satisfactory evidence for the State;
h) that the prosecutor has no title to prosecute; or
i) that the prosecution may not be resumed or instituted owing to an order by a court
under s 342A(3)(c);
j) Truth and public benefit (s 107)
k) Lis pendens – not provided for by the Criminal Procedure Act.

Section 106:
2) Two or more pleas may be pleaded together except that a plea of guilty may not be
pleaded with any other plea to the same charge.
3) An accused shall give reasonable notice to the prosecution of his intention to plead a
plea other than the plea of guilty or not guilty, and shall in such notice state the ground
on which he bases his plea…
4) An accused who pleads to a charge, other than a plea that the court has no jurisdiction
to try the offence, or an accused on behalf of whom a plea of not guilty is entered by the
court, shall, save as is otherwise expressly provided by this Act or any other law, be
entitled to demand that he be acquitted or be convicted.

Plea of guilty
In lesser offences, an accused may be found guilty immediately after he has pleaded guilty,
without any evidence having been led by the state. From the wording of section 112(1)(a), a
court may do this only if it finds that the crime does not justify the imposition of
imprisonment or any other form of detention without the option of a fine, or of a fine in
excess of the amount stipulated from time to time in the relevant Government Gazette.

For serious crimes the portion of section 112 that relates to the more serious offences is
applicable. If the presiding judge is of the opinion that the crime justifies one of serious
sanctions or if he is requested to consider them by the prosecutor, then, in terms of section
112(1)(b), he must question the accused about the alleged facts of the case in order to make
sure that he admits to the allegations in the charge with respect to which he pleaded.

Only if the court is satisfied that, on the grounds of the accused’s answers, he is guilty of the
crime with respect to which he has pleaded guilty, may the court find the accused guilty of
the crime without any evidence being led by the state, even if one of the s 112 sentences is
appropriate.

The point at which the accused offers a plea, the plea stage, is important because the plea
issued by the accused determines how the trial will proceed and develop. Multiple pleas
may be offered, together with a plea of not guilty, but a plea of guilty may not be offered
together with any other plea.

The pleas of autrefois acquit and autrefois convict

The pleas of autrefois acquit and autrefois convict are based on the principle that the public
needs to be protected against the possibility of repeated prosecutions for the same
conduct. Such protection is necessary in the interests of fairness and public interest in the
finality of judgments (Basson 2004 (1) SACR 285 (CC)).

The principles determining each of these special pleas seem quite similar, but there are
essential differences between them. In McIntyre 1997 (2) SACR 333 (T), the court found that
section 35(3) of the Constitution broadened the law on what was previously regarded as
“the same offence”.

This extension is based on the German principle that takes into account the deed or
omission (i.e. the action) with respect to which the accused was previously found guilty or
not guilty, rather than the description of the offence. The approach used in the
multiplication (or duplication) of convictions may also be followed to determine whether
the present offence or action is essentially the same as the one with which the accused was
charged at the first trial.
The above pleas may even be raised for the first time on appeal if the accused did not
expressly relinquish them during the trial. A failure to enter the pleas during the trial does
not bar the accused from doing so on appeal.

In Ndou, the court found that where it was impossible for the state to charge the accused with
the more serious offence at the first trial (the victim is still alive at the time of the first trial, but
dies after the verdict of guilty or not guilty has been passed), the accused could be charged
anew, without his being able to invoke any of the stated pleas. The rule is that the plea of
autrefois acquit must succeed if the offences are essentially the same (or the acts are the same).

A plea of truth and public benefit

This may only be pleaded with the guilty plea and under a charge of criminal defamation.

Lis pendens
This can only be used where another case pending in another court against the accused is a
criminal case on similar facts. If the other trial is completed and a plea of autrefois acquit or
convict does not then become effective, the fact that the other trial took place will be
irrelevant at the trial where the plea of lis pendens has been raised. Lubisi 1980 (1) SA 187
(T); Motsepa 1982 (1) SA 304 (0). Mayisa 1983 (4) SA 242 (T).

A plea of lack of jurisdiction

This cannot be raised and decided as an objection to the jurisdiction of the court prior to the
plea proceedings, as in doing so the court is assuming jurisdiction in circumstances where it
does not have jurisdiction Mamase 2010 (1) SACR 121 (SCA).

Such a plea may be based on an allegation that the offence was committed outside the area
of jurisdiction of the court or that some condition precedent necessary to confer jurisdiction
on the court has not been satisfied; e.g., where the authority of the magistrate's court to try
certain military offences was derived by law from the written direction of a military official, a
conviction was quashed in the absence of proof that such a direction had been given
O'Carroll 17 ECD 79.

A plea of diplomatic immunity presumably also falls under this subsection Penrose 1966 (1)
SA 5 (N) at 6C. Prescription of an offence would probably also be raised by this plea.

If during a trial it appears that the accused is before a court by which he or she is not
properly triable, the accused is not by reason thereof entitled to an acquittal (s 106(4)), but
the court may at the request of the accused direct that he or she be tried before the proper
court and remand him or her to such court. If the accused fails to request removal, the trial
must proceed and the verdict and judgment are valid.

Lack of authority to prosecute may be raised if the prosecutor has not been properly
appointed in which case the proceedings are a nullity. An advocate appearing on behalf of
the director of public prosecutions may be asked for his or her delegation to prosecute.

Correction of plea of guilty

If the court at any stage of the proceedings under s 112 and before sentence is passed is in
doubt whether the accused is
1) in law guilty of the offence to which he or she has pleaded guilty, or is satisfied that
2) the accused does not admit an allegation in the charge, or
3) the accused has incorrectly admitted any such allegation, or
4) the accused has a valid defence to the charge, or
5) the court is of the opinion for any other reason that the accused's plea of guilty should
not stand,
the court shall record a plea of not guilty and require the prosecutor to proceed with the
prosecution s 113. The conviction lapses automatically Osborne 1978 (3) SA 173 (C). Du
Plessis 1978 (2) SA 496; Olckers 1978 (4) SA 169 (SWA); Lukele 1978 (4) SA 450 (T); Chetty v
Cronje 1979 (1) SA 294 (0); Aranoft 1979 (2) SA 179 (T); Mazwi 1982 (2) SA 344 (T); Jada
1985 (2) SA 182 (E).

Admissions already made stand as proof of the relevant facts. Where such admissions
embrace all the facts the State must prove in order to establish the offence and the guilt of
the accused in respect thereof, the accused can be convicted—Ncube 1981 (3) SA 511 (T).

Committal for sentence by regional court

If a magistrate's court, after conviction following on a plea of guilty but before sentence, is
of the opinion
1) that the offence is of such a nature or magnitude that it merits punishment in excess of
the jurisdiction of a magistrate's court, or
2) that the previous convictions of the accused are such that the offence merits
punishment in excess of the jurisdiction of a magistrate's court, or
3) that the accused is a dangerous criminal (as referred to in s 286A(1)), the court shall stop
the proceedings and commit the accused for sentence by a regional court having
jurisdiction s 114(1). The accused is then sentenced by the regional court.

Exceptions to the principle that the accused is entitled to a verdict after pleading
The exceptions are as follows:
1) where the magistrate has recused himself from trial;
2) where separation of trials takes place;
3) where the trial is referred to a regional court or converted to a preparatory examination;
4) where the magistrate dies, resigns or is dismissed;
5) where the trial is referred to a regional court or converted to a preparatory trial/hearing;
6) where the accused is before the wrong court;
7) where an application by the DPP to stop a private prosecution has been made;
8) where a child is referred to a children’s court;
9) where the accused, after pleading, becomes mentally incapable of understanding the
proceedings;
10) where an accused has pleaded in terms of section 119;
11) where the prosecution has been stopped without the required consent of the DPP;
12) where the accused avers that the court lacks jurisdiction.
Unit 7: The court and matters relating to trial
The seat of a particular court will naturally be the place where trials in that court will be
held. For the High Court, the venue of each court is fixed at the permanent seat of the
divisions or is specified in the proclamation constituting circuit courts.

Lower courts must sit at the places assigned by the President in terms of s 2 of the
Magistrates' Courts Act 32 of 1944. Certain exceptions may be allowed, e.g., juvenile
accused and patients in institutions: the venue of the court may be changed to a room other
than the regular courtroom or to the institution respectively.

A child justice court is any ordinary criminal trial court dealing with, plea, trial or sentencing
of a child under the age of 18 years (and in certain circumstances a person between 18 and
21 years of age s 1 of the Child Justice Act 75 of 2008).

If the accused is brought before a court which lacks jurisdiction to try him or her, he or she
may object to the jurisdiction of that court but if they fail to object and the trial, having run
its normal course, ends in a conviction, the lack of jurisdiction will not affect the finding
Nqunelo 1948 (4) SA 428 (0).

Section 149 makes provision for the removal of a criminal case from one division of the High
Court to another division of the High Court on application of either party.

Every accused is entitled to be tried by a court that is properly constituted. Normally, a

criminal court consists of a presiding judicial officer (magistrate, regional magistrate or
judge) who sits on the bench with or without assessors.

If any person other than the accused disturbs the peace and order in the court the presiding
officer may order that the person be removed from the court and kept in detention until the
court adjourns.

Assessors – lower courts

The possibility of including assessors in the judicial component of the trial forms part of the
overarching principle of justice in the criminal process. In certain circumstances, it is
desirable and even compulsory for the judicial officer to obtain the assistance of other
persons so that justice is seen to be done fairly and also to allow the community to
participate in the legal process.

The position of assessors in the lower courts differs materially from that of assessors in the
High Courts. Lay persons from the community who have no legal knowledge or experience,
as well as persons with certain skills, are appointed from a list of assessors drawn from the
community and appointed to assist the court (in the ordinary course of events, the assessors
are qualified in a particular field relevant to the matter):
a) in bail proceedings,
b) with fact-finding during the trial,
c) with the imposition of a fitting, community-based punishment.
In the case of (a) and (c), the assessors may act in an advisory position, or they may act as
members of the court in the case of (b), in which case the voice or decision of the assessor
on the facts has the same authority as that of the magistrate.

For a lower court to be properly constituted, one lay assessor (in the cases of (a) and (c)
above), or two (in the case of (b)) must be appointed where the charge is one of murder,
rape, robbery with aggravating circumstances or assault where the victim has suffered
grievous bodily harm unless the accused requests that the trial proceed without assessors (s
93ter(1)(a) of Act 32 of 1944). Lay assessors are sworn in, in writing, before the
commencement of the trial.

The duties of the lower court assessor start once the pleas have been entered. Assessors
may not assist the court with legal findings after evidence has been led. Where this occurs,
the proceedings are null and void – see section 93 ter (3) and (6) of the Magistrates’ Courts
Act 32 of 1944.

The powers of lay assessors who participate in the trial are regulated in the above Act.
These powers are the same as the powers determined by section 145 of the Criminal
Procedure Act for assessors who preside in the High Courts, except that the court has to
explain any relevant rule or principle in the law of evidence to lay assessors before judgment
is passed.

In matters of fact, the decision of the court is that of the majority thereof whereas in
matters of law (and deciding whether a matter for decision is a matter of law) are decided
by the judicial officer s 93ter of Act 32 of 1944.

The principles of withdrawal, impartiality and fairness are just as applicable to the assessor
as to the judicial officer.

The prosecutor or the accused may apply for the recusal of the assessor and the presiding
officer may order the recusal of the assessor if he or she is satisfied that:
1) the assessor has a personal interest in the proceedings concerned;
2) there are reasonable grounds for believing that there is likely to be a conflict of interests
as a result of the assessor's participation in the proceedings concerned;
3) there are reasonable grounds for believing that there is a likelihood of bias on the part of
the assessor;
4) the assessor is (for any reason) absent; or
5) the assessor has died.

An assessor may also request his or her own recusal based on reasons mentioned in (1) to
(3) above.

The presiding officer is obliged to give reasons for the order of recusal of the assessor and
may direct, in the interests of justice, that the proceedings continue before the remaining
members of the court; or that the proceedings start afresh; or where the assessor was
absent for any reason, postpone the proceedings to obtain the assessor's presence s
93ter(10) and (11) of Act 32 of 1944, as amended by Act 67 of 1998.
If assessors abscond during a trial without good reason and the magistrate continues with
the trial without them, this amounts to a fatal irregularity which vitiates the proceedings—
Mngeni 2001 (2) SACR 20 (E).

Assessors in the High Court

In the High Court, the presiding judge generally has a discretion whether or not to sit with
assessors. Where a judge is incapable of continuing with a trial, ordinarily the trial must start
de novo because some evidence need to be heard viva voce and not through the record of
the incapacitated judge.

In the High Court, an assessor will usually be a person who has experience in the
administration of justice (e.g., retired magistrates, attorneys or professors of law) or skill in
any matter which may be considered at the trial (e.g. accountant, medical doctor or
engineer, s 145(1)(b) of the Criminal Procedure Act.

An assessor appointed in terms of s 145 is a member of the court and participates in all
decisions of the court on questions of fact. Where the judge sits with two assessors, the
decision of the majority (on factual questions) constitutes the decision of the court. Where
the judge sits with only one assessor, then, in the event of a difference of opinion, the
decision of the judge prevails (s 145(4)). The judge decides matters of law.

An accused has a right to have his or her case considered by every member of the fact-
finding tribunal - Malindi 1990 (1) SA 962 (A) at 970G-H.

Section 147(1)(a) provides that if an assessor dies or becomes unable to act as assessor at
any time during a trial, the presiding judge may direct that the trial proceed before the
remaining member or members of the court or that the trial begin de novo.

Procedural safeguards exist to ensure that fairness is not compromised by continuation of a

trial with only one assessor Khumalo 2006 (1) SACR 447 (N).

The court has no power to dispense with the assessor's presence and proceed without him
or her; not even with the consent of the accused Daniels 1997 (2) SACR 531 (C).

Where a judge, acting in terms of s 147(1), finds an assessor has become unable to act as
such, it is incumbent upon him or her to hear the parties on the question of how the
proceedings will be conducted further (i.e. with one assessor or de novo). In general, the
parties are entitled to be heard before the judge comes to the decision that an assessor has
become unable to act Malindi; K 1997 (1) SACR 106 (C).

Before the trial commences, the assessors must take an oath that they will give a true
verdict, according to the evidence upon the issues to be tried. As soon as this oath has been
administered by the judge, the assessors are members of the court — s 145(3) and (4)—with
the following provisos:
1) Subject to paras (2) and (3) below and s 217(3)(b), the decision or finding of the majority
of the members of the court upon any question of fact, or upon the question referred to in
para (2), shall be the decision or finding of the court, except when the presiding judge sits
with only one assessor, in which case the decision or finding of the judge shall, in the case of
a difference of opinion, be the decision or finding of the court;
2) If the presiding judge is of the opinion that it would be in the interests of the
administration of justice that the assessor(s) assisting him or her do not take part in any
decision upon the question whether evidence of any confession or other statement made by
an accused is admissible as evidence against him or her, the judge alone shall decide upon
such question, and he or she may for this purpose sit alone.
3) The presiding judge alone shall decide upon any other question of law or upon any
question whether any matter constitutes a question of law or a question of fact and he or
she may for this purpose sit alone s 145(4). An application at the close of the State's case for
the accused's discharge in terms of s 174 is one of law, and the decision is that of the judge
alone—Magxwalisa 1984 (2) SA 314 (N);
(4) A judge presiding at a criminal trial in the High Court shall give the reasons for his or her
decision where he or she decides any question of law or whether any matter constitutes a
question of law or a question of fact. The judge shall also give the reasons for the decision or
finding of the court upon any question of fact or the question referred to in para (2) above,
whether he or she sits with or without assessors. Where the judge sits with assessors and
there is a difference of opinion upon any question of fact or upon the question referred to in
para (2), the judge shall give the reasons for the minority decision S 146.

As soon as an assessor receives information detrimental to the accused which has not been
proved in evidence, he or she must retire from the case—Matsego 1956 (3) SA 411 (A).

The function of assessors is limited to the hearing of the trial and as such the assessors have
no part with the judge in the assessment or the imposition of an appropriate sentence even
if it is not irregular for the judge to seek the advice of the assessors in the matter of
sentence and this is the normal practice Sparks 1972 (3) SA 396 (A) and Lekaoto 1978 (4) SA
684 (A); Malgas 1996 (1) SACR 73 (NC).

Recusal of judicial officers

No person who has an interest in or harbours any prejudice in respect of the matter to be
tried should adjudicate on such matter. Since the CPA does not contain any provisions on
the subject of recusal, the common-law rules and constitutional imperatives must be
applied in applications for the recusal of judges, magistrates or assessors.

The Code of Judicial Conduct for South African Judges, adopted in terms of section 12 of the
Judicial Service Commission Act, 1994 (published in GN 865, GG 35802 of 18 October 2012),
providing for ethical and professional standards required of every Judge, in article 13
thereof provides for the tests for the recusal of judges.

It provides that a judge must recuse him- or herself if there is a real or reasonably perceived
conflict of interest, or, there is a reasonable suspicion of bias based on objective facts. A
judge shall not recuse him- or herself on insubstantial grounds.

Application for recusal of judicial officer

Such application should, if possible, be made at the commencement of the trial in order to
obviate unnecessary complications, such as a discontinuation of a partly heard trial and the
necessity of starting it de novo. If unavoidable, such an application may be made in the
course of the trial—Silber 1952 (2) SA 475 (A). Such application must be made in respectful
and courteous terms and must not be wilfully insulting as the application in the case of
Silber was held to be.

The requirements of the test for the presence of judicial bias are:
1) There must be a suspicion that the judicial officer might be, not would be, biased;
2) The suspicion must be that of a reasonable person in the position of the accused;
3) The suspicion must be based on reasonable grounds;
4) The suspicion must be one which the reasonable person referred to would, not might,
have held.

The presiding judicial officer should have no communication whatever with either party
except in the presence of the other—Roberts 1999 (2) SACR 243 (SCA).

Any magistrate or judge who is aware that he or she has any feeling of partiality, enmity or
any motive which might actuate or be commonly supposed to actuate him or her in deciding
a matter, would mero motu recuse him- or herself and cause a substitute to try the matter.

Where a magistrate has in a previous capacity as a public prosecutor been concerned with
the merits of a case, such a magistrate should recuse himself, for, justice must not only in
fact be done but must also appear to be done. Cf Bailey 1962 (4) SA 514 (E); Anderson 1973
(2) SA 502 (0); Tampart 1990 (1) SACR 282 (SWA); Heita 1992 (2) SACR 285 (Nm).

The presiding officer should be an impartial, open-minded and uninformed adjudicator in

the sense of taking cognisance of only those facts about the case which are proven in court
in the usual way—Sibeko 1990 (1) SACR 206 (T).

The fact that in reality the judicial officer was impartial or is likely to be impartial is not the
test. It is the reasonable perception of the parties as to his or her impartiality that is
important Malindi 1990 (1) SA 962 (A) 969G—I; Council of Review, South African Defence
Force v Mönnig 1992 (3) SA 482 (A).

There is a presumption against the partiality of a judicial officer and an applicant who
alleges real bias or reasonable apprehension thereof has to establish it. Through cogent and
convincing evidence - 2007 (1) SACR 566 (CC).

The criterion for recusal is an objective one: whether the presiding officer's conduct leaves a
right-thinking observer or litigant with the impression that the accused did not receive a fair
trial Maseko 1990 (1) SACR 107 (A).

Impartiality and fairness

Impartiality denotes a state of mind in which the adjudicator is disinterested in the outcome
and is open to persuasion by the evidence and submissions—Le Grange 2009 (1) SACR 125
(SCA); Hlophe v Judicial Service Commission [2009] 4 All SA 67 (GSJ).
In Jacobs 1970 (2) PH H152 (C), two witnesses who had initially stated that they did not
know the accused, having been threatened by the magistrate with a whipping in the cells
unless they told the truth, then identified the accused. On the review it was held that the
procedure adopted constituted such a serious irregularity that a failure of justice per se had
resulted. Setting aside the conviction and sentence the judge said (at 291, emphasis added):
I think that it is hardly necessary for me to say that what happened in this case
constituted a very gross irregularity. While it is true that it is the function of a
criminal court to determine the guilt or innocence of the accused, it performs this
function in accordance with certain accepted norms of procedure. These involve,
inter alia, the concepts of fairness to the accused, courtesy to witnesses and an
adherence to certain civilised standards of behaviour.
It has never been recognised in the courts of this country that, because guilty
persons should be punished, any procedure, however unfair or unseemly, may be
employed if it helps to establish the guilt of the accused.

In Rall 1982 (1) SA 828 (A) the Supreme Court of Appeal stated some of the limitations
within which judicial questioning of witnesses should be confined. Cf also Omar 1982 (2) SA
357 (N) regarding unfair cross-examination of an accused and Zungu 1984 (1) SA 376 (N)
regarding doubts as to a presiding judicial officer's impartiality as a result of circumstances
arising after the conclusion of a trial and before its reopening. Witnesses and accused
persons should not be addressed by means of the impersonal terms 'witness' and 'accused',
but should be addressed by surname, eg 'Mr Gwebu'—Gwebu 1988 (4) SA 155 (W);
Abrahams 1989 (2) SA 668 (E); Gqulagha 1990 (1) SACR 101 (A); T 1990 (1) SACR 57 (T). It is
also disrespectful, if not degrading, to address an adult as a juvenile (in casu by addressing
him by his first name)—Kuse 1990 (1) SACR 191 (E).

Audi alteram partem

The principle of audi alteram partem should always be observed — Bidi 1969 (2) SA 55 (R);
Zuma [1996] 3 All SA 334 (N). Indeed, in terms of s 35(3)(i) of the Constitution every accused
has the right to adduce and challenge evidence.

Decisions solely upon evidence; the oath

Judicial officers must base their decisions solely upon evidence heard in open court in the
presence of the accused. A judicial officer should have no communication whatever with
either party in a case before him or her except in the presence of the other, and no
communication with any witness except in the presence of both parties—Maharaj 1960 (4)
SA 256 (N); Harricharan 1962 (3) SA 35 (N); Seedat 1971 (1) SA 789 (N).

Nor may a judicial officer take notice of documentary information (eg contained in the
police docket) which had not been tendered as evidence—Du Toit 1972 (1) PH HSO (E).
Evidence must be given upon oath or upon a solemn affirmation in lieu of an oath or upon a
serious admonition to speak the truth ss 162—4 of the CPA. In Matshivha 2014 (1) SACR
(SCA) 29 at [10] and [11] the court set out the material elements for admissibility of
evidence under ss 162, 163 and 164. It stated:
The reading of s 162(1) makes it clear that, with the exception of certain categories
of witnesses falling under either s 163 or s 164, it is peremptory for all witnesses in
 criminal trials to be examined under oath. And 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.

Although the inquiry under s 164(1) is primarily aimed at child witnesses, it is equally
applicable in respect of mentally ill witnesses S v SM 2018 (2) SACR 573 (SCA). Such a
witness must, instead of being sworn in or affirmed, be admonished by the judicial officer to
speak the truth.

The finding must be preceded by the 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 or she should establish whether the
witness can distinguish between truth and lies, and if the inquiry yields a positive outcome,
admonish the witness to speak the truth.

In T 1973 (3) SA 794 (A) the complainant was a five-year-old girl who did not know the
difference between the truth and untruth. Her evidence was inaudible except to her mother
who repeated it to the court. The mother was unsworn. On appeal the conviction was set
aside on account of such irregularity. The Constitutional Court in Director of Public
Prosecutions, Transvaal v Minister or Justice and Constitutional Development 2009 (2) SACR
130 (CC) held that the purpose of the oath is to ensure that the evidence given is reliable. To
admit evidence of a child who does not understand what it means to tell the truth
undermines the accused's right to a fair trial.

The presiding magistrate, judge or registrar shall administer the oath in respect of witnesses
s 162(1). The prosecutor may not do so—Bothma 1971 (1) SA 332 (C); cf s 112 of the
Magistrates' Courts Act. An interpreter, in the presence of the judge or magistrate, may
naturally also be used s 165. Witnesses must be allowed to give evidence in their own words
in their own way and at their own tempo.

Fairness to the accused

At the heart of the right to a fair criminal trial is the need for justice to be done and also to
be seen to be done—Dzukuda 2000 (2) SACR 443 (CC).

Where the accused is undefended the court should ensure that the accused is aware of his
or her rights at all times and is given every opportunity of conducting his or her defence
adequately; cf Nhantsi 1994 (1) SACR 26 (Tk). These rights have to be explained to the
accused by the presiding judicial official (not anyone else)—Mzo 1980 (1) SA 538 (C).

The accused's duties, such as the duty to discharge a particular onus in certain cases, should
be carefully explained to him or her —Sibisi 1972 (2) SA 446 (N). In certain circumstances
such an explanation should be given even before pleading Guess 1976 (1) PH H37 (C).

In accordance with the above principles, where a deaf person is unable to follow the
proceedings, a failure of justice will result Mbezi 2010 (2) SACR 169 (WCC).
The accused's 'right to silence' or the 'right not be questioned' has been qualified only by s
115 relating to the 'plea explanation' procedure. Such questioning by the presiding officer,
may take place only on arraignment and not during the course of the trial.

After an accused has been convicted, the court is entitled to know, and it is the duty of the
prosecution to inform it, of the previous convictions of the accused, in order to assist it in
assessing the proper punishment to impose on the accused.

During the trial all knowledge of previous convictions of the accused should be withheld
from the court, since such knowledge may influence the court to the prejudice of the
accused see s 211.

The prosecution is entitled only in exceptional circumstances to prove such previous

convictions before verdict, such as where the accused has attacked the character of a State
witness or has given evidence of his or her own good character s 197.

Open court
The best interest of a child offender is paramount and hence no person may be present at
any session of a child justice court unless his or her presence is necessary in connection with
the proceedings of that court, or the presiding officer has granted him or her permission to
be present s 63(5) of the Child Justice Act.

The identity of the child complainant is protected from disclosure by s 154(3). It is

incumbent on the courts never to reveal the identity of a child in criminal proceedings—
Masuku 2019 (1) SACR 276 (GJ) at [10].

Persons under the age of 18 are not entitled to attend any criminal trial unless they are
actually giving evidence in which case the court may be cleared of all members of the public,
unless a person is specially authorised to be present, or is the parent or guardian of a
witness ss 153(5) and 153(6) of the Criminal Procedure Act.

The court may order that a witness shall testify in camera if it appears to the court that
there is a likelihood that the witness may come to harm as a result of testifying s 153(2)(a)
and that nobody other than the person testifying, court personnel and any person
authorised by the court may be present at the proceedings. The court may also direct that
the identity of such a witness may not be revealed, or may not be revealed for a period of
time specified by the court s 153(2)(b).

Non-judicial officers of the court

The prosecutor and the legal representative of the accused (who may be an admitted
advocate or attorney), are officers of the court who are subject to certain ethical codes of
conduct. Attorneys who are allowed to practise as officers of the court have powers of
appearance in all lower courts, but not in the Constitutional Court or the High Courts, unless
their names appear in a register with the registrar of each High Court, certifying that they
are qualified to appear in a High Court and Constitutional Court.
Interpreters, who are sworn in before they may interpret for a witness in court, may
administer the oath or confirmation that every witness must take before they may testify (s
162).

If an interpreter who has not been appointed or sworn in as an interpreter acts as an

interpreter in court, the proceedings will be grossly irregular and void – Ndala 1996 (2) SACR
218 (C).

Other role-players are the following: the stenographer (who transcribes the evidence
mechanically), the judge’s registrar (judge’s clerk) and the court orderly (a police officer who
keeps the peace in court and carries out other administrative tasks).

In special cases where a witness under 18 years of age would be exposed to inordinate
mental suffering if made to confront the accused in court, an intermediary may be
appointed to serve as a conduit between the prosecutor’s interrogation or re-examination –
or the accused’s cross-examination – and the young witness (s 170A).

Only specific persons may act as intermediaries, e.g., medical practitioners, paediatricians,
psychologists and certain classes of social workers, educators and child welfare workers. All
questions must be put to the witness by the intermediary. The witness is not called into
court and gives testimony from a separate room linked to the court via live video feed.

Impartiality and fairness of presiding judicial officers

The impartiality and fairness of the presiding judicial officer and recusal are of particular
importance. The principle of justice applies to both parties and that the judicial officer must
endeavour to remedy deficiencies in either party’s case by making recommendations on
what evidence is lacking or by securing or calling for evidence on his own initiative.

The principle applicable is that “justice must be rooted in confidence, and confidence is
destroyed when right-minded people go away thinking: ‘The Judge was biased’” – Mayekiso
1996 (1) SACR 510 (C).

Public trial in an ordinary court

The basic features of an ordinary court of law are that the court must be independent and
impartial and that the court must be served by a presiding judicial officer within the legal
structures of the judicial authority, as provided for by the Constitution – Freedom of
Expression Ins v President, Ordinary Court Martial 1999 (1) SACR 353 (C) and the cases cited
there.

A public trial means that the public has access to and may attend it. An accused’s right to a
public trial is recognised in section 35(3)(c) of the Constitution but provision has been made
for members of the public to be excluded from a public trial in certain restricted
circumstances such as regards child offenders and witnesses who are tried or testify in
camera.

These exceptions to the general rule are discussed in the first part of chapter 15.
Section 335A of the Criminal Procedure Act prohibits the publication of the identity of
certain people. It provides as follows:
1) No person shall, with regard to any offence referred to in section 153(3)(a) and (b), as
from the date on which the offence in question was committed or allegedly committed, until
the prohibition in terms of section 154(2)(b) of the publication of information relating to the
charge in question commences, publish any information which might reveal the identity of
the person towards or in connection with whom the offence was committed
or allegedly committed, except with the authorization of a magistrate granted on
application in chambers, with due regard to the wishes of the person towards or in
connection with whom the offence was committed.
2) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence
and liable on conviction to a fine or to imprisonment for a period not exceeding three years
or to both such fine and such imprisonment if the person whose identity has been revealed is
over the age of 18 years, and if such person is under the age of 18 years, to a fine or to
imprisonment for a period not exceeding five years or to both such fine and such
imprisonment.

Witnesses
These play an important part in criminal trials because they assist the courts in arriving at
the truth. Provision has been made to secure the attendance of witnesses to testify at trials,
whether for the state or the defence or at the request of the court. The attendance of
witnesses may be secured in the following ways:
1) The witness may be summoned by subpoena to appear in court.
2) The witness may be warned by the police to appear in court (but if the witness ignores
the warning, there are no legal consequences, which there would be if a summons were
ignored).
3) The witness may be summonsed under the provisions of section 205, which are available
to the prosecutor or the DPP to compel a witness who does not want to make a witness
statement to come to court. In this way, a witness will be summonsed to appear before
a judge, magistrate or regional magistrate to testify before him.

If the witness is willing to make a statement, he is under no further obligation to appear

before the judicial officer. If the witness refuses to testify or to be sworn in, either in a court
or on a warning or before the judicial officer in terms of section 205, then the witness may
be dealt with as provided for in section 189.

It is assumed that a witness will sometimes have a valid excuse for not wanting to testify,
e.g., when answering a particular question will result in self-incrimination. Provision has
been made to enable such witnesses to rely on the above excuse to justify their refusal to
answer particular questions – section 203.

In S v Mamabolo ([Link] and others intervening) 2001 (1) SACR 686 (CC), the Constitutional
Court held that the summary procedure in terms of which a presiding officer is allowed to
summons a suspected scandaliser to answer a summary charge of contempt of court ex
facie curiae pertains to a witness becoming an accused person as contemplated in section
35(3) of the Constitution, and the procedure employed – in which the complainant,
prosecutor, witness and judge are amalgamated into one entity – is inquisitorial and
inherently punitive and unfair and not reconcilable with the standards of fairness called for
by section 35(3).

The procedure is also not condoned by section 36(1) of the Constitution. Will the same
reasoning apply in respect of the summary procedure provided for in section 189? In S v
Bekisi 1992 (1) SACR 39 (C), the court found that the expression “in a summary manner”,
provided for in section 189 does not mean that the proceedings are to be disposed of
immediately or hastily but only that it is not necessary for such a witness to be formally
charged.

In as much as the proceedings, though they do not strictu sensu constitute a trial, are still
judicial proceedings, the rules of natural justice are to be adhered to. The witness therefore
has the right to be granted reasonable opportunity to prepare for the proceedings. If the
court fails to grant such opportunity, the proceedings are invalid.

The witness is also entitled to legal representation, and failure to explain to the witness his
rights in this regard constitutes an irregularity that vitiates the proceedings. Should the
witness refuse or be unable to obtain legal representation, the court should explain to him
the import of the phrase “just excuse” and allow him the opportunity to address the court
or adduce evidence on the basis of the court’s explanation.

4) Witnesses in court are often warned by the presiding officer to appear in court on a
particular day. If a witness ignores this warning, he is in contempt of court.

Recalcitrant witness
A recalcitrant witness is one who refuses to take the oath or refuses to answer questions
and s 189 empowers the court to institute a summary enquiry, and if such a person does not
have a 'just excuse' for his or her refusal, he or she may be sentenced to a maximum
imprisonment of two years or, where the criminal proceedings relate to an offence referred
to in Part III of Schedule 2, to imprisonment for a maximum of five years.

The following requirements have to be met before a witness may be sentenced to

imprisonment for refusing to take the oath as a witness or, having taken the oath, for
refusing to answer questions put to him or her:
1) the witness must have refused to take the oath or to testify;
2) a proper enquiry must have been held into the refusal; and
3) there must have been no just excuse for his or her failure or refusal—Seals 1990 (1)
SACR 38 (C).

In Attorney General, Transvaal v Kader 1991 (2) SACR 669 (A) it was held that it is sufficient
justification if a witness were to find himself in circumstances in which it would be humanly
intolerable to have to testify.

While section 189 proceedings are not trials but they are still judicial proceedings and the
rules of justice must be complied with. The witness has a right to:
1) a fair opportunity to prepare for the proceedings; and
2) legal representation.
Principles underlying the postponement of a trial
The trial of an accused does not usually commence at his first appearance in court. The case
against the accused is first investigated by the police: it may even be necessary to continue
with the investigation after the accused has been in court several times and in this case, the
prosecutor will ask the court to postpone the case for further investigation.

Not all postponements are granted at the request of the prosecutor as sometimes the
accused or legal representative may request that the court postpone the case to enable him
to prepare for the trial. According to section 168, it is within the discretion of the court to
grant a postponement. This discretion must be exercised judicially.

The interests that the court must weigh up against each other in considering an application
for postponement are:
1) the right of the accused to a speedy trial and
2) the interests of the community to have offenders found guilty and convicted.

Adjournment or postponement
A postponement refers to the period before the hearing starts, whereas an adjournment
usually refers to a hearing that is already underway.

An adjournment is the re-scheduling of court proceedings, be it arraignment, enquiry, plea,

trial, sentencing, or otherwise. The granting of an adjournment is at the discretion of the
presiding judge or magistrate and if necessary, a court may adjourn or postpone a case till a
later date ss 168 and 169.

When the court considers an application for postponement, whether it be requested by the
State or the defence, the following two basic principles have to be considered:
1) It is in the interest of society that guilty persons should be duly convicted and not
discharged due to an error which could have been avoided had the case been
adjourned; and
2) An accused is deemed to be innocent and therefore has a right to a speedy hearing.

A court of appeal will not interfere with a lower court's decision to adjourn a case, provided
the discretion to do so was exercised judicially (ie without caprice, bias or the application of
wrong principles, but on judicial grounds and for sound reasons) Zackey 1945 AD 505;
Zimba 1975 (2) PH H122 (N).

Where a magistrate refused to adjourn a case to afford an accused the opportunity to find
witnesses, the case was remitted for retrial - Levin v Whitelaw NO 1928 TPD 357. If a refusal
to adjourn results in the exclusion of relevant evidence, the conviction will be set aside
Hatch 1914 CPD 68. Refusal of a reasonable and bona fide request for adjournment
constitutes an irregularity rendering a trial unfair Saule 2009 (1) SACR 196 (Ck).

When the accused's legal representative is absent and it is not due to the fault of the
accused, the case must be adjourned or a subsequent conviction will be set aside Seheri
1964 (1) SA 29 (A).
Speedy trial
The objectives inherent in the principle of a speedy trial are to prevent prolonged pre-trial
detention in a prison, to limit the accused’s fears and tension, and to set limits on the
possibility of the defence’s being disadvantaged by unreasonable delays.

Section 342A authorises the court to investigate unreasonable delays by the state or the
accused and his defence, and it may even authorise a permanent cessation (stay) of further
proceedings against the accused.

The concept of a fair trial includes the right of every accused person to have his or her trial
commence and conclude without unreasonable delay s 35(3)(d) of the Constitution.

Three forms of prejudice that an accused can potentially suffer for want of a speedy trial:
1) the loss of personal liberty resulting from detention or restrictive bail conditions;
2) the impairment of personal security resulting from loss of reputation, social ostracism or
loss of income or employment; and
3) trial-related prejudice such as the memories of witnesses fading or the witnesses
themselves becoming unavailable—Jackson 2008 (2) SACR 274 (C).

Unreasonable delays in the hearing of criminal trials, furthermore, are not only prejudicial to
the accused, but bring the whole criminal justice system into disrepute—Sochop 2008 (1)
SACR 552 (C).

Section 342A(3) provides for the possible findings a court is entitled to make, should it find
that the trial was unreasonably delayed. Once the provisions of s 342A are invoked, the
following three stages must be followed:
1) investigation of the cause of the delay in the finalisation of the case, taking into account
the listed factors;
2) making of a finding as to whether the delay is reasonable or unreasonable;
3) depending on the stage of the proceedings, the application of the appropriate remedy
provided—Ndibe [2012] ZAWCHC 245.

The appropriate remedy for an infringement of the right to a speedy trial, such as a
permanent stay of prosecution, is to be determined in the light of the circumstances of each
particular case Wild v Homert 1998 (2) SACR 1 (CC).
Unit 8: The conduct of the trial
Joinder and separation of trials
The state is dominus litis and is in control of the prosecution, which means that the state
decides whether several accused should be tried together in the same trial or they should be
tried separately.

After the state has decided to charge several accused together, in certain circumstances an
accused may request that his trial be separated from the rest. The court may also order such a
separation on its own account (mero motu). In terms of the Criminal Procedure Act, joinder of
any other accused is possible any time before evidence is led.

Trial principles
Section 35(3)(h) od the Constitution addresses the accused’s right to be presumed innocent, to
remain silent and not to testify during the proceedings, while section 35(3)(i) addresses the
accused’s right to adduce and challenge evidence. Section 35(3)(j) addresses the accused’s right
not to be compelled to give self-incriminating evidence.

After the plea of the accused has been entered, the trial continues. The state first presents its
case to the court and tries to prove the guilt of the accused by leading evidence and cross-
examination of state witnesses by the accused or his legal representative.

After this, the state closes its case and the accused may ask for an acquittal, failing which the
defence has the opportunity to present its case to the court by following essentially the same
procedure as the state.

The court itself can also call one or more witnesses, taking into account certain principles. The
prosecutor and the defence may then address the court on the merits (facts and law) of the
case.

Acquittal at the end of the state’s case

E.g., X is charged with an offence. After the state has called various witnesses, who contradict
one another in their evidence-in-chief and make further contradictions in the cross-examination
by the accused, the prosecutor closes his case. What must the court do at this stage?

On the basis of the credibility of the state’s witnesses, it appears that there is no evidence on
which a reasonable person could convict X. What does “no evidence” mean? What are the
relevant legal principles in this regard?

When the state has concluded its case, the possibility of acquittal must be considered. The court
must also consider the possibility of acquittal mero motu, if it is not requested by the defence.
The reason for this is that the accused has the right to be deemed innocent until he is found
guilty, and if the credibility of the state’s witnesses is so poor that no reasonable person would
accept it, then the possibility of acquittal at the end of the state’s case must be considered.

In view of this constitutional right to be deemed innocent until proven guilty, it is held that
where there is no evidence on which a reasonable person would have found the accused guilty,
and the accused is nonetheless required to stand trial, this would be a gross violation of this
right because he might incriminate himself during the trial.
Joint accused
When there is a joint trial, the accused are identified numerically: accused one, two and three.
The prosecution decides who should be accused one or two or three, as the case may be. It is
the duty of the court to ensure that the correct numerical order is maintained during the course
of the trial (Chauke 2010 (1) SACR 287 (GSJ)).

Adults and children as co-accused: the provisions of s 63(2) of the Child Justice Act 75 of 2008
The section provides that where an adult and a child are charged together in the same trial in
respect of the same set of facts in terms of ss 155, 156 and 157 of Act 51 of 1977, a court must
apply the provisions of the Child Justice Act in respect of the child and the provisions of Act 51
of 1977 in respect of the adult.

The advantages of a joint trial are obvious: time and costs are saved. A single prosecution of
several accused in a joint trial ensures that prosecution witnesses only testify once and that only
one court is occupied for the purpose of trying several co-accused. A joint trial is at times also to
the tactical advantage of the prosecution if the co-accused blame each other.

It may be clear before the trial that accused number one, should he or she elect to testify, will
incriminate accused number two, who will, should he or she also elect to testify in his or her
own defence, incriminate accused number one.

Where co-accused blame each other it will often be in the interests of justice to have a joint
trial, which enables the court to hear all the evidence and to be in a good position to determine
the various degrees of guilt.

In Solomon 1934 CPD 194, it was pointed out that in the event of separate trials it becomes very
easy for each accused to put the blame on the absent accused.

It is generally accepted that persons charged with the same count should in the best interests of
the administration of justice be joined as co-accused in one trial (Bagas 1952 (1) SA 437 (A)). The
prosecution as dominus litis should in principle also not be hampered in the manner in which it
wishes to proceed with the prosecution (Kritzinger 1952 (4) SA 651 (W)).

Any application for separation must be assessed with these considerations in mind but all the
valid considerations which support a joint trial must of necessity also be balanced against the
common-law and constitutional right of an accused to have a fair trial as envisaged in s 35(3) of
the Constitution. A co-accused can apply for a separation of trials (s 157(2)).

In Ramgobin 1986 (1) SA 68 (N) at 80C it was said that it is not the joinder of charges as such
that is objectionable, but the joinder of accused in respect not only of different charges, but also
of widely different periods of time and places of commission of these alleged crimes.

Sections 155 and 156 must also be applied to avoid the following type of prejudice to an
accused (as per BliedenJ in Naidoo 2009 (2) SACR 674 (GSJ)):
An accused could spend weeks in court while evidence affecting his or her co-accused
was dealt with, which had nothing whatsoever to do with the objecting accused and the
charges faced by him or her, merely because on other counts he was charged with an
 offence in which his co-accused was connected. This the Criminal Procedure Act does
not permit.

Joinder of persons implicated in the same offence: section 155 of the act
S 155(1) provides as follows:
Any number of participants in the same offence may be tried together and any number of
accessories after the same fact may be tried together or any number of participants in the same
offence and any number of accessories after that fact may be tried together, and each such
participant and each such accessory may be charged at such trial with the relevant substantive
offence alleged against him.

Joinder is permissive and not imperative; and non-joinder can hardly ever lead to an unfair trial.
In Xolo v Attorney-General of the Transvaal 1952 (3) SA 764 (W) at 770F-H it was said:
I fully appreciate that it is possible that separate trials may redound to the disadvantage
of the accused both financially and in the sense that they may be exposed to a greater
danger of conviction in the second trial; I can, however, see no danger to them of their
being prejudiced by any unfairness creeping into their trials as a result of separate trials.

The prosecution's decision not to join A as a co-accused in the trial of B in circumstances where
A may be suspected of involvement in the same offence with which B is charged (or a similar
offence) does not infringe any established criminal procedural rule and cannot on its own
constitute a failure of justice rendering the trial unfair—Shaik 2008 (1) SACR 1 (CC).

In this case the Constitutional Court also observed as follows:

'The fact that there might often be cogent reasons for the holding of joint trials, does not mean
that a specific trial would be unfair because other possible perpetrators are not charged with an
accused. The ultimate question is whether a particular trial was unfair...'

It was also concluded that whilst a non-joinder might disadvantage an accused, such non-joinder
does not necessarily render the trial unfair.

The word 'participants' as used in s 155(1) must be interpreted with reference to substantive
criminal law principles governing the classification of people involved in the same offence. A
participant is a 'perpetrator' or an 'accomplice'.

A a perpetrator (or co-perpetrator) satisfies all the essential requirements for liability as set out
in the definition of the crime whereas an accomplice 'does not satisfy all the requirements for
liability in the definition of the crime but nevertheless unlawfully and intentionally furthers its
commission by somebody else'—Snyman Criminal Law 5 ed (2008) 258.

Section 155(1) caters separately for the joining of an accessory after the fact which is necessary
because an accessory after the fact is not a participant and is therefore neither a perpetrator
nor an accomplice. Snyman Criminal Law 5 ed (2008) 278 states that a person 'is an accessory
after the fact to the commission of a crime if, after completion of a crime, he unlawfully and
intentionally engages in conduct intended to enable the perpetrator of, or the accomplice in,
the crime to evade liability for his crime, or to facilitate such a person's evasion of liability'.
If D had met up with A and B after B and D had murdered the deceased and then helped A and B
to conceal the body, D could be joined as accused four in the trial of A, B and C on account of
the provisions of s 155(1). This section requires that in such an instance D must in the joint trial
be charged with the substantive offence of accessory after the fact.

If a person is charged as a participant (perpetrator or accomplice) and the court finds that he or
she was only an accessory after the fact, he or she may in terms of s 257 be convicted as an
accessory after the fact. A finding of this nature is referred to as a 'competent verdict'.

The provisions of s 155(2)

In terms of s 155(2), a receiver of property obtained by means of an offence shall for purposes
of s 155 'be deemed to be a participant in the offence in question'.

Persons committing separate offences at same time and place may be tried together: section
156 of the act
Section 156 provides as follows:
Any number of persons charged in respect of separate offences committed at the same place
and at the same time or at about the same time, may be charged and tried together in respect
of such offences if the prosecutor informs the court that evidence admissible at the trial of one of
such persons will, in his opinion, also be admissible as evidence at the trial of any other such
person or such persons.

Section 156 seeks to avoid successive trials involving different accused but based essentially on
the same evidence on behalf of the prosecution. Maringa 2015 (2) SACR 629 (SCA) at [14].
Section 156 supplements s 155 by providing for joinder quite apart from the criteria of
'participants' and 'same offence'.

Section 156 comes into consideration upon the initiative of the prosecutor: where the
prosecutor informs the court that evidence admissible at the trial of one accused will, in his or
her opinion, be admissible at the trial of the other accused (Makganje 1993 (2) SACR 621 (B)).

The separate offences must have been committed at the same place and at the same time
or about the same time (Ramgobin 1986 (1) SA 68 (N)). In Naidoo 2009 (2) SACR 674 (GSJ) it
was said that joinder is impermissible and irregular 'where there is no connection, either in
time, space or fact, between the charges' levelled at the different accused in the same trial
(at [11]).

In this case the court was satisfied that according to the prosecution's allegations the
various accused had all, in different capacities, been involved in an unlawful enterprise in
contravention of s 2(1) of the Prevention of Organised Crime Act 121 of 1998. It was held
that there was no misjoinder. None of the accused would have been exposed to evidence
irrelevant to the case he had to meet.

Van Wyk 1994 (1) SACR 183 (NC) provides an example where the facts of the case were too
tenuous to establish the required connection in time and space, so as to justify joinder as
seven accused were charged with the theft of varying numbers of sheep from the same
farm. No evidence was led as to the size of the farm or on which parts of the farm the thefts
had been committed; and the prosecution alleged that the sheep had been stolen over a
period of 15 months. These circumstances meant that there was an irregular joinder in that
the various offences had not been committed at the same place and time, or about the
same time.

Stage at which an accused can be joined with any other accused: section 157(1) of the Act
Joinder of accused in the same criminal proceedings may take place 'at any time before any
evidence has been led in respect of the charge in question' (s 157(1)). The responses of an
accused to the court's questioning in terms of s 112(1)(b) to test the validity of his or her
plea of guilty do not constitute 'evidence' for purposes of s 157(1) Slabbert 1985 (4) SA 348
(C); and the same applies to the situation where an earlier accused has pleaded not guilty
and given an explanation of plea in terms of s 115—Ngobeni 1981 (1) SA 506 (B).

In both these instances joinder would still be possible but the complete record up to that
stage should be read to the accused so joined before they are required to plead Ngobeni
511G—511D. The earlier accused should then also be present when plea proceedings
commence in respect of the accused persons who have been joined.

An accused may not be added to proceedings where an inspection in loco has already been
held as an inspection in loco means that real evidence is being received. (Dippenaar 1990 (1)
SACR 208 (T)).

Separation of trials: section 157(2) of the act

Section 157(2) provides as follows:
Where two or more persons are charged jointly, whether with the same offence or with the
different offences, the court may at any time during the trial, upon the application of the
prosecutor or of any of the accused, direct that the trial of any one or more of the accused
shall be held separately from the trial of the other accused, and the court may abstain from
giving judgment in respect of any of such accused.

A refusal to grant separation is interlocutory (Libaya 1965 (4) SA 249 (O)) meaning that in
the course of the trial the matter of separation can be raised again for fresh consideration
by the trial court, should there be new facts.

Court's power to raise the matter of separation

The court may mero motu order separation to avoid prejudice Ndwandane 1970 (4) SA 502
(N). The court might indeed be required to take the initiative where the accused has no legal
representative.

Test to be applied
The decision whether there ought to be a separation is in the discretion of the presiding
judicial officer (Tshamano 1998 (1) SACR 359 (V)). This discretion must be exercised in a
judicial manner: not arbitrarily but with due regard to all relevant considerations and factors
(Bagas 1952 (1) SA 437 (A)) as well as the interests of justice, which encompass the interests
of the individual accused as weighed against the interests of society (Shuma 1994 (2) SACR
486 (E)).
The prejudice likely to be caused to the applicant in the absence of separation should be
assessed against the prejudice likely to be suffered by the other accused or the prosecution
should separation be ordered (Somciza 1990 (1) SA 361 (A) at 376E—F).

The applicant must show that there is a probability and not a mere possibility that a joint
trial will result in prejudice which would render his or her trial unfair (Nzuza 1952 (4) SA 376
(A); Shuma (above)). Prejudice is not presumed (Bagas (above) 441).

A court of appeal will only interfere if satisfied that the trial court's exercise of its discretion
amounted to such a gross misdirection that it resulted in a failure of justice which deprived
the appellant of his or her right to a fair trial.

Where some accused plead guilty and others not guilty, it has become standard practice to
order separation and complete the trial of those who have pleaded guilty. Witbooi 1994 (1)
SACR 44 (Ck). In such an instance there is no need for a joint trial, as those accused who
pleaded guilty are on the merits of the case in agreement with the prosecution (Zonele 1959
(3) SA 319 (A)) and, once convicted, can be available as prosecution or even defence
witnesses in the trial of those who had pleaded not guilty.

In Zonele, it was confirmed that where in a joint trial A pleads guilty and B not guilty and B
needs A as a defence witness, their trials should be separated because A cannot be
compelled to testify as long as he or she happens to be a co-accused.

In Witbooi 1994 (1) SACR 44 (Ck) A had pleaded guilty and B and C not guilty. The trial court
had questioned A in terms of s 112(1)(b). In his responses A incriminated himself as well as B
and C. A was convicted and the joint trial proceeded, resulting in the conviction of B and C
as well.

On review it was held that non-separation caused prejudice to B and C and that the
prejudice was such that it caused a failure of justice. There is no failure of justice when
separation is refused where one accused's plea of not guilty is followed by an explanation of
plea in terms of s 115 in which he or she incriminates his or her co-accused.

Consequences of a successful separation

In the event of a successful application for separation, the case proceeds against the
remaining accused; and where all the accused have applied for a separation, it is for the
prosecution to decide against whom it wishes to proceed forthwith.

The court abstains from giving a verdict (s 157(2)) and a successful applicant cannot at his or
her later trial which must start de novo rely on a plea of prior acquittal as provided for in s
106(1)(d).

A court that has granted a separation of trials has no power to determine the sequence in
which the trials ought to take place (Matsinya 1945 AD 802). The court may, at most,
suggest that a particular sequence would best serve the interests of justice. The prosecution
is entitled to proceed on different or new charges against those accused who were
separated from the trial (Shongwa 1955 (2) SA 100 (O)).
The 'course of the criminal trial' refers to all the procedures which must be followed from
the time an accused has pleaded until verdict on the merits and, if the accused is convicted,
the determination of an appropriate punishment is imposed by the trial court.

A criminal trial can be described as a state-sponsored public judicial and primarily oral
hearing in terms of which the alleged criminal liability of an accused must in the public
interest be determined by an impartial adjudicator on the basis of constitutional, statutory
and common-law rules and principles of fairness which promote reliable and acceptable
outcomes in convicting and punishing the guilty, while protecting the innocent from
incorrect conviction and wrongful punishment.

The process must of necessity be regulated by detailed and very technical rules. These
detailed rules must always be interpreted and applied in the context of at least seven
fundamental principles of trial fairness; legality; judicial impartiality; equality of arms;
judicial control; orality and finality.

1) The fair trial principle

An accused's right to a fair trial under s 35(3) of the Constitution 'embraces a concept of
substantive fairness which is not to be equated with what might have passed muster in our
criminal courts before the Constitution come into force' (Zuma 1995 (1) SACR 568 (CC)). The
right to a fair trial embraces more than what is contained in the list of specific rights
identified in s 35(3)(a) (o) of the Constitution (Veldman v Director of Public Prosecutions,
VVLD 2006 (2) SACR 319 (CC) at [22]—[23]).

The s 35(3) rights which surface most pertinently in the course of the trial are the right to be
presumed innocent (s 35(3)(h)); the right to adduce and challenge evidence (s 35(3)(i)); and
the right not to testify during the proceedings (s 35(3)h)).

The words 'which include the right' indicate that such specification is not exhaustive of what
the right to a fair trial comprises' (Dzukuda 2000 (2) SACR 443 (CC) at [9]). At [11] the
Constitutional Court also said (per Ackermann J):
It would be imprudent, even if it were possible, in a particular case concerning the
right to a fair trial, to attempt a comprehensive exposition thereof. In what follows,
no more is intended to be said about this particular right than is necessary to decide
the case at hand. At the heart of the right to a fair criminal trial and what infuses its
purpose, is for justice to be done and also to be seen to be done. But the concept of
justice itself is a broad and protean concept. In 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. An important
aim of the right to a fair criminal trial is to ensure adequately that innocent people
are not wrongly convicted, because of the adverse effects which a wrong conviction
has on the liberty, and dignity (and possibly other) interests of the accused. There
are, however, other elements of the right to a fair trial such as, for example, the
presumption of innocence, the right to free legal representation in given
circumstances, a trial in public which is not unreasonably delayed, which cannot be
 explained exclusively on the basis of averting a wrong conviction, but which arise
primarily from considerations of dignity and equality.

No-one may be convicted without a fair trial (Baloyi 2000 (1) SACR 81 (CC) at [27]). In Kruse
2018 (2) SACR 644 (WCC) the trial was held unfair because the trial court had failed to take
adequate steps to ensure that the accused—who had impaired hearing and speech could
follow the proceedings and communicate effectively (at [4] [5]). The fair trial principle also
requires fair appeal processes (Ngobeni [2018] ZASCA 127 (unreported, SCA case no
1041/2017, 27 September 2018) at [30]).

It has also been held that 'the right to a fair trial in terms of s 35(3) of the Constitution
includes the right to a prosecutor that acts and is perceived to act without fear, favour or
prejudice' (Bonugli v Deputy National Director of Public Prosecutions 2010 (2) SACR 134 (T)
at 143/1-i).

Trial fairness extends to society as a whole because society has a real interest in the
outcome of a case (Sonday 1995 (1) SA 497 (C) 507). All the judicial duties that have to be
performed in respect of an unrepresented accused in order to ensure a fair trial were set
out and confirmed in Mofokeng 2013 (1) SACR 143 (FB).

But the Supreme Court of Appeal has warned that a trial court should not give assistance to
an accused to the point of unfairly disadvantaging the prosecution - Brown 2015 (1) SACR
211 (SCA).

The right to a fair trial demands that there should be informed participation by the
unrepresented accused. A court is required to explain all procedural rights and options to an
unrepresented accused and to do so at every critical stage = Ramulifho 2013 (1) SACR 388
(SCA) and the fact that the accused's rights have been explained should be properly
recorded—Motaung 1980 (4) SA 131 (T).

2) The principle of legality

The prosecution must prove legal guilt in a properly conducted trial in accordance with the
principle of legality: in a trial where all relevant common-law, statutory and constitutional
due process rules were followed. Factual guilt, ascertained at the expense of a fundamental
right of the accused, falls short of the standard set by the principle of legality.

Legal guilt is absent where the conviction rests on facts obtained in breach of the accused's
privilege against self-incrimination (Lwane 1966 (2) SA 433 (A)) or the accused's right to
consult confidentially with his or her legal representative (Mushimba 1977 (2) SA 829 (A)).

3) The principle of judicial impartiality

In our adversarial trial system, the presiding judicial officer is in principle a passive umpire
who should not descend into the arena where the dust of the conflict might cloud his or her
judicial vision (Sussex Justices (1924) KB 256 259; Rall 1982 (1) SA 828 (A); Mseleku 2006 (2)
SACR 237 (N)).
The role of the judicial officer was described as follows by Stewart AJ in Nnasolu 2010 (1)
SACR 561 (KZP) at [38]:
The presiding officer should not enter the arena. He or she is entitled and often
obliged in the interests of justice to put such additional questions to witnesses,
including the accused, as seem to him or her desirable in order to elicit or elucidate
the truth more fully in respect of relevant aspects of the case. The presiding officer
should not only ensure that justice is done, he or she should also ensure that justice
is seen to be done.
The trial should therefore be conducted in such a way that the open-mindedness,
impartiality and fairness of the judicial officer are manifest to all those who are
concerned in the trial and its outcome, especially the accused. The presiding officer
should refrain from indulging in questioning witnesses or the accused in such a way
or to such an extent that it may preclude him or her from detachedly or objectively
appreciating and adjudicating upon the issues being fought out before him or her.
The presiding officer should refrain from questioning a witness or the accused in a
way that may intimidate or disconcert him or her or unduly influence the quality or
nature of the replies and thus affect his or her demeanour or impair his or her
credibility.

Cross-examination of an accused by a presiding judicial officer can 'only lead to the

administration of justice falling into disrepute and a perception of bias on the part of the
presiding officer'—Du Plessis 2012 (2) SACR 247 (GSJ) at [25].

A party who is aggrieved by the manner in which a presiding judicial officer conducts a trial
can bring an application for the recusal of such officer. The right of the parties to call
witnesses in support of their respective cases and to cross-examine an opponent's witness
explains why the adversarial system can afford and maintain the relative inactivity of the
presiding judicial officer in the course of the trial but due notice should be taken of these
statutory provisions:
Section 167 of the Act (power of court to examine witness or person in attendance) which
provides as follows:
The court may at any stage of criminal proceedings examine any person, other than an
accused, who has been subpoenaed to attend such proceedings or who is in attendance at
such proceedings, and may recall and re-examine any person, including an accused already
examined at the proceedings, and the court shall examine, or recall and re-examine, the
person concerned if his evidence appears to the court essential to the just decision of the
case.

This statutory power to question a witness introduces an inquisitorial element but does not
empower the court to cross-examine the witness concerned - Qhayiso 2017 (1) SACR 470
(ECB). The purpose of the court's questions should be to elucidate obscure points or clear up
ambiguities. The prosecutor and defence may put questions arising from the questioning by
the court. The court should, if at all possible, only put its questions once the parties have
completed their questioning of the witness (Mseleku 2006 (2) SACR 237 (N) at [10] [13]).
Section 167 does not entitle the court to take over the prosecutor's role (Mosoinyane 1998
(1) SACR 583 (T)).
The inexperience of the prosecutor and police may call for and justify a more active
approach in order to ensure that justice is done between the parties (Van den Berg 1996 (1)
SACR 19 (Nm); Ncgobo 1993 (3) BCLR 298 (N); Mseleku, above).

Section 186 of the Act (court may subpoena witness) which provides as follows:
The court may at any stage of criminal proceedings subpoena or cause to be subpoenaed
any person as a witness at such proceedings, and the court shall so subpoena a witness or so
cause a witness to be subpoenaed if the evidence of such witness appears to the court
essential to the just decision of the case.

Section 186 can be invoked 'at any stage' of the proceedings—even after the parties have
delivered their final arguments on the merits (Karolia 2006 (2) SACR 75 (SCA)). The court
may also rely on s 186 in order to recall an accused who has elected to testify in his or her
own defence (Naran 1954 (1) SA 509 (SR)). The views of the prosecution and the defence
should always be established before a court decides to call a witness.

A party adversely affected by the evidence of a witness called by the court in terms of s 186
should be given an opportunity to rebut this evidence, and any party desiring to cross-
examine such a witness should normally be allowed to do so (Lubbe 1966 (2) SA 70 (0); Chili
1917 TPD 61)).

Section 186 introduces an inquisitorial element and essentially caters for two situations: the
court's discretion to call a witness and the court's duty to do so.

The first part of s 186 creates a discretion (the court 'may') to be exercised judicially. It is an
improper exercise of the court's discretion to call a witness where no evidence was led by
the State and the defence and where the accused—but for the evidence of the court's
witness—was entitled to an acquittal (Kwinika 1989 (1) SA 896 (W)). The discretionary
power allows a court to call a witness who is useful but not essential (Majosi 1956 (1) SA
167 (N)).

The second part of s 186 (the court 'shall') places a duty on the court to call a witness if it is
essential to the just decision of the case - Helm 2015 (1) SACR 550 (WCC). It is for the court
to decide whether the evidence is essential (Hepworth 1928 AD 265).

In Steward 2017 (1) SACR 156 (NCK) the court of appeal observed that the trial court should
have called the investigating officer as a witness in order 'to clear up' whether the accused's
alibi was ever investigated (at [61]):
'The evidence may have persuaded the magistrate to acquit the appellant or may have
strengthened the trial court's hand in convicting him.' The inexperience of the prosecutor or
the accused's legal representative can create the necessity for the court to call the witness
to ensure that justice is done.

Section 63(4) of the Child Justice Act 75 of 2008

In terms of section 63(4) of the Child Justice Act, a child justice court must ensure that the
best interests of the child are upheld, and to this end
a) may elicit additional information from any person involved in the proceedings; and
b) must, during all stages of the trial, especially during cross-examination of a child, ensure
that the proceedings are fair and not unduly hostile and are appropriate to the age and
understanding of the child.

4) The principle of equality of arms

The South African criminal trial system being accusatorial (adversarial) in nature, it is based
on the premise that truth-finding is enhanced if the prosecution and defence are
responsible for presenting their respective cases.

But this approach is only valid if the prosecution and defence have equal opportunities and
in this context the so-called 'principle of equality of arms' developed. Silver 1990 Wisconsin
Law Review 1007 1037 explains as follows:
[T]o ensure that the adversarial process achieves its end, the optimisation of the search for
truth... [a court] must formally recognise a new right designed to restore and protect the
delicate balance of power between the prosecution and defence [T]he adversarial process
functions effectively only when opposing counsel can fashion and present their strongest
case from positions of relative equality. This equality, as significant as the other protections
underlying the adversarial process in ascribing meaning to the nebulous guarantee of due
process, must be extended formal protection.

In terms of the principle of equality of arms in the context of the course of the trial, it is for
example irregular to deny a party the opportunity to cross-examine the opponent's witness
(Mgudu 2008 (1) SACR 71 (N); Nnasolu 2010 (1) SACR 561 (KZP)). In Msimango 2010 (1)
SACR 544 (GSJ) it was pointed out that s 166(1) of the Act vests reciprocal rights in both the
accused and the prosecution to cross-examine opposing witnesses, and to re-examine their
own witnesses. At [4] it was also said that '[s]imilarly, the right to cross-examine a co-
accused or witness called by such co-accused is also extended to both an accused and the
prosecution'.

There must also be equal opportunities in addressing the court on the merits and on the
question of an appropriate sentence. Equality of arms also requires that an accused should
in principle have legal representation in order to be on a par with the State, which employs
a prosecutor - Legal Aid Board 2011 (1) SACR 166 SCA at [1].

Equality of arms is difficult to maintain and enforce at the pre-trial investigative stage. The
evidence-gathering process is loaded against the individual (suspect, accused) simply
because of the state's vast financial and human resources that it can harness to investigate
alleged criminal conduct. It is precisely because of this pre-trial imbalance that the principle
of equality of arms must at trial level be enforced with great care and vigour. In Lavhengwa
1996 (2) SACR 453 (W) Claassen J said (at 477) 478b):
A fair trial envisages equality of arms. A fair trial embraces equality before the law
between litigants in a criminal trial. Although inequalities between accused persons are
inherent in any criminal justice system inequalities between opposing litigants in a
criminal trial is contrary to the principle of a fair trial.

5) The principle of judicial control

In Legote 2001 (2) SACR 179 (SCA) Harms JA emphasised the principle that a criminal court
must without sacrificing its impartiality control and manage proceedings within the bounds
of the law of criminal procedure (at 184d—e). Also Malisa 2015 (2) SACR 202 (SCA) at [18].

Several statutory and common-law rules confirm this principle. To this end the court should,
whenever necessary, issue orders that the prosecutor, defence lawyer, accused persons,
court staff, witnesses and members of the public in attendance must obey. For present
purposes, the following eight examples of judicial control and management will suffice:
a) One of the purposes of the crime of contempt of court in facie curiae (contempt in the
presence of the court whilst sitting) is to strengthen the hands of the judge or magistrate
to control and manage proceedings in an orderly fashion. Thus, a legal representative
who persists in shouting at a witness in the course of cross-examination commits
contempt of court (Benson 1914 AD 357); as does someone who grabs and tears up a
court document (Mongwe 1974 (3) SA 326 (T)). Section 108 of the Magistrates' Courts
Act 32 of 1944 lists three categories of contempt in facie: deliberate insults, deliberate
interruptions and misbehaviour of some other kind.
b) A presiding judicial officer may order the arrest of someone who commits an offence in
the presence of the court s 178(1).
c) If any person, other than an accused, who is present at criminal proceedings, disturbs
the peace or order of the court, the court may order that such person be removed from
the court and detained until the rising of the court s 178(2).
d) If an accused behaves in a manner which makes the continuance of the proceedings in
his or her presence impracticable, the court may direct that the accused be removed
and that the proceedings continue in his or her absence s 159(1).
e) A court may, in circumstances as provided for in ss 168 and 169, adjourn proceedings to
any date and place. The court, however, should take care to ensure that neither the
prosecution nor the accused be permitted to abuse the process of postponements. See
Steward 2017 (1) SACR 156 (NCK) at [6]. The court should not tolerate delaying tactics.
f) A court has a common-law power to intervene where questioning of witnesses goes
beyond acceptable limits or introduces irrelevancies. Vexatious, abusive and
discourteous cross-examination must, for example, be disallowed (Manqaba 2005 (2)
SACR 489 (W)). In M 1999 (1) SACR 664 (C) 673f-i it was held that irrelevant questions
offending the dignity of the complainant should not be allowed.
g) In certain circumstances a criminal court has the statutory right to curtail cross-
examination. Section 166(3)(a) of the Act provides that if it appears to the court that
cross-examination is being protracted unreasonably and thereby causing an
unreasonable delay in the proceedings, the court may request the cross-examiner (that
is, prosecutor, defence lawyer or unrepresented accused as the case may be) to disclose
the relevancy of any particular line of examination and may, if necessary, impose
reasonable limits on the length of the examination or any particular line of examination.
The court may, in terms of s 166(3)(b), order that any submission regarding the
relevancy of the cross-examination (the purpose of the questions) be heard in the
absence of the witness who is being cross-examined. The purpose of s 166(3)(b) is to
ensure that the cross-examiner cannot claim that advance disclosure of the purpose of
the questions would prematurely alert the witness to what counsel wishes to investigate
or probe. It has been argued that s 166(3) is not unconstitutional, but has to be invoked
 and applied with great care to protect the accused's constitutional fair trial right (Van
der Merwe 1997 Stellenbosch Law Review 348 355-9).
h) The presiding judicial officer must ensure that a proper record of the trial proceedings
and evidence is kept. Such a record is necessary for review and appeal purposes. A
record of the disposal or remand of cases must also be kept (Cornelius 2008 (1) SACR 96
(C)). It is the duty of the presiding judicial officer to ensure, with the assistance of the
parties if necessary, that any demonstration given by a witness is described in detail in
the record (Nkombani 1963 (4) SA 877 (A)).

6) The principle of orality

Dennis The Law or Evidence 3 ed (2007) states at 16:
The principle of orality is the principle that evidence on disputed questions of fact
should be given by witnesses called before the court to give oral testimony of
matters within their own knowledge. Historically the principle is intimately
connected with the importance attached by the common law to the oath, to the
demeanour of the witness, and to cross-examination as guarantees of reliability. Oral
testimony from witnesses physically present before the court also helps to legitimize
the adjudication in other ways. It reinforces the drama and solemnity of the
occasion, and it allows for maximum participation in decision-making in the sense
that parties confront their accusers and challenge the evidence against them in the
most direct way possible by cross-examination.

In the course of the criminal trial the principle of orality must be observed (Adendorm 2004
(2) SACR 185 (SCA) at [20]). A witness must, except where the Act or any other law provides
otherwise, give evidence orally s 161(1). Oral evidence shall 'in the case of a deaf and dumb
witness, be deemed to include gesture-language and, in the case of a witness under the age
of 18 years, be deemed to include demonstrations, gestures or any other form of non-verbal
expression' s 161(2) of the Act.

In Roux 2007 (1) SACR 379 (C), the court could find no reason why the evidence of the
complainant, a child with Down's syndrome, could not be given with the assistance of a
speech therapist if the latter could interpret his speech.

In order to ensure that the principle of orality with its emphasis upon confrontation is
enforced in an orderly fashion, the questioning of each witness is in principle subjected to
the following successive stages: examination-in-chief, cross-examination, re-examination.

Interpreters
Where necessary, interpreters must be used, also s 35(3)(k) of the Constitution. The role
played by an interpreter is a vital and crucial element of a fair trial in terms of s 35(3) of the
Constitution—Manzini 2007 (2) SACR 107 (W).

The presiding officer must make sure that the accused understands the language used by
witnesses. But where the accused through his or her conduct leads the court to assume that
he or she understands the language used, such accused will not easily, after his or her
conviction, be able to claim a review on the grounds of an irregularity because he or she did
not understand the proceedings Geidel v Bosman 1963 (4) SA 253 (T).
The interpreter must be sworn in, either upon taking office or at the commencement of the
case in which he acts as interpreter. If he or she is not sworn in, it amounts to an irregularity
which may render the trial abortive—Naidoo 1962 (2) SA 625 (A). The poor performance by
an interpreter in interpreting evidence during a trial affects the evaluation of that evidence
and infringes an accused's right to a fair trial—Manzini 2007 (2) SACR 107 (W); Mpondo
2007 (2) SACR 245 (C).

In Sayed v Levitt NO 2012 (2) SACR 294 (KZP) at [14] and [15] it was held that the
interpreter's lack of proficiency in the relevant language and her ignorance of the legal
process had contributed to the irregularities which 'impacted on the fairness of the trial'.

Where an interpreter resorts to technical language, the court should establish whether the
words or terms are those of the interpreter or the witness concerned—MM 2012 (2) SACR
18 (SCA) - Mabona 1973 (2) SA 614 (A).

Oath (or affirmation or warning)

No witness can be examined unless the oath has been administered, except where ss 163
and 164 apply s 162(1). Non-compliance renders the evidence inadmissible (B 2003 (1) SACR
52 (SCA); Galant 2008 (1) SACR 196 (E) at [4]). Omission of the phrase 'the whole truth' from
the wording of the oath as prescribed in s 162(1), does not on its own amount to non-
compliance (Armstrong 2019 (1) SACR 61 (WCC) at [36]).

In the High Court, the judge or his or her registrar must administer the oath, and in lower
court the magistrate must do so s 162 (1) -y Machaba 2016 (1) SACR 1 (SCA) at [10].

The prosecutor may not administer the oath (Bothma 1971 (1) SA 332 (C)).

A witness who objects to taking the oath is required to affirm that he or she will speak the
truth s 163; Bakos 2010 (1) SACR 5234 (GSJ). An affirmation has 'the same legal force and
effect as if the person making it had taken the oath' s 163(2).

A witness who does not understand the nature and import of the oath or affirmation shall
be admonished by the court to speak the truth s 164 (1). The mere youthfulness of a witness
can justify the finding that the witness cannot understand the nature of the oath or
affirmation Williams 2010 (1) SACR 487 (ECG).

An intellectually impaired person may also be admonished by the court to speak the truth -
Haarhomv Director on Public Prosecutions Eastern Cape (Grahamstown) [2019] 1 All SA 585
(SCA).

Cross-examination
The party which did not call the witness has a fundamental right to cross-examine a witness.
The purpose of cross-examination is to elicit facts favourable to the cross-examiner's case.
Cross-examination is not confined to matters raised by the witness in his or her evidence-in-
chief. Leading questions are permitted. The cross-examiner has a duty to cross-examine on
matters he or she disputes. Misleading questions may not be put. Vexatious, abusive or
discourteous cross-examination is not allowed.
A court may on good grounds shown allow a party to reserve cross-examination. Once such
reservation has been granted, a court cannot later deny a party the opportunity to cross-
examine (Mgudu 2008 (1) SACR 71 (N)).

Re-examination
Re-examination follows cross-examination. It is conducted by the party who initially called
the witness. It is in principle confined to matters covered in cross-examination. The rules
which govern examination-in-chief apply and leading questions may therefore not be put.
Matters not initially covered in evidence-in-chief) may not be introduced in re-examination
without the permission of the court, who should then permit cross-examination on such
new matters introduced in re-examination.

Questioning where an intermediary has been appointed

Section 170A(1) provides that whenever it appears to the court that the proceedings would
expose any witness under the biological or mental age of 18 years 'to undue mental stress
or suffering' should he or she testify, the court concerned may appoint an intermediary in
order to enable this child witness to give evidence through that intermediary in order to
protect a child witness from the harsh reality of a court session and the adversarial trial
system where questioning and especially cross-examination—may be extremely intimidating
to the child, especially the allegedly sexually abused child.

The child witness is in a separate room with the intermediary. All the people in court,
however, can observe the child witness through a one-way mirror or closed-circuit
television, as the case may be. The child witness only hears the prosecutor's and counsel's
question as relayed by the intermediary, either in its original form or as amended by the
intermediary who may convey the general purport of the question. The process is described
as follows by Van der Merwe in Schwikkard & Van der Merwe Principles of Evidence 4 ed
(2016) para 18 11:
In terms of s 170A(2)(a) of the CPA no examination in chief, cross-examination or re-
examination of any witness in respect of whom a court has appointed an
intermediary shall take place in any manner other than through that intermediary.
This means that the parties may at no stage question the witness directly. It is only
the court that may question the witness without intervention by the intermediary...
A crucial provision is contained in s 170A(2)(b) of the CPA: 'The intermediary may,
unless the court directs otherwise, convey the general purport of any questions to
the relevant witness.' This means that—subject to the court's final control, any
question put by the prosecutor and the defence may be 'blocked' by the
intermediary in the sense that the intermediary may 'relay' the question to the
witness in a different form. The general purport of the question is conveyed and the
ipsissima verba of the original question may be ignored. The court may mero motu or
in response to objections raised by one or more of the parties direct the
intermediary to put the original question or, if necessary, to make another attempt
at conveying the general purport of the original question. Or the court may take a
shortcut and put the original question in the form that it thinks fit. But the nature of
the court's question must be such that the court does not descend or is not
perceived to be descending into the arena. The court may not cross-examine.
Section 170A is not unconstitutional (Director on Public Prosecutions, Transvaal v Minister of
Justice and Constitutional Development 2009 (2) SACR 130 (CC); K v Regional Court
Magistrate NO 1996 (1) SACR 434 (E)).

The Minister may by notice in the Gazette determine the category or class of persons who
are competent to be appointed as intermediaries by a court s 170A(4)(a). Examples of such
persons are certain doctors, social workers, child care workers, teachers and psychologists.
Lawyers do not qualify.

7) The principle of finality

The above principle demands that neither the State nor the accused should be permitted to
reopen their cases once closed, unless such reopening is necessary to introduce rebutting
evidence where a party was taken by surprise. Where new facts, which the prosecution
could not have foreseen, are introduced during the course of the defence case, a reopening
of the prosecution's case should be permitted to allow for evidence in rebuttal (Christie
1982 (1) SA 464 (A)).

Similarly, an accused who is surprised by the unexpected incriminating evidence of a co-

accused should be allowed to reopen his or her case to testify in his or her own defence or
call witnesses in an attempt to rebut the co-accused's evidence (Simelane 1958 (2) SA 302
(N)).

The case for the prosecution

Opening of the State's case
Before any evidence is led, the prosecutor is entitled to address the court for the purpose of
explaining the charge and indicating the evidence intended to be adduced for the
prosecution, but without comment thereon s 150(1). The prosecutor's address (except in
cases where argument is necessary on an objection) is heard after the process of
arraignment is completed.

The subsection clearly comes into operation only where an accused has pleaded not guilty
and the prosecutor intends to lead evidence Sethole 1984 (3) SA 620 (0).

In practice it is considered unnecessary for the prosecutor to deliver an opening address in

simple cases. In complicated cases, an address by the prosecution at the opening of the case
give a summary of the essential features of the case for the State so that the court will be in
a position to appreciate the significance of each item as it is presented in the light of the
evidence which is still to be led by the State.

The prosecutor should avoid any reference to evidence which may not be admissible or to
any contentious matter which may prejudice the case of the accused. Such matters should
be dealt with when they arise in the course of the trial and, if necessary, in the absence of
the assessors.

The defence may cross-examine a State witness on a discrepancy between his or her
evidence and the prosecutor's opening address (Mbata 1977 (1) SA 379 (O)). The
circumstances of each case will determine the credibility inference to be drawn from
inconsistencies between the State's evidence and what the prosecutor said (V 1995 (1) SACR
173 (T)).

The calling of State witnesses and examination-in-chief by prosecutor

In those exceptional cases where a document may be received in evidence upon its mere
production, the prosecutor shall read out the contents of the document in court unless the
accused has a copy or dispenses with the reading out thereof. The prosecutor is not
compelled to call all available witnesses to an occurrence (Heilbron 1922 TPD 99).

Closing the State's case

After all the evidence for the prosecution has been disposed of, the prosecutor must close
his or her case. A presiding officer does not have the authority to close the State's case if the
prosecutor is not willing to do so but if the prosecutor, after an application by him or her for
the postponement of the trial has been refused, refuses to lead evidence or to close the
State's case, it is presumed that the State's case is closed, and the judicial officer should
continue with the proceedings as if the prosecutor had indeed closed the State's case—
Magoda 1984 (4) SA 462 (C).

Discharge of accused at the end of the state's case

Section 174 provides as follows:
If, at the close of the case for the prosecution at any trial, the court is of the opinion that
there is no evidence that the accused committed the offence referred to in the charge or any
offence of which he may be convicted on the charge, it may return a verdict of not guilty.

In Masondo: In re S v Mthembu 2011 (2) SACR 286 (GSJ) at [38] Kgomo J noted that -
processes under s 174 translate into a statutorily granted capacity to depart
discretionarily, in certain specific and limited circumstances, from the usual course a
case should take. It is meant to cut the tail off a superfluous process. Such a capacity
does not detract from either the right to silence or the protection against self-
incrimination. If an acquittal flows at the end of the State case, the opportunity or
need to present evidence by the defence on the charge(s) in issue falls away. If
discharge is refused, the accused still has the choice whether to testify or close his
case on the charge(s) in issue. There is no obligation on him to do either. Once the
court rules that there is no prima racie case against an accused, there also cannot be
any negative consequences as a result of the accused's silence in this context.

4.2 Background and interpretation

The historical background to s 174 was set out in Cooper 1976 (2) SA 875 (T). The
origin of the section can be traced to trial by jury. Judges (who had the duty to
decide matters of law) thought that they should be able to withdraw a case from
the jury (who had to decide matters of fact) where it was clear, at the end of the
case for the prosecution, that there was no evidence upon which a reasonable per-
son might convict. See generally Legote 2001 (2) SACR 179 (SCA) at [8]. The judges
accordingly ruled, as a matter of law, that they could in these circumstances, and
in order to avoid a so-called perverse verdict, direct the jury to acquit the accused.
This process came to be known as the 'discharge of the accused at the end of the
State's case'. But
A discharge is for all purposes the same as an acquittal on the merits. It provides an accused
with the plea of prior acquittal should he or she be recharged on the same subject matter.
The fact that the discharge of an accused at the end of the State's case is treated as a
question of law means that assessors (as finders of fact and remnants of the jury) are not
entitled to decide with the judge or magistrate whether a discharge as provided for in s 174
should be granted (Magxwalisa 1984 (2) SA 314 (N)).

There is a general rule that in deciding whether to grant a discharge, a judge or magistrate
may not take into account the credibility of the State witnesses (Dladla (2) 1961 (3) SA 921
(D)). This rule is rather peculiar, but must be understood in the historical context that once
the judges in jury trials had claimed that discharge was a question of law and not fact, they
were for the sake of consistency obliged to accept that credibility (clearly a matter of fact to
be decided by the jury) could not play a role in granting or refusing discharge.

Cases decided since Dladla have shown greater flexibility (Nandha Gopal Naidoo 1966 (1) PH
H104 (W)). In Mpetha 1983 (4) SA 262 (C) it was held that the credibility of State witnesses
should play a limited role, and that their evidence should only be ignored where the quality
is so poor that no reasonable person would accept it. See further Swartz 2001 (1) SACR 334
(W).

Where the State's case consists of circumstantial evidence permitting various inferences, a
discharge may be refused if one of the inferences indicates that the accused is guilty Cooper
889. The standard of proof beyond reasonable doubt does not apply at this stage and the
rules of logic set out in R v Blom 1939 AD 188 to ensure compliance with this final standard
do not apply.

It is possible that an accused who has not been discharged in terms of s 174 may close his or
her case without leading any evidence and yet be acquitted on account the difference in the
standards of proof applicable to each stage (Masondo: In re S v Mthembu 2011 (2) SACR 286
(GSJ) at [45] and [46].

A discharge in terms of s 174 cannot be considered once the defence has commenced the
presentation of its case - Phuravhaltha 1992 (2) SACR 544 (V), where multiple accused were
involved.

An accused may be discharged in respect of one or some or all of the charges against him or
her. See Manekwane 1996 (2) SACR 264 (O). An accused's denial of unlawfulness in
response to questions put by the court in terms of s 112(1)(b) cannot be taken into account
for purposes of a discharge in terms of s 174 (Adams 1993 (1) SACR 330 (C)).

A court should, where appropriate, of its own accord raise the question of a discharge, and
should do so even where the accused has legal representation (Legote 2001 (2) SACR 179
(SCA)). The court's failure to advise an unrepresented accused of his or her right to apply for
a discharge in terms of s 174 can amount to a fatal irregularity in the proceedings (Zwezwe
2006 (2) SACR 599 (N)); Amerika 1990 (2) SACR 480 (C)).
 A court's refusal to discharge an accused is not appealable (Ebrahim 2000 (2) SACR 173
(W)).

The prosecution may apply for a review of a magistrate's discharge of an accused if such
discharge constituted a gross irregularity as envisaged in s 22(1)(c) of the Superior Courts
Act 10 of 2013 - Director of Public Prosecutions, Gauteng Local Division, Johannesburg v
Regional Magistrate, Krugersdorp & another 2018 (1) SACR 93 (GJ).

At [11] it was found that 'no reasonable presiding officer could have granted a discharge'.
The discharge prejudiced the prosecution (at [13]). A new trial before another magistrate
was ordered (at [16]).

The test for discharge

The so-called 'Schuping test'
In the pre-constitutional era, the following test as stated in Schuping 1983 (2) SA 119 (B) at
120H—1211 came to be accepted in most High Court decisions:
At the close of the State case, when discharge is considered, the first question is
1) is there evidence on which a reasonable man might convict; if not
2) is there a reasonable possibility that the defence evidence might supplement the State’s
case? If the answer to either question is yes, there should be no discharge and the accused
should be placed on his defence.

The two-legged test (the 'Schuping test') was subjected to constitutional scrutiny in various
High Court decisions. Taking into account constitutional rights such as the privilege against
self-incrimination and the right to human dignity and personal freedom, the Supreme Court
of Appeal in Lubaxa 2001 (2) SACR 703 (SCA) took the following view:
a) An accused must be discharged at the end of the State's case if a conviction would only
be possible if the accused were to testify and incriminate himself. At [19] it was said that the
constitutional right to dignity (s 10 of the Constitution) and the constitutional right to
freedom (s 12 of the Constitution) call for a discharge if 'the prosecution has exhausted [its]
evidence and a conviction is no longer possible except by self-incrimination'. The
prosecution was instituted on the basis of the common-law principle that the prosecution
had reasonable and probable cause to believe that the accused was guilty; and if by the end
of the State's case possible self-incrimination is the only form of incrimination left, a fair trial
demands a discharge.
b) The approach in (a) above would, according to the court in Lubaxa, not apply in a case
where there are co-accused and 'the prosecution's case against one accused might be
supplemented by the evidence of a co-accused' at [20]). In such an instance the refusal to
discharge is not based on an expectation of self-incrimination. It is the prospect of
incrimination by a co-accused which can justify refusal to discharge.

If there is at the end of the State's case nothing whatsoever to indicate that a co-accused
will incriminate an accused, refusal of a discharge would 'undoubtedly [deny the accused] a
fair trial' (Nkosi 2011 (2) SACR 482 (SCA) at [27]).

The defence case

The defence is required to proceed with its case if there is no discharge as provided for in s
174 of the Act. Various options are available to the accused:
1) The passive defence right: closing the defence case as a response
The accused has a passive defence right in the sense that he or she can refuse to testify in
his or her own defence and can also refuse to call any possible defence witnesses. This is a
legitimate response. The accused has a constitutional right to refuse to testify s 35(3)(h) of
the Constitution. The defence case can be closed without any defence evidence having been
led and the court is then required to consider its verdict.

2) Defence address
If the accused intends to adduce defence evidence, he or she, or his or her legal
representative, 'may address the court for the purpose of indicating to the court, without
comment, what evidence [will be led] on behalf of the defence' s 151(1)(a) of the Act.

The accused's right to deliver a defence address is rarely exercised and hardly ever
necessary because the earlier cross-examination of State witnesses would in most instances
have disclosed the nature of the defence.

3) The active defence right

The active defence right of an accused has two basic components: his or her constitutional
and statutory right to testify in his or her own defence and his or her constitutional and
statutory right to call defence witnesses if any are available (s 35(3)(h) of the Constitution
and s 151 of the Criminal Procedure Act).

4) The active defence right and the sequence of defence witnesses

An accused who wishes to testify in his or her own defence and wants to call one or more
defence witnesses is in terms of s 151(1)(b) of the Act required—in principle—to testify
before calling the defence witnesses but the court may 'on good cause shown' allow a
deviation from this sequence. See s 151(1)(b)(i); Nene 1979 (2) SA 520 (D). The purpose of s
151(1)(b) is to avoid a situation where an accused, having heard the defence witnesses first,
can tailor his or her testimony to fit theirs. Where an accused decides to testify in his or her
own defence after having called his or her defence witnesses, 'the court may draw such
inference from the accused's conduct as may be reasonable in the circumstances' (s 151(1)
(b)(ii)).

5) Evidence-in-chief of defence witnesses

All defence witnesses—including the accused as a defence witness give evidence-in-chief as
normal. An accused who wishes to testify from the dock, and not the witness-box, should be
permitted to do so (Tsane 1978 (4) SA 161 (0); Bulala 1997 (2) SACR 267 (BVHC)).

6) Cross-examination of defence witnesses by the prosecution

In terms of s 166(1) of the Act a prosecutor may cross-examine any defence witness,
including an accused, called on behalf of the defence. The fact that the legal representative
of the accused fails to object to rude, hectoring and unreasonable cross-examination by the
prosecutor does not absolve the trial court from its duty to intervene in order to secure a
fair trial (Omar 1982 (2) SA 357 (N)). Unfair cross-examination of an accused may result in a
constitutional irregularity (Tshoma v Regional Magistrate Uitenhage 2001 (8) BCLR 860 (E)).
Final arguments by prosecution and defence
Once all the evidence has been adduced, the prosecutor may address the court on the
merits: the question of guilt or innocence; and the defence may thereafter also address the
court s 175(1); Dlamini 1992 (2) SACR 533 (N).

The prosecutor has the right to reply on any matter of law raised by the defence in its
address; and the prosecutor may also, with the court's permission, respond to any matter of
fact raised by the defence in its address—s 175(2).

The court's duty to explain to an undefended accused that he or she has the right to address
the court may not be delegated to the interpreter (Lekhetho 2002 (2) SACR 13 (O)). The
refusal of an accused to address the court means that he or she either abandons or loses
this right (Vermaas 1997 (2) SACR 454 (T)). The court's failure to allow an address can
infringe the constitutional fair trial right of the accused. See generally Muller 2005 (2) SACR
451 Adams 2009 (1) SACR 394 (C) and Shamatla 2004 (2) SACR 570 (E).
Unit 9: The verdict and sentencing stage
An accused who has pleaded not guilty to charges in respect of which the trial court has
given no verdict is on appeal or review entitled to an acquittal on all those charges (Sithole
1999 (1) SACR 227 (T) at 299h).

Different considerations might apply where no verdict was given in respect of a plea of
guilty and it is on appeal or review clear that this plea was adequately supported by
statements made by the accused.

An 'ex tempore judgment' is where the facts and law are so straightforward that a court
could give its judgment immediately after the closing of the accused’s case.

But the court is entitled to postpone the case for purposes of considering its verdict and
would normally have to do so where the factual and legal issues so demand.

The Supreme Court of Appeal has stated that there is an ethical duty on the court to give
judgment promptly and without undue delay, that parties are entitled to judgment as soon
as reasonably possible and, furthermore, that improper delays destroy public confidence in
the courts (Pharmaceutical Society or South Africa v Tshabalala-Msimang NNO; New Clicks
South Africa (Pty) Ltd v Minister of Health 2005 (3) SA 238 (SCA) at 261H. An accused also
has a constitutional right to have his or her trial concluded 'without unreasonable delay'—s
35(3)(d) of the Constitution.

A trial is concluded upon acquittal; if convicted, the matter of sentencing must be dealt with
in order to bring the trial to conclusion. Reviews and appeals are post-trial procedures.

The Constitutional Court has pointed out that an accused's constitutional right to a fair trial
also means that an accused 'is entitled to be provided with reasons for each charge he is
convicted of and that this also extends to the right of appeal to a higher court'—Barlow
2017 (2) SACR 535 (CC) at [11].

In National Director or Public Prosecutions v Naidoo 2011 (1) SACR 336 (SCA) Mpati P and
Tshiqi JA said (at [18]):
The importance of furnishing reasons for a judgment is a salutary practice. Judicial officers
express the basis for their decisions through reasoned judgments. A statement of reasons
gives assurance to the parties and to any other interested member of the public that the
court gave due consideration to the matter, thereby ensuring public confidence in the
administration of justice.

In terms of s 146 of the Act a judge is required to give reasons for any conclusions reached
by him or her in respect any question of law or fact - Maake 2011 (1) SACR 263 (SCA) at [24].
A magistrate is also obliged to give reasons for his or her decision on any factual or legal
issue s 93ter(3)(c) to (e) of the Magistrates' Courts Act 32 of 1944; Maake at [25]; Molawa
2011 (1) SACR 350 (GSJ).
Proper reasons require 'an intelligent analysis of the evidence' and cannot consist of 'a
mechanical regurgitation of the evidence'—Bhengu 1998 (2) SACR 231 (N) 234t—235a.

Paucity of reasons and the absence of any specific finding as regards the evidence of an
accused are 'tantamount to a situation where no reasons for a conviction are given'
Ngabase 2011 (1) SACR 456 (ECG) at [4].

Competent verdicts)
It is possible that the evidence might fall short of proving the crime charged, but does
succeed in proving beyond reasonable doubt the commission of some other offence not
specifically formulated as an alternative charge. This type of situation is governed by the
statutory rules pertaining to competent verdicts - the unexpressed, latent or implied charges
which only surface once the crime charged is not proved but some other crime, which is
normally lesser than or akin to the crime charged, is proved.

Sections 256—270 of the CPA identify the situations and crimes that will give rise to
competent verdicts. Competent verdicts are only possible if permitted by statutory
provisions.

One of the objects of competent verdicts is to make it unnecessary to have a range of

express alternative charges (Jabulani 1980 (1) SA 331 (N) 332B—C).

A competent verdict can only follow where there is proof beyond reasonable doubt of the
implied offence (Mbatha 1982 (2) SA 145 (N)) and no such proof in respect of the offence
charged and a conviction on a competent verdict must be regarded as an acquittal on the
original charge (Director or Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA).

Competent verdicts and the constitutional right to a fair trial

An essential component of an accused's common-law and constitutional right to a fair trial is
the right to be informed of the charge(s) with sufficient detail (s of the Constitution; Thwaia
2019 (1) BCLR 156 (CC) at [23]; Jugazi 2001 (1) SACR 107 Fielies 2006 (1) SACR 302 (C) at [7]).

Competent verdicts clearly create a risk of 'trial by ambush' in breach of the right to a fair
trial (Motsomi 2005 JDR 1080 (T) at [4]). Our courts have therefore developed rules of
practice to ensure that the convenience of having competent verdicts does not render a trial
unfair (Chauke 1998 (1) SACR 354 (V) 356j-357a; Masita 2005 (1) SACR 272 Kester 1996 (1)
SACR 461 (B)).

These rules were set out as follows by Griesel J in Fielies at [9]:

1) The constitutional right to be informed of the charge includes the right to be informed of
competent verdicts on the charge;
2) While it is not essential to refer to competent verdicts in the charge-sheet, it is
extremely desirable that an undefended accused be informed timeously of any
competent verdicts that might be returned on conviction;
3) In order to give efficacy to this right, it is important that the accused be informed of
competent verdicts before pleading;
4) These principles have particular relevance—but are not limited to the situation where a
statutory provision places an onus on the accused;
5) Failure to inform an accused of a competent verdict does not per se preclude the court
from recording such competent verdict. Everything will depend upon the facts of each
particular case and the extent to which an accused may or may not be prejudiced in the
conduct of his or her defence by such omission. Where there is the likelihood of
prejudice to the unrepresented accused, the return of a competent verdict would not be
sanctioned;
6) In the ultimate analysis, the enquiry is simply whether the accused has been given a fair
trial.

'Prejudice' as envisaged in para (5) above is absent where the court concludes that an
accused—had his or her attention been drawn to the risk of a competent verdict—could not
have conducted his or her defence any differently or would not have had any other defence
(Mwali 1992 2 SACR 281 (A)).

In cases where the accused had legal representation, the courts would normally be slow to
conclude that the absence of a warning concerning a competent verdict had rendered the
trial unfair (Jasat 1997 (1) SACR 489 (SCA) 493/1-4941).

An accused can plead guilty to an offence which is a competent verdict in respect of the
offence charged. See s 106(1)(a) of the Act.

An accused charged with an attempt cannot be convicted of the completed crime even if
such completion is proved. In such an instance s 256 does not prohibit a conviction on the
attempt as charged (Sikhakane 1982 (2) SA 289 (N)).

An accused acquitted upon a charge of having committed an offence can successfully raise
the plea of prior acquittal (autrefois acquit) if subsequently charged with an attempt to have
committed such offence because at his or her first trial such accused was already in jeopardy
in respect of the attempt on account of the provisions of s 256.

Competent verdicts of some offences

Accessory after the fact: s 257 of the Act
If there is no proof that the accused was a perpetrator, co-perpetrator or accomplice in the
crime charged, he or she may be convicted as an accessory after the fact to the crime
charged should there indeed be proof that he or she acted in such a capacity.

In all cases, the sentence imposed on a competent verdict (e.g., accessory) may not exceed
the sentence which may be imposed in respect of the offence with reference to which the
accused was convicted as an accessory s 257.

Murder and attempted murder: s 258 of the Act

The following are competent verdicts on a charge of murder or attempted murder:
a) culpable homicide;
b) assault with intent to do grievous bodily harm;
c) robbery;
d) common assault;
e) public violence; or
f) pointing a fire-arm, air-gun or air-pistol in contravention of any law.
g) in a case relating to a child, the offence of exposing an infant, whether under a statute
or at common law, or the offence of disposing of the body of a child, in contravention of
section 113 of the General Law Amendment Act 46 of 1935, with intent to conceal the
fact of its birth;

Robbery: s 260 of the Act

Competent verdicts in respect of robbery or attempted robbery include:
a) assault with intent to do grievous bodily harm (s 260(a));
b) common assault (s 260(b)); or
c) theft (s 260(d)).

Robbery is the only crime where an accused can be convicted of two other crimes if the
single robbery charge is not proved but the two other latent crimes are: theft and common
assault as two separate competent verdicts or theft and assault with intent to do grievous
bodily harm as two separate competent verdicts.

This unique provision in s 260 must be understood in the context of the substantive criminal
law definition of the crime of robbery: it is really theft of property through the use of
violence where there is a causal link between the violence and the taking of the property.

Where there is a single charge of robbery and the evidence fails to establish the causal link
between the theft and violence, there may nevertheless be proof of theft and violence—
hence the two competent verdicts (Matjeke 1980 (4) 267 (B)).

Offences not specified in ss 256 to 269A of the Act: s 270 of the Act
Section 270 provides that if the evidence on a charge of any offence not referred to in ss 256
to 269A of the Act does not prove the offence charged 'but proves the commission of an
offence which by reason of the essential elements of that offence is included in the offence
so charged, the accused may be found guilty of the offence so proved'.

A court should not resort to s 270 in order to remedy the inept or slovenly work of
prosecutors who fail to draft the correct charges (Cowling (2000) SACJ 227, 237).

In Busuku 2006 (1) SACR 96 (E) at [12] it was held that 'the enquiry, when determining
whether to invoke... s 270... is whether the essential elements of the alleged competent
verdict were included in the original charge'.

In Mitchell 1992 (1) SACR 17 (A) it was held, for example, that all the essential elements of
conspiracy to assault were not included in the original charge of murder and that s 270
could therefore not be invoked.

The crime of 'statutory intoxication' as a competent verdict on any charge: s 1(2) of the
Criminal Law Amendment Act 1 of 1988
In terms of s 1(1) of the Criminal Law Amendment Act 1 of 1988, a person who voluntarily
consumes alcohol (or uses any other drug) to such an extent that it leads to criminal non-
responsibility and who—whilst in this condition commits an act punishable by law of which
he or she would have been convicted but for his or her self-induced lack of criminal
responsibility, is guilty of an offence.

This offence may be put as the only charge, or as an express alternative to the main charge,
e.g., murder alternatively contravention of s 1(1) of Act 1 of 1988. In terms of s 1(2) of Act 1
of 1988, a conviction of statutory intoxication—contravention of s 1(1) may also be a
competent verdict in any prosecution for any offence. It is an automatic alternative to the
main charge (Mphungatje 1989 (4) SA 139 (O) 144A).

Section 1(2) states:

If in any prosecution for any offence it is found that the accused is not criminally liable for
the offence charged on account of the fact that his or her faculties referred to in subsection
(1) were impaired by the consumption or use of any substance, such accused may be found
guilty of a contravention of subsection (1), if the evidence proves the commission of such
contravention.

Where an accused is found guilty of 'statutory intoxication' as a competent verdict, the

court's finding must make reference to the original charge, e.g., 'guilty of contravening s 1(1)
of Act 1 of 1988 (murder)'.

The court's amendment of its own verdict: section 176 of the Act
The common-law principle is that a court is functus officio once it has delivered its
judgment: the court itself may not alter or revoke its verdict (Chauke 2010 (1) SACR 287
(GSJ)).

Section 176 of the Act creates a very limited exception to this principle. This section
provides as follows:
When by mistake a wrong judgment is delivered, the court may, before or immediately after
it is recorded, amend the judgment.

Section 298 of the Act contains a similar provision in respect of the sentence passed by the
court.

Section 176 does not entitle a trial court to amend a verdict given as a result of a
misdirection or incorrect procedure (Brand 1992 (1) SACR 525 (Nm)) but is primarily aimed
at the situation where a court intends to pronounce a verdict of, say, guilty of theft, but
inadvertently announces a verdict of guilty of robbery and then wishes to rectify this
mistake.

There is a common-law rule which permits a court to effect linguistic or other minor changes
to its judgment as pronounced, without changing the outcome or substance thereof (Wells
1990 (1) SA 816 (A)). Section 176 must be read in conjunction with this common-law
approach (Maitala 1991 (1) SACR 78 (BA)).
General principles with regard to sentencing
The general principles of sentencing were summarised in Rabie 1975 (4) SA 855 (A) 862G as
follows:
Punishment should fit the criminal as well as the crime, be fair to society, and be blended
with a measure of mercy according to the circumstances.

These three elements (the crime, the offender and the interests of society) are known as the
'triad of Zinn', after the judgment in Zinn 1969 (2) SA 537 (A).

All sentences should take into account the main purposes of punishment: retribution,
deterrence, prevention and rehabilitation. Deterrence has been considered the most
important (B 1985 (2) SA 120 (A) 124), but in Nkambule 1993 (1) SACR 136 (A) 146C it was
pointed out that this was an oversimplification, as the position is not static.

The process which should ensure that every sentence fits the criminal as well as the crime
and is fair to society is known as personalisation (or individualisation) of punishment and
the main reason for leaving sentencers with such a wide discretion.

Review and appeal

Section 22(1) of the Act regulates the grounds on which a review procedure may be
instituted against inferior courts' decisions. These are:
1) absence of jurisdiction of the court;
2) interest in the cause, bias, malice or corruption on the part of the presiding judicial
officer;
3) gross irregularity in the proceedings; and/or
4) the admission of inadmissible or incompetent evidence, or the rejection of admissible or
competent evidence.

The court hearing a review under this section is confined to the relevant provisions of the
Act and may not go beyond this. The procedure under the Superior Courts Act, contrary to
that provided for by the Criminal Procedure Act, is strictly formal and also expensive to
exercise.

An irregularity in the proceedings of a lower court that does not appear from the record of
the proceedings may be brought under review supported by an affidavit setting out the
grounds, facts and circumstances on which the applicant relies.

The Criminal Procedure Act provides for various procedures by which the High Court may
review criminal proceedings in lower courts, and establishes by whom such a review
procedure may be instituted. The following review procedures are provided for under this
Act:
1) automatic review in terms of s 302;
2) extraordinary review in terms of s 304(4);
3) review of proceedings before sentencing in terms of s 304A;
4) setting down of a case for argument in terms of s306.
The second category of judicial review is of common-law origin and includes the High
Court's common-law inherent jurisdiction to review, which power is acknowledged in s 173
of the Constitution. See Hira v Booysen 1992 (4) SA 86 (A) on common-law review powers.

These courts are endowed with an inherent jurisdiction to review the proceedings of lower
courts, administrative authorities or tribunals and to set aside or to correct errors in the
proceedings if it appears to be in the interest of justice, or to test the validity of proceedings
of such institutions in order to prevent injustices or miscarriages of justice.

The Supreme Court of Appeal has no common-law jurisdiction to ordinarily review the
proceedings of any High Court, thus, unless an aggrieved party brings a matter before the
Supreme Court of Appeal by way of appeal, that court has no jurisdiction. In criminal cases
the Supreme Court of Appeal has no power to review any proceedings of High Courts which
are not brought before it by way of an appeal or an appeal by virtue of a special entry of an
irregularity or by way of an appeal or an appeal by virtue of a special entry of an irregularity
or illegality in the procedure, or an appeal by means of the reservation of a question of law.

Judicial review in terms of the Constitution

The concept of judicial review within a constitutional legal system was first introduced by
Judge John Marshall in the well-known American case of Marbury v Madison 5 US (1 Cranch)
137 (1803), where the learned judge established the judicial power to set aside a statute or
provision thereof as unconstitutional.

In South Africa, any law (whether a statute of Parliament or a rule of the common or
customary law) or conduct inconsistent with the provisions of the Constitution will be
invalid to the extent of the inconsistency (ss 2, 8(1) and 172(1) of the Constitution).

Judicial review might be defined as the authority of a court with jurisdiction to examine
executive conduct or a legislative Act and to invalidate that conduct or Act if it is contrary to
constitutional principles.

In Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) at [49] (applied in
National Director of Public Prosecutions v Freedom under the Law 2014 (2) SACR 107 (SCA)
at [28]), the court held that there is an alternative to where judicial review finds no
application, and that is the doctrine of legality.

The doctrine of legality, the essence of the rule of law, includes review on grounds of
irrationality and on the basis that the decision-maker did not act in accordance with the
empowering statute:
The exercise of public power must therefore comply with the Constitution, which is
the supreme law, and the doctrine of legality, which is part of that law. The doctrine
of legality, which is an incident of the rule of law, is one of the constitutional controls
through which the exercise of public power is regulated by the Constitution.

Public power cannot be exercised arbitrarily and the exercising of such power must be
rationally related to the purpose for which the power was given. This is the rationality test:
Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) at [75] and Masetlha v
President of the Republic of South Africa 2008 (1) SA 566 (CC).

Limitation of constitutional rights and the approach thereto

No right is absolute as the rights of others and the needs of society may restrict these rights.
Section 7(3) of the Constitution explicitly recognises this by providing that the rights in the
Bill of Rights are subject to the limitations referred to in s 36 or elsewhere in the
Constitution.

When an infringement, denial or breach of, or threat to, an entrenched right or freedom is
alleged, a two-stage approach in determining its constitutional validity has to be followed:
1) the first stage of the inquiry is to determine whether the right or freedom has been
infringed or violated by an investigation into the nature and scope of the particular right,
bearing in mind that the court will have to 'promote the values that underlie an open
and democratic society based on human dignity, equality and freedom' as is required by
s 39(1) of the Constitution. If the answer to the first question is in the affirmative, then
2) the second stage is to decide to what extent such infringement or violation is reasonable
and justified in terms of the limitation provisions in s 36.

The onus to prove the limitation, on a balance of probabilities, rests on the party alleging
that the applicant's right is limited as adopted in Qozeleni v Minister or Law and Order 1994
(2) SACR 340 (E) and approved by the Constitutional Court in Makwanyane 1995 (3) SA 391
(CC); Zuma 1995 (1) SACR 568 (CC); Mbatha; Prinsloo 1996 (2) SA 464 (CC).

The justification for a limitation of a fundamental right must be established by the party
relying thereon and it is not for the party challenging it to show that it was unjustifiable
(Zuma 1995 (1) SACR 568 (CC)). The party alleging a limitation of the right in question will
argue that the contested conduct or law is nevertheless acceptable because it can be
justified as law of general application and that the basis of the limitation is reasonable and
justifiable. The final determination will then hinge on the limitation clause and not on the
provision which entrenched the right.

The difference between appeal and review procedures

Both an appeal and a review are aimed at setting aside a conviction or a sentence. An appeal
is concerned with the substantive correctness of the decision based on the facts or merits of
the case on the record and the law relevant to such facts while a review is concerned with
the validity of the proceedings. According to Ellis v Morgan; Ellis v Dessai 1909 TS 576 at
581, an irregularity in the proceedings does not mean an incorrect judgment; it refers not to
the result, but to the methods of a trial which has prevented the aggrieved party from
having his case fully and fairly determined.

Not only irregularities that arise from high-handedness, but also a bona fide mistake
denying the accused a fair trial, will amount to an irregularity in the proceedings.

The differences between appeal and review procedure when constitutional issues are not
exclusively involved are basically the following:
1) An appeal may be brought against the findings of a lower court on any point of law
and/or fact while a review in terms of the Superior Courts Act can be brought only on
the ground of specific procedural irregularities;
2) In an appeal, the parties are confined to what appears on the record, but in a review it is
permissible to prove any of the grounds for review, including alleged irregularities that
do not appear on the face of the record, by affidavit so as to show that the judge had an
interest in the cause or that he or she acted maliciously or corruptly. In Mwambazi 1991
(2) SACR 149 (Nm) at 152A the court illustrated the difference as follows:
It must be stressed that in an appeal an appellant is confined to the four corners of
the record but in review proceedings the aggrieved party traverses matters not
appearing on the record. See also Schwartz v Goldschmid 1914 T PD 122.
Consequently, if there is a patent omission from the record, as for instance the
magistrate's failure to inform an accused of his right to representation, and the
accused comes by way of appeal, such failure to inform him does not mean the High
Court will interfere unless it also appears from the record that the appellant did not
know of his right. On the other hand, if the accused came by way of review he could
fill this gap in his affidavit.
3) A review is not generally permissible on a finding of fact unless that finding is so
unreasonable that it constitutes an irregularity. While any question of law or fact, or any
gross irregularity appearing on the face or the record, may be raised by means of an
appeal, the accused who brings the matter before the court by way of review is confined
to the specific grounds for review. On review he or she will not be allowed to argue that
the presiding officer went wrong on a point of law, unless the error affected one of the
grounds for review (eg, where the magistrate incorrectly decides that the law conferred
jurisdiction upon him or her which he or she actually does not have). The applicant may
not argue on review that the magistrate's decision is wrong on the facts—although a
total absence of any evidence to justify the magistrate's finding is such a gross
irregularity as to afford a ground for review see Hlatswayo 1947 (4) SA 755 (O).
4) While an appeal must be brought within a certain time, there is no such limit in the case
of a review but a court of review will not condone the bringing of the matter under
review after an unreasonable period has elapsed since conviction. In the case of a long
delay, the court will exercise its discretion to hear the review only if a satisfactory
explanation for the delay is given Zwane v Magistrate, Maphumulo 1980 (3) SA 976 (N).
An application for leave to appeal to the Supreme Court of Appeal is not time-bound but
may in exceptional circumstances be allowed s 17(2)(f) of the Superior Courts Act;
5) Appeal is tantamount to a retrial on the record, while in the case of a review, facts can
be brought to the notice of the court by means of an affidavit in order to prove the
irregularity, and the enquiry is then whether the proceedings have been in accordance
with justice and/or whether the accused has been prejudiced by the irregularities in the
proceedings;
6) A court has no inherent appellate jurisdiction and its powers on appeal are statutorily
limited. It is therefore not possible to invoke the court's appellate powers by any means
other than those set out in the relevant statutory provisions. Only the superior courts
enjoy inherent constitutional review jurisdiction (s 173 of the Constitution). The court's
inherent review jurisdiction is overriding and may be invoked irrespective of the relief
procedure instituted. When considering an appeal or a statutory review, the superior
 courts may resort to their inherent review jurisdiction in order to promote the interests
of justice;
7) An appeal is lodged by way of an application for leave to appeal, whereas a review is
sought by way of a notice of motion whereby the respondents are called upon to show
cause why the decision or proceedings should not be reviewed and corrected or set
aside.

Reviews under the Criminal Procedure Act

The following are covered under the Criminal Procedure Act:
1) Automatic review: which is applicable only to district court sentences, on condition that the
accused was unrepresented during the trial and that the penalty imposed by the magistrate
exceeded certain limits. If the court imposes a sentence that is heavier than that prescribed
by section 302, the verdict and sentence of the district court must be reviewed by the High
Court. This form of review provides an unrepresented accused with automatic protection,
without his request, to protect him against errors made in the district courts;
2) Extraordinary review in terms of section 304(4): which is applicable in cases where a regional
or lower court, or even the state, requests the High Court to review an irregularity or
incorrect verdict so that the relevant decision or order may be rectified if it has been
wrongly made. Because a court is functus officio after its decision or order has been made
and therefore cannot make corrections on its own account (unless it realises its mistake
immediately after passing the verdict or sentence and rectifies it immediately), this provides
an avenue to correct an injustice. In McIntyre, this procedure was used by the accused to
enforce the review of the court’s decision on a special plea before any evidence was led by
the state;
3) Review before sentence but after conviction: which is used especially where a case is
referred to the regional court for sentencing and the regional court then finds that there are
irregularities or legal defects in the record of the proceedings, and that the accused has
been wrongfully convicted. The accused may also make use of this procedure;
4) Review in terms of section 306: which allows an accused, irrespective of whether or not he
was legally represented at his trial, to present his case through the automatic review
procedure by submitting written heads of argument. This gives the accused the benefit of
review without incurring any additional expenditure.

Grounds for review

The grounds for review in terms of s22(1) of the Superior Courts Act upon which lower court
proceedings may be brought under review before a division of a High Court are:
1) absence of jurisdiction on the part of the court, e.g., where the offence is one that
cannot be tried by the court, or where the court imposed a punishment beyond its
jurisdiction, or where the offence was committed outside the court's territorial area of
jurisdiction; or where the sentence imposed by the court, although competent, proved
to be unworkable (Mahlangu 2000 (2) SACR 210 (T));
2) interest in the cause, bias, malice or corruption on the part of the presiding judicial
officer: irregularities which are founded on a lack of good faith, ulterior motive or
corruption on the part of the magistrate;
3) gross irregularity in the proceedings. (In Van Heerden 2002 (1) SACR 409 (T) the review
court assumed review powers under s 22 because of the failure of the magistrate to
inform the undefended accused facing a sentence of imprisonment for life that he was
 entitled to legal counsel amounted to a gross irregularity vitiating the entire trial—GR
2015 (2) SACR 79 (SCA)O;
4) the admission of inadmissible or incompetent evidence or the rejection of admissible or
competent evidence.

A matter should be brought under review within a reasonable time, which will depend in
each case on the relevant circumstances. The onus of establishing an unreasonable delay is
on the party alleging it. The court has a discretion to either condone the delay or refuse to
entertain the application for review.

A court of review has no jurisdiction to increase a sentence—Haasbroek 1969 (1) SA 356 (O).
Sentences may be increased on appeal only. If the sentence imposed by the magistrate's
court is legally wrong, the appropriate and legal sentence must be substituted for it, even
though it could result in a heavier sentence than the sentence previously imposed by the
magistrate—Hiemstra 807.

The court of review may impose the proper sentence but would normally refer the matter
back to the lower court for the imposition of a suitable sentence in the presence of the
accused Zulu 1967 (4) SA 499 (T).

Exclusion of unconstitutionally obtained evidence

The Constitution demands a fair trial for any accused person and presiding officials are
tasked with ensuring that trials are conducted fairly. Ultimately, if evidence is obtained in a
manner that violates any right in the Bill of Rights, it must be excluded if the admission of
that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice s 35(5) of the Constitution; Pillay 2004 (2) SACR 419 (SCA).

The court of review may, by virtue of its judicial powers of review, exclude such evidence if
the presiding official has exercised his or her discretion in allowing the evidence in an
irregular manner which affected the fairness of the trial. In Key v Attorney-General, Cape of
Good Hope Provincial Division 1996 (4) SA 187 (CC), Kriegler J summarised the powers of
exclusion in the following manner:
At times, fairness might require that evidence unconstitutionally obtained be
excluded. But there will also be times when fairness requires that evidence, albeit
obtained unconstitutionally, nevertheless be admitted.

The exclusion of evidence improperly obtained is within the power of all courts and not only
within the jurisdiction of courts of review or appeal.

When will a full court of a division hear an appeal?

When an application for leave to appeal in a criminal case is heard by a single judge of a
division, whether the judge sat with or without assessors, and granted under s 316, the
court or judge or judges granting the application shall, if they are satisfied that the questions
of law and of fact and the other considerations involved in the appeal (such as public
importance) are of such a nature that the appeal does not require the attention of the
Supreme Court of Appeal, direct that the appeal be heard by a full court (s 315(2)(a)). The
criterion for allowing an appeal to the full court is largely whether the appeal is without
obvious difficulties (Sinama 1998 (1) SACR 255 (SCA)).

Any such direction by the court or a judge of the division may be set aside by the Supreme
Court of Appeal, on application (by way of a petition addressed to the President of the
Supreme Court of Appeal) by the accused or the director of public prosecutions or other
prosecutor within 21 days (now 30 days, by virtue of a Supreme Court directive) after the
direction was given (or such longer periods as may on application to the Supreme Court of
Appeal on good cause be allowed)—s 315(2)(b).

The full court of a division hearing an appeal has the same jurisdiction as the Supreme Court
of Appeal in relation to the powers provided in s 322 s 316(3)(e). Section 322 prescribes the
powers of the court of appeal.

An appeal against the judgment or order of a full court of a division given on appeal in terms
of s 315(3) shall be allowed only with the special leave of the Supreme Court of Appeal on
application either by the accused or by the prosecution.

Only matters heard by a division of the High Court as a court of first instance may be
adjudicated by a full court of a division as a court of appeal. A full court of a division does
not have jurisdiction to hear unsuccessful appeals that originated from lower courts and
were heard by a division of a High Court as a court of appeal.

The purpose of a party having to apply for leave to appeal is to limit appeals to those which
have reasonable prospects of success.

Besides reasonable prospects of success, an applicant requesting special leave to appeal

must show that there are special circumstances which merit a further appeal to this court.
Additional factors or criteria that could play a part in the granting of leave include:
a) where the appeal raises a substantial point of law;
b) where the matter is of very great importance to the parties or to the public;
c) where the matter turns on factual issues, but the prospects of success are so strong that
the refusal of leave would result in a manifest denial of justice; and/or
d) that there are compelling reasons which justify the hearing of the appeal—Director of
Public Prosecutions: Gauteng Division, Pretoria v Moabi 2017 (2) SACR 384 (SCA);
Director of Public Prosecutions, Gauteng v Grobler 2017 (2) SACR 132 (SCA).

Section 16(1)(b) of the Superior Courts Act provides that there is no appeal to the Supreme
Court of Appeal on a decision given by any division of the High Court on an appeal to such
division, unless with the special leave of the Supreme Court of Appeal—see also s 17(3) of
the Superior Courts Act, which prescribes that special leave must be applied for within 30
days after the decision sought to appeal against, was delivered.

Appeal on special entry of irregularity or illegality to the Supreme Court of Appeal

Irregular proceedings or proceedings not according to law in a lower court may be taken on
review before the High Court but there is no review procedure for irregular proceedings
occurring in a trial by a higher court. The Criminal Procedure Act makes provision for a so-
called special entry whereby the accused may, if convicted, take his or her case to the
Supreme Court of Appeal.

This procedure is necessary because an irregularity will often not appear from the record,
and the accused will therefore not be able to rely on it if he or she takes the case on appeal.
With a special entry, the accused may request during or after the trial that the irregularity
be entered on the record.

Naturally, the trial judge himself or herself will have to consider the application based on
the alleged irregularity and this may influence him or her in his or her decision. In Van der
Westhuizen 2011 (2) SACR 26 (SCA) the court held that where a special entry in terms of s
317(1) of the Criminal Procedure Act is sought on the basis that the cross-examination of a
State witness was unjustifiably curtailed, the court can avoid making a special entry by
recalling the witness for further cross-examination.

In De Vries 2012 (1) SACR 186 (SCA) at [29] the court reiterated that the purpose of a special
entry is the recording of irregularities affecting the trial but not appearing from the record.

Two types of irregularity are possible; those relating to the trial, and those that arise during
the trial:
the first type of irregularity, for example, is where an assessor gained extra-curial
information detrimental to the accused, which will have to be proved by evidence—
Matsego 1956 (3) SA 411 (A); Suliman 1969 (2) SA 385 (A);
the second type of irregularity which arose during the trial is a refusal of the judge to allow
proper cross-examination, as in the case of Heslop 2007 (1) SACR 461 (SCA), could justify a
special entry, but also an ordinary appeal on grounds of infringement of an accused's right
to a fair trial.

Reservation of questions of law

It often happens that in the course of a trial in a division of the High Court, a question of law
relative to that particular case may arise and the court itself may be uncertain about the law
regarding a particular point, e.g., whether specific evidence is admissible, or whether certain
actions constitute a crime cf Coetzee 1977 (4) SA 539 (A); Goliath 1972 (3) SA 1 (A).

If such a question of law arises during a trial in the High Court, the court may, of its own
motion or at the request of either the prosecutor or the accused, reserve that question for
the consideration of the Supreme Court of Appeal. The court then states the question
reserved and directs that it be specially entered in the record and that a copy of it be
transmitted to the registrar of the Supreme Court of Appeal—s 319(1).