Criminal Practice

Summary of Exams supplemented by course packs

The right to be brought before a court within 48 hours

S50 of the CPA must be read with s35 (1)(d) of the Constitution. S50 contains
fundamental right that are entitled to freedom from arrest. It provides that if you are
arrested with or without a warrant the person must be brought as soon as possible to a
police station or to any other place mentioned in the warrant and there detained for a
maximum period of 48 hours unless brought before lower court and further detention is
authorized by the court.

Must appear on court day when 48 hour period expires provided it is within court hours. If
expires on public holiday or weekend the must appear before end of next court day before
4 o’clock.

Powers of police to search, seize, arrest, to obtain evidence

Searches

Without warrant

The police official in terms of Section 22 of the Criminal Procedure Act of 1977 may
without a search warrant search any premises FOR THE PURPOSE OF SEIZING ANY
ARTICLE referred to in Section 20 (i.e. concerned in the commission or suspected
commission of an offence, may afford evidence thereof, or to be used in the commission
of an offence) IF:

1. The person who may consent to the search of the premises consents to search and
Seizure of the article in question
OR
2. (a) If he believes that on reasonable grounds a search warrant will be issued to him
under paragraph 21(l)(a) if he applies for such warrant
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AND
(b) The delay in obtaining such warrant would defeat the object of the search.

Entering a premises for purposes for interrogating and obtaining a statement

Without a warrant

S26 empowers a police official in the investigation of an offence or alleged offence where
he or she reasonably suspects that a person who may furnish info with regard to such an
offence is on any premises. Such police official may without a warrant enter such
premises for interrogating such a person and obtaining a statement from him provided
that police officer shall not enter any private dwelling without the consent of the occupier.

A person is entitled to refuse a police official access to the premises in these

circumstances in terms of Section 26. Although he is entitled without a warrant to enter
premises in the course of investigation of an offence and if he suspects a person on the
premises may furnish him with information regarding the offence, he may only interrogate
and obtain a statement from such person (Namely James) if the occupier of the private
dwelling (namely Mrs M) consents to his entering the premises for this purpose.
S27(1) deals with resistance against entry and search. It provides that the police official
who is lawfully entitled to search any person or premises may use such force as may
reasonably be necessary to overcome any resistance. They may break any door or
window of such premises. Before officials may use such techniques they must audibly
demand admission to the premises and notify the purpose for which they seek to enter the
premises.

S27(2) provides that police officers are not required to audibly demand admission where
the police officer concerned is on reasonable grounds of the opinion that any article which
is the subject of the search may be destroyed or disposed of if the provisions of s27(1) are
complied with e.g. with drugs. This is known as the ‘no knock’ clause.

Ito s28 (1) an unlawful search by a police official constitutes an offence and a
compensation order may be made against him.

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Questioning of the accused

The accused is not obliged to answer questions. Suspects and accused have a
fundamental right to remain silent (Section 35 (1)(a) and Section 35 (3)(h) of the
Constitution). He cannot however refuse to be questioned but can only refuse to answer
the questions.

His refusal to answer questions cannot be held against him at a later trial as his ​right to
remain silent is enshrined in the Constitution and the accused need not assist the State in
any manner whatsoever to prove his guilt.

The only information which he ​i​s obliged to give to the investigating officer is his name
and address - Section 41 of the ​CPA.

When will one advise a client to make a statement?

Under certain circumstances it is indeed advisable to make a statement, particularly when

your client intends pleading not guilty and has a feasible defence. It could be in his
interest to place same on record as soon as possible to exclude the subsequent argument
of the Prosecutor of same being a recent fabrication. Having a statement on record could
also dissuade the prosecutor from proceeding with the prosecution when he is obliged to
weigh up the probabilities of a conviction.

Example​: Jack Jones has the right to remain silent. He should advise the
police-investigating officer that he has consulted with his attorney and that he prefers not
to make a statement at this stage. He should further inform the officer that he elects to
make a statement either to his attorney or if so advised, only at trial. Also client should be
advised that if he makes a statement, it could be used against him at trial.

Securing the release of the accused and the necessary instructions required

Information to be obtained in initial telephone conversation

Usually from a relative

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-Obtain information as to when the accused was arrested?
-Obtain information as to the name and telephone number of the investigating officer who
had arrested the accused,
-The name of the unit to which the investigating officer is attached,
-The name of the police station or prison whereat the accused is detained,
-The facts and circumstances of the alleged offence,
-The personal particulars of the accused, including details as to his residential address,
the duration of his habitation thereat, details as to his employment, income, assets,
previous criminal convictions, evidence of good character, details of probability of
conviction.
-Further information regarding his medical condition and information as to the amount of
bail the family would be able to raise.

From the investigating officer

-In which court will the accused appear or has he already appeared.
-Whether there will be an objection to any proposed bail application.

BAIL

After-hours bail

S50(6)(b) provides that there is no more after hours bail subject to two exceptions.

o S59(1)(a) It is only for certain minor offences that can get police bail (from a
high ranking officer)
▪ Police bail is for any offence that is not in Part II or II of Schedule 2
e.g. theft under R2500, common assault, <115g of Dagga

o For more serious offences can get prosecutor bail.

❑ S59A deals with prosecutor bail
❑ It authorizes the DPP to authorize a prosecutor to release an accused
on bail. There are two important points.

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 ❑ Only a prosecutor authorized by DPP, which in practice is all of them,
can release an accused. (prosecutor is often at police station)
❑ The prosecutor can only release after consultation with the
investigating officer.

▪ Prosecutor bail is for Schedule 7 offences e.g. public violence, CH,

Assault GBBH, bestiality
▪ Call the charge office and speak to the investigating officer. Ask
whether there is any objection to bail. Then contact the prosecutor.
Inform him that you want to bring a bail application after hours and tell
him about the attitude of the investigating officer. Find out what time
the magistrate will be available to hear the application. Inform the
investigating officer. Go to court and bring the application.

o There are three new schedules i.e. 5,6,7

▪ Schedule 5 offences are more serious e.g. attempted murder, drugs
> 50000, syndicate fraud, murder, rape. For such offences there is no
after hours bail.
▪ Schedule 6 is the most serious. It consists of aggravate versions of
sch5 offences e.g. murder of a cop, murder of witness testifying
against you, gang rape, rape of a minor or retarded person. For such
offences there is no after hours bail.
o Summary
▪ Schedule 2 (not parts I and II) – police bail
▪ Schedule 5 – no after hours bail
▪ Schedule 6 – no after hours bail
▪ Schedule 7 – prosecutor bail.

The prosecutor and police bail stands until the first court day and a court is empowered to
either extend bail, or if it deems it inappropriate to do so, to consider the application for
bail by the accused.

Onus

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Although the decisions of the WLD in ​Attorney-General (WLD) v Van Heerden & Another
1994 (2) SACR 469 (W) ​and Ellish & Another v Attorney-General (WLD) 1994 (2) SACR
579 (W​) are to the effect that no onus properly so called, saddles either the State or the
accused in a bail application, Section 60(11) of the Criminal Procedure Act no 51 of 1977
(as amended), has imposed an onus in certain cases. If the accused is charged with an
offence referred to in Schedule 5 there is an onus on the accused to satisfy the Court that
the interests of justice do not require his detention in custody. For schedule 6 offences the
accused must satisfy the court that exceptional circumstance exist which permit his or her
release. These applications must also be heard by a regional court.

Schedule 5 includes the offence of murder involving the use of a dangerous weapon or
firearm. Assuming that the accused is charged with murder involving the use of a
dangerous weapon or firearm, he will indeed bear the onus to prove that he will appear at
Court at the trial. If such is not the case then, in terms of the aforementioned decisions, no
onus will be placed on either the State or on the accused.

Where the state does not opposed bail for a schedule 5 or 6 offence the prosecutor ito
s60(2)(d) is obliged to explain why not.

Facts of importance in a bail application

1. That the accused has a fixed residential address.

2. That the accused has a fixed residential address.
3. That the accused has fixed employment and the time period he has been
employed
4. The character of the accused.
5. The nature of the crime.
6. The seriousness of the sentence which may be passed.
7. The probability of conviction – strength of state’s case
8. Accused’s ability to travel and to settle in a foreign country.
9. The time period the accused will spend in custody awaiting finalisation of his trial.
10. Evidence that he will not communication with state witnesses or is not able to do.
11. His or her financial status and the amount of bail which he will be able to pay.

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 12. Will release disturb public order or security or will safety of the accused be
jeopardised.

Appeal against refusal to grant bail

Section 65(2) of the Criminal Procedure Act reads as follows:

​ n Appeal shall not lie in respect of new facts wh​i​ch arise or are discovered after the
"A
decision against which the appeal is brought, unless such new facts are first placed be
fore the Magistrate or regi​ o
​ nal​ Magistrate against whose decision the appeal is brought
and such Magistrate or regional Magistrate gives a decision against the accused on such
new facts."​

As the Attorney I will first on my own evaluate if the new facts have any relevance to the
application for bail and if I am not satisfied I will proceed with the appeal on the recorded
facts.

If the new facts are relevant and have a bearing on the application for bail I will not
proceed with the appeal but will request that the new facts be placed before the same
Magistrate who heard the original bail application for him or her to consider first and then
give a ruling thereon. Only after he/she shall have given a negative ruling on the new
facts can I then proceed with the appeal

If do appeal it lies to a single judge of HC – can be a local division.

Procedure

1. Draft a notice of appeal

2. Draft a power of attorney and arrange for the accused to sign and initial every
page thereof
3. Notice of appeal should be served on the clerk of the court, the DPP and the
magistrate.
4. Obtain reasons from the magistrate

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 5. Obtain a copy of the court proceedings from the clerk of the court or from
transcriber
6. brief counsel furnishing him/her with a copy of the court record, the magistrate
reasons and the notice of appeal.
7. As soon as heads received from counsel the case record should be compiled
and indexed, after which it should be served on DPP and the registrar of HC.
8. A notice of set down will be received from registrar. Inform counsel and attend
court at hearing.

Grounds to justify cancelling bail

In terms of section 68 of the ​CPA any court before which a charge is pending in respect of
which an accused has been released on bail may order that bail be cancelled, upon
information on oath that:
(a) the accused is about to evade justice or is about to abscond in order to evade
justice; or that
(b) the accused interferes or threatens or attempts or has interfered or threatened or
attempted to interfere with witnesses; or that
(c)​ the accused defeats or has defeated or attempted to defeat the end of justice; or that
(d)​ he or she poses a threat to the safety of the public or of a particular person; or that
(e) the accused has not disclosed or has not correctly disclosed all his​/​her previous
convictions in the bail procee​d​ings or where ​his/her true list of previous convictions has
come to light after ​his​/​her release on bail;
(f) further evidence has since become available or facts have arisen, including the fact
that the accused has fu​rn​ished false information in the bail proceedings, which might have
affected the decision to grant bail; or
(g)​ it is in the public interest​/​interest of justice to do so.

Handing the police docket to the presiding officer during a bail application

The role of the court during a bail application is inquisitory and there should be no
objection if he peruses the docket. It should also be kept in mind that the magistrate who
hears the bail application, may in any case not preside in the trial of that case.

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METHODS OF DISPOSING OF A CASE / KEEPING IT OUT OF COURT

Strategy to keep matter out of court

Make representations to the Senior Public Prosecutor or Attorney General either to

withdraw the charge if your client has already been charged, or not to institute criminal
proceedings against him.

A well motivated representation is required, preferably in writing. If necessary a request

for a personal consultation can be made to either of the above authorities. In practice, a
personal discussion or consultation may suffice.

Example 1:

Factors in favour of client

(1) ​The personal interests of the accused that is humanitarian grounds: medical
practitioner for 15 years, unblemished record, marrued with three children. Financial ruin,
etc. If matter proceeds to Court even if found not guilty., Medical Council proceedings to
follow, etc.

(2) ​Interest of the community – not in the interest of the community to lose a medical
practitioner, occurred over a period of 4 years and a relatively amount of money is
involved. Only 5 occasions whereas he must have seen hundreds of patients during the
time. Monies have been repaid, etc. etc.

iii) ​On the Law​: the possibility of an acquittal is very real as the legal position is not clear
and it can be argued that he did not have the necessary intention etc.
1. Representations to the SP and DPP

Example 2:​

Points to be brought to attention of DPP re drunken driving case

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The attorney would point out to the prosecutor that client was stopped at a roadblock and
there is no evidence of drunken driving;
That the alcohol content in his blood was low; and
That the district surgeon found him to be lightly under the influence of liquor at the time
when the blood was drawn.

2. Indemnities

3. Admission of guilt fine

PREPARATION FOR TRIAL

The Charge Sheet

The charge is the point of departure in respect of a trial. The charge against the accused
is a written formulation of the offence concerned. The charge must inform the accused of
the case which the state is bringing against him. (​Hugo)

The charge sheet can be obtained by writing a formal letter to control prosecutor or
prosecutor in charge of the case. The letter must set out the case name, and case
number (if have), court date, and remand date.

The charge sheet must be analysed to ascertain

definitions of words;
meanings given to words and concepts in practise as laid down in Case Law;
presumptions applicable;
competent verdicts;
investigate onus of proof;

This is in order to establish the nature and scope of the charge.

Section 85 (objection to charge sheet)

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The attorney would object to the charge sheet by giving the prosecution reasonable notice
of the intention to object to the charge and stating the ground upon which the objection is
based.

In this instance the objection will be based on the fact that the State does not disclose the
identity of the complainant. Reasonable notice may be waived by the Prosecutor and the
Court may, on good cause shown, dispense with such notice or adjourn the trial to enable
such notice to be given.

Access to police docket

An accused is entitled to access to the docket after a trial date has been arranged. This
includes access to the statements of witnesses. The state is entitled to resist a claim by
the accused for access to any particular document in the docket on the grounds that such
access is not justified for the purposes of a fair trial or that there is reasonable risk that
access would lead to the disclosure of the identity of an informer or state secrets or that
the disclosure may lead to the intimidation of witnesses or otherwise prejudice the proper
ends of justice.

If the state refuses access to the docket then can apply to the court on the basis of
Shabalala​ and the state will be obliged to set out the grounds for non-disclosure.

Documents in the police docket required for preparation of trial: ​Statements of witnesses,
SAP diary in docket, medical report/s

Conflict of interest

You will, as a consequence of there being a conflict of interest between the two accused,
not be able to act on behalf of either of them. The information which you have received
from both parties is directly in conflict with that of the other and, besides being privileged,
one would not be able to cross-examine either of the parties because of this clash of
interests. Furthermore a statement made by one accused can not be used against
another accused. You will accordingly be obliged to withdraw from acting on behalf of
both parties.

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PLEA

❑ S106 sets out the type of pleas that are available to an accused who is sane and
willing to plead.

1. Guilty (s112)
2. Not Guilty (s115)
3. Autrefois Convict
4. Autrefois Acquit
5. That he has received the state presidents pardon - s84(2)(j) of Constitution.
6. That the court has no jurisdiction because the offence took place outside its
jurisdiction. ​(O’Carrol)
7. That he has been discharged from prosecution ito s204 relating to immunity
granted to state witnesses.
8. That the prosecutor has no title to prosecute. (private prosecutions)
9. Prosecution may not be resumed or instituted owing to an order by a court under
s342A(3)(c) relating to where there have been unreasonable delays in completion
of proceedings such that court has ordered that the case be struck off the roll.

❑ S106(2) provides that two or more pleas may be pleaded together except that the plea
of guilty may not be pleaded with any other plea to the same charge.
❑ S106(3) provides that where an accused pleads other than a plea of guilty or not guilty
he must give reasonable notice to prosecutor but this can be waived. This is so the
prosecutor can prepare.
❑ S106(4) provides that 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 be entitled to demand that he be acquitted or be
convicted

Plea of Guilty

❑ There are two separate procedures, one for serious and one for less serious offences.

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Less serious offences

S112(1)(a) provides that an accused person may be convicted solely on a plea of guilty.

This happens where the presiding officer is of the opinion that the offence does not merit
imprisonment or any other detention without the option of a fine or that it will result in a
fine of less that R1500. ​(Addabba 1992 T)

More Serious Offences

S112(b) – accused not legally represented s112(2) – legally represented

S112(1)(b) deals with the situation where a sentence of imprisonment or any other form of
detention without the option of a fine is likely to be imposed or a fine in excess of R1500.

In such situations the accused will not be convicted on the plea alone. The presiding
officer will engage in an inquisitorial process. The presiding officer must question the
accused with reference to the alleged facts of the case to ascertain whether he admits to
allegations in the charge to which he has plead guilty. If the presiding officer is satisfied
that the accused is guilty of the offence to which he has pleaded, he may convict and
sentence him.

The questioning must cover all the elements of the alleged offence ie with theft did he
intend to deprive the person of his ownership permanently. The accused must also be
whether he understands the nature of the charge against him.

Written statement

The court may instead of questioning the accused convict the accused on the basis of the
statement ito s212(2) provided that the court is satisfied that the accused is indeed guilty
of the offence to which he has entered into a guilty plea.

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S112(2) covers the situation where the accused or his legal advisor hands a ​written
statement into court where he or she sets out the ​facts which are admitted and on which
the plea of guilty is based. (​B 1991 N​) The court has the right to ask further questions if
they are necessary to gain further clarity on any issue in the statement.

A mere repetition of the elements is not satisfactory. It must be made in a first person by
accused. Paragraphs and chronological order is important. Must admit knowledge of
wrongfulness during commission of the crime.

Plea of not guilty

Not Guilty (s115)

If an accused person enters of plea of not guilty the presiding officer may ask him if he
wishes to make a statement indicating the basis of his defence (s115(1))

Where the accused does not make a statement or makes one and it is not clear from the
statement to what extent he denies or admits the issues raised by the plea, the court has
a right to ask questions in order to narrow the issues so that they know what issues are
being placed in dispute. (s115(2)(a)) If accused make certain admissions the prosecution
will not have to prove them.

What is contemplated is an objective attempt at determining the facts which are really in
dispute, with if necessary questions for clarification. ​(Seleke 1980 A)

The state is required to prove an admission made by the accused in his s115 statement
unless the admitted on questioning by the magistrate and recorded ito s220.

Change of Plea

Application to set aside a conviction ito s113: Change of plea from guilty to not guilty

S113 allows the correction of a plea of guilty (ito s112(1),(a) s112(b), s112(2) to not guilty
where the guilty plea was tendered incorrectly i.e if the court is

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 a. in ​doubt whether the accused is in law guilty of the offence to which he
or she has pleaded guilty
b. if it is alleged or appears to the court that the accused does ​not admit an
allegation in the charge
c. that the accused has incorrectly admitted any such allegation or
d. that the accused has a valid defence to the charge or
e. if the court is of the opinion for any other reason that the accused's plea of
guilty should not stand.

This can take place at any stage of the trial before sentence is given.

Example:

The client must be advised that he erroneously pleaded guilty and has a valid defence to
the charge and that you intend to make application to Court in terms or Section 113to
have the conviction set aside and in terms of the common law he also has such right (see
Botha vs Attorney General Transvaal).

Procedure

At the next hearing the Court will be advised by the attorney that the accused intends
bringing an application in terms of Section 113 to correct the Plea of Guilty to one of not
guilty. The accused will have to give evidence under oath giving a reasonable explanation
as to why he pleaded guilty and indicating his misunderstanding and mistake in doing so.
The Prosecutor will be afforded an opportunity of cross-examining him. The Magistrate is
also entitled to question the
accused. Any other evidence may be led by the defence in support of the Application -
After closing his "case" the Court will be addressed by firstly the defence in support of the
s113 application (on the merits) and then the State whereafter the Magistrate will make a
finding.

If the application is successful, the court proceedings will continue as is normal where a
plea of not guilty was tendered at inception. However, the Prosecutor may agree with the

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facts admitted by the Accused and close his case, whereafter you may do the same. This
will be the case where in the s113 application the accused admits guilt for another
offence. The matter will then proceed to sentence.

If the application of the defence was unsuccessful, the matter would then immediately
proceed to sentence.

The accused wishing to withdraw his Plea of Guilty roust give a reasonable explanation as
to why he had pleaded guilty and now wishes to change his Plea. A reasonable
explanation could be, for example, that the pica was induced by fear, fraud, duress,
misunderstanding or mistake. The mistake could be simply that he did not understand the
legal process and/or his rights. If he fails to give an explanation the Court would be
entitled to hold him to his Plea of Guilty, If he does give an explanation there is no onus
upon him to convince the Court of the truth of his explanation. Even though his
explanation be improbable the Court is not entitled to refuse the Application, unless it is
satisfied not only that the explanation is Improbable, but that beyond reasonable doubt it
is false If there is any reasonable possibility of his explanation being true, then he should
be allowed to withdraw his Plea of Guilty.

Change of plea to guilty

The accused is entitled to change his plea from not guilty to guilty at any stage during the
trial and before judgment is given. By offering a plea of not guilty, the accused may make
formal admissions ito s220 and then change his plea from not guilty to guilty. The plea
can only be changed with the approval of the court and PP cannot accept on behalf of the
court. Permission for such a change of plea will normally only be granted if the accused
or his rep succeeds in convincing the court that his original plea was based on some kind
of misunderstanding.

If state proves a prima facie case against your client.

Change of plea to guilty is one way of attempting to prevent the state form leading
evidence which could be detrimental to the accused and which may influence sentencing.
If satisfied that the State will succeed to prove its case, the Accused should be advised to

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change his plea to one of guilty or close his case and if he refuses to do so and insists on
giving evidence denying his involvement in the offence, the attorney would be obliged to
withdraw as his Attorney of Record.

Before evidence is led

Before evidence is led, the Court is bound by the prosecutor's acceptance of a plea of
guilty to a lesser offence and, providing that all the requisite admissions in respect of such
lesser offence are made, the Court is bound to convict on such lesser offence ​(S v
Ngubane 1985 (3) SA 677 (A) at 683).

If the Magistrate is of the view that the offence falls within the purview of Section
112(1)(a), he would be entitled to convict client of assault common on the basis of his plea
of guilty alone. Alternatively, the Magistrate might convict the accused on the strength of a
written statement tendered by the legal representative on behalf of the accused. Such
statement must contain the facts underlying the plea, as opposed to the exposition of
legal conclusions and must not be a mere regurgitation of the averments in the charge
sheet.

The Magistrate may also, in his discretion put any question to the accused in order to
clarify any matter raised in the statement aforesaid. After conviction the prosecutor would
be entitled to address the Court -in respect of sentence and prove the accused's list of
previous convictions, if any. The defence will also be entitled to address the Magistrate on
sentence, or to lead evidence in mitigation. Thereafter sentence will be passed.

The plea of not guilty who admits in his instructions to advisor that he is guilty

Defending the guilty client

It will be ethical for you to act on his behalf should he plead not guilty. You have a duty to
assist client to the best of your ability.

One however, must ensure that the Court is not misled and no questions may be put to a
witness to the effect that the accused did not commit the offence. One is however entitled

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to question witnesses on the identity of the assailant and circumstances under which
observations were made, the circumstances under which the offence was committed and
the credibility of the witnesses

When asked for s115 explanation

One would have to exercise the accused's right to remain silent and advise the Court that
the accused is not prepared to make a statement in terms of Section 115 disclosing his
defence.

Client admits the crime but believes witness will not be able to identify but after evidence
the witness does manage to do so

A plea of not guilty will be tendered on behalf of client. In terms of Section 115 the court
will be advised either in writing or verbally that the Accused does not wish to divulge his
defence. As soon as the Accused is positively identified the Attorney may cross-exam the
witnesses on the reliability of their identification. It may not be put to the witnesses that the
Accused was not present or that he was not the person involved. An Attorney should
encourage his client, if the evidence stands, to change-his plea. If client does not accept
this advice his case will have to be closed immediately after the State's case.

Plea bargaining process – s105A

A prosecutor who is authorised thereto and an accused who is legally represented may
enter into a plea and/or sentence agreement. Before doing so the prosecutor must
consider

1. The nature of the offence

2. The personal circs of the accused
3. Previous convictions
4. Interests of the community.

The prosecutor must also consult with the investigating officer and the complainant.

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The agreement should be in writing setting out the accused’s rights and the full terms of
the agreement incl substantive facts. It shall be signed by the prosecutor, the accused
and his legal rep.

The prosecutor must inform the court of the agreement and the court will confirm with the
accused that there was such an agreement and that it complies with the above
prerequisites. The court shall require that the accused plea to the charge and that the
contents of the agreement be disclosed to the court. The court will confirm with the
accused that he admits the contents of the agreement.

If the court is not satisfied with the agreement or that anything has been omitted the court
will enter in a plea of not guilty and order the trial start de novo before a new magistrate.

If the court is satisfied the court may convict the accused and proceed with sentencing.

If the court is satisfied that the sentence is just then the court will impose the sentence. If
the court believes that the sentence is not just then the court will inform the state to that
extent. If they agree he can impose another sentence that he thinks is just. If they don’t
that he will enter a plea of not guilty and refer it to trial de novo.

The section can only be used once per matter.

Section 77, 78 or 79

Section 77-79 provide for those instances where an accused person suffers from a mental
illness or defect.

Section 77 provides for a procedure in terms of which the court may at any stage of the
proceedings, order that the matter be inquired into and be reported in accordance with the
procedure set out in s79. Ito Section 77 the onus is on the state to prove that the accused
can understand the proceedings.

Section 78 refers to an inquiry as to whether the accused was criminally responsible at

the time of the commission of the offence.

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If your client is potentially insane then you should immediately be alert to the fact that
section 77, 78,79 will apply. You will have to enlighten the court as to the position and if
necessary obtain medical evidence eg through the district surgeon and request the court
to direct that the matter be enquired into and be reported on in accordance with the
provisions of Sec 79.

REQUEST FOR AN ADJORNMENT OR POSTPONEMENT

The party requesting an adjournment must not be negligent. The three relevant principles
are:

1. That it is in the interests of society that someone who is guilty be duly found guilty and
should not escape due to a mistake which could have been prevented had the case been
postponed.
2. That the accused is deemed to be not guilty and entitled, when charged, to be tried
speedily.
3. That the postponement or adjournment must be necessary of practicable in respect of
the specific case.

Submissions opposing granting of a further postponement

Example 1:

Once indicted an accused person has always been entitled, in terms of the common law,
to be tried with expedition; (S v Geritis 1966 (1) SA 753 (W)). The right to a speedy trial
has now been constitutionally enshrined, in terms of Section 25(3)(a) of the Constitution
Act no 200 of 1993. A delay of eight months occasioned by the complainant's absence
from the country, would offend against the accused's right to a speedy trial. The charge is
of a serious nature and ought not to be left hanging over the head of the accused for such
a lengthy period, given his rights as hereinto for mentioned.

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1. I would advise the Court that the accused is entitled to a speedy finalization of his
trial;
2. The matter has been postponed on a number of occasions as a consequence of the
State witnesses not being present and once again they have failed to attend Court;
3. The accused is being prejudiced in that this is the fifth occasion on which he has
appeared in Court;
4. The accused has already been in custody for 7 months and will be severely
prejudiced by a further postponement of three months;
5. Other personal circumstances of the accused can be placed on record - eg. his
inability to work, support his family, legal costs etc.
6. It is highly unlikely that after this period of time the State will be in a position to locate
their witnesses. It also indicates a lack of interest on the witness’s side relating to this
matter.

Example 2

1. The State had sufficient time and opportunity to obtain the presence of the further
witnesses at Court.
2. The witnesses had been subpoenaed and no satisfactory explanation has been
offered for their non-attendance.
3. The Accused is entitled to a speedy trial.
4. The Accused has been prejudiced by not only having to take off time from work, but
also to pay for his additional legal expenses and travelling expenses toand from Court.
5. You therefore oppose the State's application for a postponement as it would be
contrary to the interests of justice for the Accused to be again required to attend Court, as
having pleaded he is entitled to the finalisation of the trial soonest.

COURSE OF CRIMINAL TRIAL

Steps to be followed from arrival at court assuming client wishes to plead guilty

Example:

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The attorney will have to firstly introduce himself to the Magistrate prior to the
commencement of court.

The matter is called by the Public Prosecutor and the charge put to the accused. You will
either plead on behalf of your client which he will confirm or alternatively the Accused will
plead and you will confirm-that same is in keeping with your instructions.

The Attorney will then hand in the Section 112 statement; the Accused will be asked if he
confirms the contents thereof. The Attorney will invariably be asked if there is anything
further to say on the merits and the Accused will be convicted.

The Prosecutor will then proceed to prove previous convictions or alternatively advise the
court that the Accused has no previous convictions. If the convictions are proved, the
Accused will be requested to admit same.

The Magistrate will then invite the Attorney to address him on sentence and this may be
done by either the Attorney addressing the court from the side-bar, by means of evidence
by the Accused under oath and/or means of evidence from other persons. Thereafter the
State will be invited to address the court on sentence and may also call evidence to place
aggravating factors on record.

Prior to sentence a Probation Officer's report may be requested and the matter postponed
and made available to the court.

Once this procedure has been finalized the Magistrate will sentence the Accused.

Course of a criminal trial where the accused pleads not guilty

1. The name of the accused is called out by the prosecutor.

2. The accused takes up position in the dock.
3. The prosecutor puts the charge to the accused.
4. The magistrate asks the accused if he understands the charge.
5. The magistrate asks the accused if he wishes to plead.
6. The accused pleads “not guilty”.

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 a. The attorneys stand and confirm the plea.
b. The accused gives his plea explanation either orally or in writing.
c. The accused is asked whether he wishes to make any admissions
d. The admissions are confirmed by the accused.

States Case

7. The prosecutor may address the court ito s150

8. The prosecutor calls his first witness.
a. The attorney should ask for permission to sit
9. The witness is sworn in.
10. The prosecutor leads his first witness (es).
11. The attorney cross-examines
12. The prosecutor re-examines
13. The court can pose questions and if it does, grant the prosecutor and the defence the
opportunity to pose questions flowing from the questions by the court.
14. The state closes its case

Defence Case

15. The attorney can now

a. ask for discharge of the accused
b. close the case for defence without calling witnesses and without letting the
accused testify.
c. let only the accused testify.
d. let only witnesses testify.
e. let the accused and witnesses testify in which case the accused should usually
testify first.
f. Change plea
16. If the defence intends to lead evidence the attorney may address the court ito s151,
whereafter the procedure in 8-13 above is followed.
17. The defence then closes its case

Closing Arguments

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These take place irrespective of whether the accused has testified.

18. The prosecutor addresses the court

19. The attorney presents his argument
20. The prosecutor replies (usually only in respect of matters of law)

Judgment

21. The court may now

a. Find the accused not guilty and discharge him
b. Convict the accused

Sentencing

22. The state proves previous convictions is applicable

23. The accused may present evidence in mitigation and the state may present evidence
in aggravation. This evidence is subject to cross-examination by the prosecutor or
attorney respectively.
24. The attorney and thereafter the prosecutor addresses the court on sentence
25. The court may call for any further evidence in order to determine a proper sentence.
(s112(3) and s274 of the CPA)
26. The court then sentences the accused.

Options open to defence after state has closed its case

1. Change of Plea​. An attorney will advise his client to consider changing his Plea from
Not Guilty to that of Guilty if it appears that the State has built up a strong case against his
client and that his client will not be able to anything that could possibly refute the State's
case. The advantage is that the Court may take this into account when considering an
appropriate sentence.

2 ​Appl​y for the dischar​g​e of thee accused in terms of Section 174 if you are of the opinion
that insufficient evidence has been placed on record to allow a reasonable man to convict

24
the accused. The credibility of witnesses does not come into consideration at this stage.
Such an application can always be launched in order to establish the Magistrate's attitude
towards the evidence which has been placed before him at that point in time.

3. Close the case for the defence. This step should be taken with caution and only when a
practitioner is convin​c​ed that there is no ​prima facie case on record at that point in time.
Should the defence not give evidence to rebut that which has been placed on record by
the State, the Magistrate will be entitled to accept the State evidence. This step should
only be taken once you have discussed it with your client, pointed out the pros and cons
and received his instructions to act accordingly.

The question which arises in these circumstances is whether the State succeeded in
establishing a prim a facie case in the sense of a case requiring an answer, failing which
such prim a facie case might become conclusive against the accused. Having regard to
the fact that the accused's version amounts to a confession of theft, he cannot enter the
witness box because he is bound to be convicted on his own version if he does so.

Should it appear during the consultation with client that he is clearly, lying and is obviously
guilty it may be required to close the defence's case in order not to mislead the Court.
This step may also be taken if you are convinced that there is insufficient evidence on
record to convict your client. One may also be obliged to take this step if the evidence
against your client is so damning that it is unlikely that any good will come from the
accused placing his version before the court.

4. ​Lead evidence by the accused or on behalf of the accused Evidence will have to be led
if there is a prima facie case on record and it is necessary for your client to answer the
various allegations made by the state against him. The accused and any other witnesses
who can support his case may be called.

What if state refuses to close their case after not being given a postponement

You address the Magistrate and request that in the light of the State Prosecutor refusing
to close the State's case that the ​Court deems the State's case closed​. Once the
State's case has been deemed to be closed you may apply in terms of Section 174 for a

25
discharge of your client on the basis that no case has been made against him upon which
a reasonable man may convict as there was no evidence tendered to implicate your client
in the commission of the offence / or close defence case and ask for the acquittal of your
client

What if state after plea of not guilty cannot adduce any evidence

As the accused has already pleaded to the charge the Prosecutor can no longer withdraw
same. The State will accordingly have to lead evidence and close the case thereafter. If
no witnesses are available it will most probably occur that the State will close their case
whereafter an application for the discharge of the accused can be brought or one can
close the case on behalf of the accused.

Assuming client had plead not guilty but now wished to plead to a lesser charge

Once an accused has pleaded, he becomes entitled to a conviction or an acquittal. This

means that the state may not decide to withdraw the case against the accused if it, for
instance experiences difficulty in finding witnesses.

Example:

Client should be advised that, in view of the fact that he has already pleaded not guilty, he
is entitled, in terms of Section 106(4) and Section 108 of the Criminal Procedure Act no 51
of 1977, to demand that the issues raised by his plea of not guilty be tried and that he be
acquitted or be convicted in terms of such plea.

Example:

The only evidence, save for the evidence of the complainant, is that contained in the
medical report. This will not be sufficient for a conviction on the charge or any competent
verdict thereon. Accordingly the State has insufficient cognisable evidence to present in
order to secure the conviction of client and the Magistrate would, under these
circumstances, be bound to acquit him in terms of his plea of not guilty. Client should thus

26
be advised not to tender a plea of guilty to assault common, and to demand that the
issues raised by his plea of not guilty be tried forthwith.

EVIDENCE

Leading questions

During the leading of a witness in chief, leading questions are permissible to establish
introductory facts and facts which are not materially in issue. During cross-examination,
the cross-examiner is entitled to put leading questions to the witness. During
re-examination the general prohibition against leading questions applies.

Examples

That his name is W; that he is 70 years of age; that he is unemployed; that on the date
alleged he was present at the Rialto Cafe, Cape Town.

Cross-examination of state witness

What is your duty in respect pf the version of your client in so far as it differs from the
witness?​ –
It is the duty of an attorney to ensure that the version of the accused is put to a witness
particularly where same differs from the witness's version of events. Each and every
difference should be put to the witness. Should you fail to do so the Magistrate will be
entitled to accept the version of the witness as being correct.

What if the witness is not cross-examined at all? - Should the witness not be
cross-examined his evidence can be accepted in its entirety.

What if during lunch the prosecutor, witness under CE, and the complainant are
discussing evidence in the prosecutor’s office? - the conduct of the Prosecutor is indeed
an irregularity as nobody is entitled to discuss evidence with a witness once he/she is
under oath. At that po​i​nt the witness belongs to the Court.

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When the matter resumes the practitioner will question the witness as to whether such a
discussion in fact took place. If he confirms then the practitioner will be entitled to question
as to the contents of the discussion e.g. who said what and what was discussed. If the
witness denies the discussion having taken place the attorney will be able to put it to him
that he overheard such a discussion but will not be ab​l​e to take the matter very much
further.

In the event of the witness confirming the discussion it could very well affect his credibility
as a witness and the value that the magistrate will attach to his evidence. It could in due
course found a ground for appeal/review.

Admissions

Informal v Formal Admissions

The formal admission is the confirmation of an unfavourable fact which is done during the
case and which is intended to place that fact beyond dispute. This differs from an
informal admission which can also be made during legal proceedings, but usually takes
place outside the court and does not place the fact which is admitted beyond dispute.
The formal admission, just as judicial notice and presumptions, provide proof without
evidence having been presented. The informal admission on the other hand must be
proved in court and it therefore constitutes evidence regarding the fact which is being
admitted.

Formal Admissions

Section 220

Section 220 of the CPA makes provision for formal admissions in criminal cases. It
provides that an accused or his legal adviser may in criminal proceedings admit any fact
placed in issue at such proceedings and any such admission shall be sufficient proof of
such fact.

Example:

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The written report confirming any injuries to the Complainant may be handed in by
consent between the parties as admissions in terms of Section 220.

HOWEVER it is imperative prior to making the admissions that client fully agrees with the
content of the document and instructs that he has no objections thereto. Only if client has
no objections may you agree to the State Prosecutor handing up the J88 form to me
Court as an exhibit whereafter you will confirm same is handed up by consent and admit
the content in terms of Section 220. The Court will confirm with client that the said
admissions are made with his consent. Thereafter the State will be entitled to close its
case.

Informal Admissions

There are no formalities that need to be complied with in respect of informal admissions. It
must only be proved that the admission was made voluntarily in the sense that there was
no promise or threat which led to the admission being made.

s219A repeats the CL requirement that admission must have been made voluntarily and
lessens the burden when the admission was made or confirmed to a magistrate and
reduced to writing.

Confessions

A confession is an unqualified admission of guilt, which if it were made in court would

have amounted to a plea of guilty.

The requirements for admissibility of a confession are contained in s 217(1). The state
must prove that the confession is admissible.

NB: If it is an admission the provisions relating to confessions are simply not applicable.

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If the prosecutor wishes to submit as evidence a written statement made by your client to
prove that your client confessed to the crime then you must determine whether the
statement complies with s217 and 219A.

In terms of Section 217 and 219 A the statement:

1​.​ Must be shown to have been made freely and voluntarily.

2. The accused must have been at the time in his sober senses.
3. There must have been no undue influence exercised on him to induce him to make
such a statement.
4. The accused must have been informed of his constitutional right to remain silent.
5. The accused must have been informed of his constitutional right to require that his
legal representative be present when the statement is taken.
6. The statement must have been made before a Magistrate or a Peace Officer -
Even if all of the requirements are satisfied the confession will still be inadmissible
if it was made to a peace officer other than a peace officer who is a magistrate or
justice of the peace unless subsequently confirmed and reduced to writing before a
magistrate or justice of the peace. If it was made to a non-commissioned officer
then it is inadmissible. There is an assumption that it made and reduced to writing
before
7. The accused must have been informed that the statement will be used in evidence
against him.

NOTE: Non-commissioned - (sergeant, inspector, constable) Commissioned captains,

superintendent, directors, commissioner.

Cautionary Rules

These are not provisions of law but rather rules of practice which have been created by
the judiciary to serve as an aid in the evaluating of certain classes of evidence, namely
that which is regard in legal practice as potentially unreliable due to either the subject or
the type of witness concerned. They have the compelling character of legal provisions in

30
the sense that non-compliance therewith will normally lead to the setting aside of the
courts finding.

4.4.1 Single Witness - A cautionary rule applies in the case of a single witness namely
that the evidence must be satisfactory in each material respect, unless there is corrobo
ration. A court can convict on such evidence.

4.4.2 Police trap - A cautionary rule exists as invariably the trap has a financial interest in
the form of a reward from the Police. Bear in mind State vs Cronje - where it was held that
dishonesty and fraud in the use of the trap will nullify the

4.4.3 Accomplices - Their evidence should be treated with caution as the possibility exists
that the witness is trying to pass his share in the offence onto the Accused.

4.4 A child witness in a sexual offence - Two cautionary rules will apply, namely, the
witness being a child and the court must establish whether imagination has not played a
part and, secondly, as the offence is one of a sexual nature where various motives can be
present in the mind of the witness.

Admissibility of Evidence

Pointings out: Even if a statement by the Accused is inadmissible, evidence that he

pointed out certain things or places will be admissible even if they result from such
inadmissible statement (Section 218(1) of the CPA) The value of the evidence of what has
been pointed out lies in the deduction that the Accused has knowledge of such an item or
place. The evidence which is found is admissible.

This could be subject of constitutional decision in due course. There is legal opinion to
the effect that an accused should be warned in terms of judges rules and furthermore
advised that he is entitled to have an attorney present on each and every occasion that he
is requested to point out objects/places.

Photographs: A photograph is sometimes regarded as real evidence. Section 232 of the

CPA provides that a party may, with the leave of the court, produce a photograph of an

31
object instead of producing the object itself in evidence. One must attempt to ascertain
which supporting evidence is required in each specific case to prove the photograph
concerned. Usually there will have to be evidence which shows where and by whom the
photograph was taken and the contents (persons and/or objects) will have to be identified.
In criminal matters the State normally produces a photograph album with the various
photographs and a key thereto and a Police photographer will give evidence that he
attended on the scene of the alleged offence and took the photographs in the album.

Hearsay evidence - ​Hearsay is evidence is admissible during a bail application. It is also

admissible if it is not offered as the truth. Admissible if the person who uttered the hearsay
will in any case be called by the State.

Opinion Evidence – The evidence is generally inadmissible as witnesses are there to

provide facts unless the witnesses opinion may be of material interest to court because
the witness is ​better qualified or in a better position to from an opinion then the
ordinary judicial officer. Reqs: 1. the witness must be competent to give an opinion
regarding the subject. 2. The ground for the opinion must be set out 3. The court must not
subject itself to the opinion of the witness. The court itself must make a finding on the
ultimate issue.

Expert Evidence – The opinions of an expert will be relevant more often that of a
layperson as an expert is specifically qualified to form an opinion. Reqs: 1. The expert
must be sufficiently qualified. 2. The facts upon which the opinion of the expert must
normally be stated. 3. The court is not obliged to accept the opinion of a witness as final,
in general also applies in respect of experts.

Compellable witnesses

It is presumed that every person is a competent and compellable witness.

1. Spouse - In terms of Section 196(1)(b) the wife is competent and ​compellable witness
for the defence. It is not effected where wife where complainant is child born from their
marriage – However, – she is not a compellable witness for a co-accused. She is

32
competent but not compellable for the state except for the offences listed in s195(1)
where the aim is the protection of the family.

2. Accused – can testify in his own case but can not be compelled by the state, court or
co-accused.

3. Co-accused – can testify in his own defence but cant be compelled by his co-accused.
This is not affected if the co-accused are spouses. A co-accused can only be called by
the state:
● if the charge is withdrawn,
● if he has pleaded not guilty and been formally acquitted and released
● co-accused pleads guilty (usually trials will be separated), if convicted but not
sentenced is compellable but desirable that wait until passing of sentence.
● separation of trial – can be done where both have pleaded not guilty.

4. Mental illness – not competent

5. Deaf mutes – competent

6. Children – not prohibited but practice that not competent

7. Officers of the court – judges not but theoretically attorneys, advocates are although
not encouraged.

General

Onus of Proof

The ground rule is that he who avers must prove. Therefore the state bears the onus of
proof in a criminal case, and the state must prove beyond a reasonable doubt all the
elements of the offence – action, the causal link, unlawfulness, mens rea.

Assault v Assault GBH

33
1 It is highly likely that your client will be convicted of assault with intent as two blows
were struck whilst he was enraged and this resulted in a serious injury, namely a fracture
of the jaw. Even although a weapon was not used the State could quite easily argue that
in the light of the aforegoing intention to inflict grievous bodily harm is clear. In order to
avoid such a charge I would however consult with the Public Prosecutor and attempt to
persuade him to accept a Plea of Guilty to common assault arguing that a weapon was
not used and the possibility exists that your client did not realise that such a serious injury
could have followed.

Informing the state of prior convictions

If prosecutor has SAP 69 which indicates that client has no previous convictions yet you
are aware that your client has previous convictions for a similar offence then the attorney
is under no obligation to inform the court about previous convictions of the accused if the
State does not prove it. It is the State's duty to prove and establish previous convictions. I
the circumstances it is advisable in one's address not to mention the record of the
accused in any manner -at best one could state: "the State has not proved previous
convictions". You may not in your address refer to previous convictions of the accused
and then state pertinently that he has no previous convictions. This is because you may
not mislead the court.

Effect of a theft conviction

A conviction of theft could prejudice Mr Scott in one or more or all of the following
respects:

-He could be precluded from being a director a company or a member of a close

corporation
-He cannot assume any office of trust
-He would have to disclose it in any application for a job which would have detrimental
effect on its outcome. It could effect him should he wish to emigrate.

34
- He may be denied credit
-He could go to jail for 12 months should he be convicted of any offence involving
dishonesty over the next five years.
-It could effect partnership prospects
-Reputable business houses would be reluctant to support his repairs business, ETC

Section 35(4)(a) – Forfeiture Order

The Court which makes an Order declaring an article forfeited to the State, within a three
year period from the date of the Forfeiture Order and on the application of any person
other than the accused who claims a right in terms of sub-paragraph (i) or (ii), inquire into
and determine any such right and grant relief in terms of this Section.

Section 31

In terms of Section 31:

(a) If no criminal proceedings are instituted in connection with the item seized, the item
seized be returned to the person from whom it was seized PROVIDED Mrs M may
lawfully possess the same as confirmed by her authentic documentation;
(b) If the person may not lawfully possess the item seized due to falsified documentation
the item seized shall then be forfeited to the State.

SENTENCING

Types of sentences

❑ S276 lists permissible sentences –

❑ 1. Imprisonment
❑ 2. Committal to a treatment clinic
❑ 3. A fine
❑ 4. Correctional Supervision - What is correctional supervision? It is set out in
s276(1)(h)&(r). It is essentially house arrest. It will also often involve house arrest,

35
 monitoring and community service. It is where you need a heavy sentence but prison
would be too disruptive. A court can order a maximum of 3 years. You can go to work
from 7AM to 7PM but you are confined to your house from 7PM to &AM and on
weekends. It is a revolutionary sentence.

S v Omar 1993​ – correctional supervision is an excellent alternative to prison.

S v R 1993 A – correctional supervision is not a soft option and it is a jail sentence.

The magistrate must specify in detail the specifics of correctional supervision.

❑ These sentences can be modified by being 1. Suspended on various conditions 2.

Conditional or unconditional postponement. 3. caution or discharge

❑ A ​suspended sentence is an effective sentence suspended for a period (max 5 years)

on the condition that should the convictee not be found guilty of a similar crime within
that period, the execution of the sentence is suspended. Other positive or negative
conditions can be imposed. If you break the condition then you receive the
punishment. The condition must be certain and unambiguous and must relate to the
crime that the accused was charged with i.e. not theft and drunken driving. It hangs
over his head like a sword.​ ​(Allart 1984 T)
❑ A ​postponed ​sentence is when the sentencing is postponed for 5 years. The accused
may be ordered to appear at court at a later date before the expiry of the period. If the
offender is not called to court, or if the court finds that the conditions have been met,
no sentence is imposed and for record purposes the result of the trial is a caution.
❑ S297(1)(c) allows a court to discharge any offender with a ​mere caution. ​The
discharge has the effect of an acquittal, but the conviction is still recorded and counts
as a previous conviction.

S300 – Compensation Order

Section 300: Where a person is convicted of an offence which has caused damage to or
loss of property belonging to some other person the Court may, upon the Application of
the injured person or of the prosecutor acting on the instructions of the injured person,
forthwith award the injured person compensation for such damage or loss. In order to

36
prove damages the Court may refer to the evidence and proceedings at the trial and may
hear further evidence either under oath or by way of affidavit.

An award made under this Section has the effect of a civil judgement in the Magistrate's
or Supreme Court (whichever is applicable). The usual civil steps to obtain satisfaction of
the judgement are available to your client. The amount is limited to 300000 in RC and
60000 in DC

The reqs are:

1. the offence of which the person has been convicted must have caused damaged to the
property of another. No claim for potential loss.
2. the compensation award can only be applied for after conviction.
3. the aggrieved party himself or prosecutor on his instructions must apply that a certain
amount must of compensation must be awarded to him.
4. A separate investigation of a civil nature is determined as in case of civil claims.

Example:

You as attorney, will advise your client that the accused will first have to be convicted and
that thereafter an a​pplication can be made, either by himself personally, or you as the
attorney acting on his behalf, or the prosecutor requesting ​the court to award
compensation​ for the damage or loss.
Your client will have to place you in possession of the quotation relating to the repairs and
you will have to be prepared either to prove same by way of an affidavit or by leading an
expert witness (being the person who prepared the quotation) in court in ​order to satisfy
the court as to quantum.
The effect of such order is the same as a civil judgment of that court.

Competent Verdicts

Culpable Homicide

Competent verdicts on a charge of ​Culpable Homicide​ are the following:

37
 1. The offence of assault with intent of do grievous bodily harm.
2. The offence of robbery.
3. 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 1935, concealing
the fact of its birth.
4. The offence of common assault.
5. The offence of public violence.
6. The offence of pointing a firearm, air gun or air pistol in contravention of any law.

Murder

Competent verdicts on a charge of ​murder​ are the following:

1. Murder
2. Culpable manslaughter
3. Assault with the intent to do grievous bodily harm.
4. Common assault.
5. Public Violence.
6. Pointing of a firearm.
7. Exposing an infant with intent to conceal the fact of its birth.
8. Disposing of the body of a child with intent to conceal the fact of its birth.

FACTORS IN MITIGATION OF SENTENCE

❑ The court will take into account the 3 factors known as the triad of sentencing. 1.
Personal circumstances of the accused. 2. Seriousness of the offence. 3. Interests of
society.

1. Remorse:

1. Client pleaded guilty;

38
 2. Client co-operated with SAPS etc;
3. Client made a confession/incriminating statement;

2. Personal Circumstances​:

1. His age;
2. Dependents; Married-family
3. Income;
4. Education
5. Employment
6. First Offender
7. Clean driver's licence

3. Other "Penalty"

1. Client caused death of child or family member in case of Culpable

2. Homicide
3. Client loses his employment, promotion, increase, status, spouse;
4. Disciplinary investigation by employer;
5. Property (for example firearm) forfeited

4. Repayment of aggrieved party (Section 300):

1. Civil claim instituted insurance paid out

2. Insurance paid out
3. Stolen goods returned
4. Damages compensated

5. No previous convictions

6. Drunkenness

7. Provocation.

39
8. Influenced by others

9. Various sentences that may be imposed

10. Details of the offence

1. Circumstances under which he drove;

2. Damages minor;
3. Damages repaired, etc.

Placing evidence before the court

The evidence in mitigation can be led:

1. By means of a statement from the bar.

2. By means of evidence by the accused under oath.
3. By means of evidence of other persons.

Address Regarding Sentence

Must bear in mind the triad of sentencing:

1. The interest of society – disapproval and protection of the community

2. The offence – nature and seriousness
3. The accused – his personal circumstances

-Ideally court should try to find a balance between these three factors. ​What sentence
would society expect when balancing the Accused's personal circumstances with the
offence? Must note Objects of sentence: Retribution or prevention, deterrence and
rehabilitation (Accused hardly likely to repeat).
-Court should strive for consistency but not at the expense of individualisation.

-Admit the interest of society but state client still deserves special consideration.
-Give resume of evidence in mitigation stressing its quality.

40
-Refer to aspects which may affect discretion of the court – principles set out by writers.
-Suggest a sentence which you believe would be appropriate.

Precedents

Representations to avoid suspended sentence being implemented

You would set out:

1. The full personal circumstances-of he-Accused.

2. The fact that 2 years have elapsed since his last previous conviction.
3. The quantity of dagga was small - only one "pill".
4. If the Court viewed the matter so severely in this present instance, the Court would
not have imposed merely a fine with ALTERNATIVE of imprisonment, but direct
imprisonment without the option of a fine.-
5. The Court imposed a sentence having the effect of keeping him out of prison so it
would defeat the object of the sentence of a fine to now bring into operation the
suspended sentence.
6. If now imprisoned Accused will lose his job and all the disastrous effects thereof will
follow.

Representations re sentences other than direct imprisonment

Example 1

THUS: Ask for fine/suspended sentence.

AND: ARGUE ACCUSED NEEDS DRIVER'S LICENCE FOR WORK / NO

SUSPENSION OF DRIVER'S LICENCE NECESSARY / ADVERSE EFFECT OF
SUSPENSION OF DRIVER'S LICENCE ON EMPLOYMENT, ETC.

Example 2

41
The following sentences may be applicable:

a) ​A fine which can be coupled with suspended imprisonment.

This will have the effect of keeping the accused out of jail. It can be argued that should he
be imprisoned he will lose his job and will accordingly not be in a position to compensate
the complainant. A fine will also have a deterrent effect and also serve as punishment.

(b) ​A period of imprisonment suspended in its entirety for a period of time.

This can be made subject to certain conditions eg. that the accused repay the
complainant within a certain period of time.

(c) Periodical imprisonment​.

Although this is not quite in keeping with the accused's desire to remain out of jail, it is an
alternative in the event of the Court feeling that imprisonment is the only option. It would
at least have the effect of the accused being able to keep his employment and repay the
complainant.

(d) ​Correctional supervision in terms of Section 276(l)(h).

Such a sentence would allow him to continue with his employment, repay the complainant
and will also take into consideration the general rule that first offenders as far as possible
are kept out of prison. It has also been held that correctional supervision is a severe
punishment

Representations in order to avoid imprisonment where client cannot pay the sentence

The attorney can make application to the court to suspend the payment of the f​i​ne:

1​.​ until the expiration of a period not exceeding f​i​ve years; or

2. on condition that the fine is paid over a period not exceeding five years in
instalments and at intervals determined by the court.

42
This request will only be considered favourably if the accused is able to provide the court
with information which will convince it that, although the ​accused is unable to pay the fine
at that stage, he will be able to pay it if he is allowed to pay it off over a period or before a
specific date in future.

Strategy to reduce sentences (pleaded guilty)

Once your client has decided to plea guilty it is your obligation to do everything in your
power to obtain the lightest possible sentence for your client. This is usually done by
speaking to the prosecutor involved.

Married man who cannot afford to go to prison or give up his drivers licence

All attempts would be made to keep your client out of jail. You would accordingly suggest
that the court impose a heavier fine than the one before as well as a lengthier period of
suspended imprisonment.

This is however highly unlikely and you may have to resort to requesting the court to
consider correctional supervision in terms of section 276(l)(h). This would have the effect
of allowing your client to continue with his employment.

One may furthermore be obliged to request the court to consider a suspended term of
imprisonment subject to strict conditions eg your client having to undergo certain forms of
treatment. You may furthermore request the court to commit your client to an institution in
order to receive the required treatment.

As far as his driver's licence is concerned a request will be made that same not be
suspended or cancelled but endorsed.

Collision

43
The accused is a responsible and respected member of society who makes a valuable
contribution to society in general and his ,family in particular. To such a person direct
imprisonment would amount to a very drastic punishment not commensurate with the
gravity of the offence in the circumstances. The gravity of the offence is determined
primarily by the moral blameworthiness of the accused, and the consequences of the
offence are not necessarily decisive in this regard. What is of primary importance as far as
the accused's moral blameworthiness is concerned is the reason for the collision and the
extent of the accused's negligence causally related thereto. The accused's admission
regarding the drinks he had had before the collision is a neutral factor which does not
affect his moral blameworthiness at all. This is so because it has not been shown that his
drinking had any effect on his driving or in any other way contributed to the collision.
Furthermore, the accused ought not to be punished for something which is either not a
crime at all or, if it is, for which he has not been charged. Direct imprisonment will have a
drastic effect, not only on the accused, but also on his family, in view of the accused's
income a sentence other than direct imprisonment, such as a substantial fine, will provide
for all the objectives of punishment so that, direct imprisonment is not the only appropriate
punishment under the circumstances.

Collision killing a pedestrian

The following should be placed before the Court in mitigation of sentence:

Personal circumstances of the accused:

Age, family connections (dependants), his income, his type of work and for how long he
has been in employment, any organisations to which he belongs, his status in life etc.
Remorse:

He has pleaded guilty

He made a statement to the Police from the outset-cooperation.
He has contacted the family of the deceased and made f​i​nancial arrangements for
burying
the deceased etc

44
Penalt​y​:

He has suffered damage to his own vehicle and a possible civil claim will be instituted
against
him by the family of the deceased and he will lose his insurance cover as a consequence
of the
conviction.
He himself was injured
A passenger in his vehicle was injured
His licence will no doubt be endorsed with this conviction which will affect his
employability
(eg. If he wants to obtain a Public Drivers Permit)
He now has a previous conviction relating to a serious offence
Accused has suffered trauma and is now receiving psychiatric treatment.
No previous conviction - remind court of basic principle that first offenders should be kept
out of jail if possible.

The following ​aggravating circumstances​ will have to be countered:

(i) The prosecutor may wish to argue that alcohol played a role in this offence - client
has not been convicted of drunken driving and it is a known fact that sober drivers also
commit this offence namely culpable homicide with a motor vehicle
(ii) Prosecutor may argue that a motor vehicle is a dangerous instrument that is to be
driven with utmost care - whilst this is so, a small degree of negligence can have
consequences which far outweigh the degree of negligence.
(iii) Prosecutor may bring to the Court's attention the high rate of deaths involving
pedestrians - this should not be overemphasised by the Court as there is invariably
contributory negligence on the part of pedestrians
(iv) Prosecutor may argue that collision happened at a pedestrian crossing - while this is
so there is also a duty upon a pedestrian to exercise care while crossing at a pedestrian
crossing.
(v) Prosecutor may remind Court of media campaign - drive alive - this should also not
be over-emphasised as the degree of negligence in this particular matter was slight.

45
(vi) Prosecutor may also state that collisions cost the country excessive amounts of
money e.g. Traffic Officials being obliged to man the country's roads on a 24 hour basis -
this will have to be done in any event​,​ (etc, etc, etc)

APPEAL V REVIEW

Appeal

Against conviction

In order to decide whether to appeal must:

1. look at whether the court erred in drawing inferences from the evidence and/or in
finding with regard to the legal position.
2. Whether , it the conviction were to be set aside, it would not be replaced by a conviction
on another lesser offence.

The court will only interfere with the finding of the lower court on the facts if it is convinced
that the finding is wrong. Doubt is not enough.

Against sentence

Must be approached with great caution as sentencing is something which falls exclusively
in the discretion of the court and the court of appeal will not easily interfere. The basis
question is not whether the sentence is wrong but whether the trial court exercised its
discretion duly and judicially. The sentence must be such that it is ” shockingly
inappropriate” or causes a feeling of shock.

Review

❑ S24 sets out the grounds on which the High Court can review proceedings. The
fact that the grounds are set out means that they are circumscribed

46
 ❑ They are:
1. Absence of jurisdiction.
2. Interest in the cause, bias, malice or corruption on the part of the presiding
officer – lack of good faith or ulterior motive
3. Gross irregularity.
4. Admission of inadmissible or incompetent evidence or rejection of admissible or
competent evidence.

Look out for: excluding of admissible evidence, using inadmissible evidence, refusal to
recuse, curtailing of cross-examination.

Example:

Mr Scott has a right of appeal against the conviction and sentence. The basis being that
the State did not discharge the onus upon it. ie. no evidence that the video machine on Mr
Scott's premises was in fact the one stolen from Mr Abel's residence.

Alternatively Mr Scott can also have the conviction set aside through review proceedings
as the magistrate misdirected himself in several respects.

Procedure

Review (check)

a) Affidavit by accused setting out the irregularity in connection with the proceedings
so that the grounds, facts and circumstances are indicated which form the basis of
the setting aside of the findings.
b) Draw the notice of motion citing the presiding officer concerned as a respondent
and issue at the registrar of Supreme Court.
c) Serve the notice of motion and supporting affidavit on all interested parties.
d) The respondents are obliged to file the record and any opposing affidavits within 15
days of receipt thereof, whereafter the applicant may supplement its founding
affidavit within 10 days.

47
Appeal

1. Complete power of attorney and have it signed by the accused

2. Prepare notice of appeal
3. File the power of attorney and notice of appeal with clerk of the (criminal) court
within 14
days of conviction and sentence. ( The clerk of the court will furnish a copy to the
presiding magistrate.)
4. Apply for bail pending the Appeal (Where applicable)
5. Should the Magistrate file further reasons for sentence, amend the Notice of
Appeal, if necessary and serve timeously on the magistrate.
6. Apply for copy of record of proceedings and peruse court file to ensure record is
correct and Court file paginated.
7. Await notification of Set Down of Appeal from Attorney-Generals office
8. Advise Client of date of hearing
9. Where the attorney does not intend to appear himself brief counsel with copy
of record to peruse same and instruct Counsel to prepare Heads of Argument and
argue appeal.
10. Serve 2 copies of Heads of Argument timeously on Registrar and Attorney
General.
11. Attend Court on argument of Appeal.
12. If client not at Court, advise client fully of outcome thereafter.

If fail to comply with the time period in 3 above then an application for condonation for the
late filing of the Notice of appea​l will have to be brought. An Affidavit drawn by the
accused and supported by his attorney if necessary and vice versa must be utilized in
support thereof.

PRECEDENT –

NOTICE OF APPEAL

48
1. You are still in the court a quo ie mag court and therefore same case number.
2. You can appeal against either conviction and sentence or just sentence. (Read
the question careful)

SENTENCE

IN THE ​MAGISTRATE'S ​COURT FOR THE DISTRICT OF CAPE TOWN HELD AT

CAPE TOWN
CASE NO:
In the matter between:

C Appellant
and
THE STATE Respondent

NOTICE OF APPEAL

KINDLY TAKE NOTICE that the abovementioned Appellant hereby notes an appeal to the
Supreme Court of South Africa (Cape of Good Hope Provincial Division against the
sentence on a charge of culpable homicide by the learned Magistrate Mr ..
in the District/Regional Court of Cape Town held on ............ on the following grounds:

1. The learned Magistrate over-emphasised the seriousness of the offence and the
interests of society.
2. The learned Magistrate erred in finding that the interests of society can only be
addressed by direct imprisonment in the circumstances of this case.
3. The learned Magistrate erred in finding that motor vehicle accidents cause severe
harm to the economy without any admissible evidence to support such finding.

49
4. The learned Magistrate erred and misdirected himself in imposing direct
imprisonment on the basis that the death of a person cannot be determined in money
and, in so doing, over-emphasised the object of retribution in punishment.
5. The learned Magistrate erred and misdirected himself in finding that the Appellant
showed no remorse on the basis of the fact that he changed his plea to one of guilty only
after the State's case was closed.
6. The learned Magistrate erred and misdirected himself in finding that people such as
the Appellant ought to be removed from society and, in so doing, under-emphasised the
Appellant's personal circumstances.
7. The learned Magistrate erred and misdirected himself in failing to pay any heed,
alternatively sufficient heed, to the consequences of direct imprisonment upon the
Appellant, including the fact that the Appellant and his family would lose their home, under
circumstances where the learned Magistrate ought to have had regard to such factor as
one of the unavoidable consequences of the punishment imposed.
8. The sentence of five years' imprisonment is so excessive that it induces a sense of
shock.

DATED ON THIS THE 5TH DAY OF JANUARY 1996 AT CAPE TOWN

JOE BLOCK
Attorney for the Appellant

TO:
THE CLERK OF THE COURT MAGISTRATE'S COURT CAPE TOWN

IN THE REGIONAL COURT OF THE REGIONAL DIVISION NORTHERN TRANSVAAL

HELD AT PRETORIA

In the matter between:

JOHN SMITH APPELLANT
and

50
THE STATE RESPONDENT

NOTICE OF APPEAL

(a) Please take notice herewith that the abovementioned appellant intends to appeal to
the High Court, Transvaal Provincial Division, against the judgment and sentence brought
against him on 6 August 1997 in the Regional Court for Northern Transvaal, held at
Pretoria and on the following grounds:

[i] The honourable regional magistrate erred in finding the appellant guilty on the charge
of
rage.
[ii] The honourable regional magistrate erred in accepting the evidence of the
complainant
regarding the identity of the appellant under circumstances which made this difficult.
[iii] The honourable regional magistrate erred in accepting the evidence of the
complainant in
general in view of the fact that she contradicted herself on a number of occasions
regarding material aspects.
[iv] The honourable regional magistrate erred by not accepting the appellants^ version
as
reasonably true.
[v] The Sentence causes a feeling of shock.
[vi] The honourable regional magistrate erred by sentencing the accused to a period of
12
years imprisonment and thereby exceeding the jurisdiction of 10 years.

IN THE REGIONAL COURT FOR THE DISTRICT OF PORT ELIZABETH

HELD AT PORT ELIZABETH
Case Number: ​rcl/145/98

In the matter between:

C APPELLANT

51
and
STATE RESPONDENT

NOTICE OF APPEAL

BE PLEASED TO TAKE NOTICE that the ​abovementioned appellant hereby notes an

appeal to the Eastern Cape Division of the High Court of South Africa against his
conviction and sentence in the Regional court at Port Elizabeth on the 2nd day of April
1998 on a charge of armed robbery.

The Appeal is noted on the following grounds:

Ad Conviction:

1​. The Magistrate erred in admitting the confession made by the appellant as evidence
and should have held that the confession was not freely and voluntarily made by reason
of the fact that the evidence disclosed that same was extracted by way of an assault.

2. The Magistrate, by his remark during the appellant's evidence in chief "only an idiot
would believe this" had prior to the conclusion of all evidence already made up his mind to
disbelieve the appellant. This was grossly irregular.

3. The Magistrate erred in accepting the identif​i​cation of the Appellant by the witness
Slabbert that the Appellant was the person who left the bank in haste and accordingly was
the robber.

4. The Magistrate erred in holding that the identification parade at which the witness
Slabbert identif​i​ed the appellant was properly constituted and held and should have found
that as Slabbert had advised the investigating officer that he had seen a photograph of ​C
in the paper prior thereto, same should not have been held. The Magistrate further erred
in finding ​Slabbert's​ identification of appellant to be reliable.

52
5​. The Magistrate erred in rejecting the evidence of the accused substantiated by his
witness ​D​ as being false when he has insufficient grounds to do so.

Ad Sentence:

The Magistrate, in sentencing the appellant to ten years imprisonment:

1. Failed to take into account the personal circumstances, including the age, of the
appellant, the fact that the appellant was a first offender and that the appellant had led an
exemplary life until the time of the offence.
2. Imposed a sentence that induces a sense of shock.

DATED AT PORT ELIZABETH ON THIS THE 18TH DAY OF JULY 1998

XYZ ​Per:
Appellant's Attorneys 10 Cherry Street
Port Elizabeth

NOTE: The refusal of a witness to take the oath is not a ground of appeal

PRECEDENT – S115 STATEMENT

10.1 In the Regional Court for the District of PRETORIA held at PRETORIA

Case No: RC1/15/99

In the matter between:

THE STATE
and
GEORGE JACOBS
STATEMENT IN TERMS OF SECTION 115 OF THE CRIMINAL PROCEDURE ACT,
1977
I,GEORGE JACOBS, do hereby declare that:

53
1​. I am the accused in this matter and I understand the nature of the charge against
me.
2. I hereby plead not guilty to the charge.
3. I admit that:
a) On the 21​st​ of July 19991 was at a tavern in ​Proes​ Street, Pretoria.
b)​ I admit that I struck the deceased one blow on the head with an iron bar.
c) I admit that I struck the blow subsequent to the deceased having stabbed me with a
kni​ ​fe ​and acted in self defence.
4. I admit that the blow to the head of the deceased caused his death and admit the
contents of the post-mortem report ​ofDr Strauss, dated the 22nd of July 1999 as being
true and correct.
5. I furthermore admit the contents of the police photo album as correctly depicting the
scene of the incident as on the day in quest​i​on.

IN THE REGIONAL COURT FOR THE DISTRICT OF PORT ELIZABETH HELD AT

PORT ELIZABETH CASE NO: 123/00

IN THE MATTER BETWEEN

The State and Mr A

STATEMENT IN TERMS OF SECTION 115

I, Mr A, do hereby declare that

1.
I am the accused in this matter and understand the nature of the charge against me.
2.
I hereby plead not guilty to the charge.
3.
I admit that:

54
1​. On the 1​st of February 2000 and at the Pub and Grub, Port Elizabeth, I struck the
deceased one blow in the face with a fist.
2. I struck the said blow whilst I was involved in a fight with the deceased and in self
defence.
3. I admit that the deceased is Mr X.
4. I admit that he died at Port Elizabeth on 1 February 2000.
5. I admit that the cause of death was a brain haemorrhage caused when the deceased
struck his head against a rock when he fell.
6. I admit that the deceased sustained no further injuries from the time that he was
taken from the scene of the incident until such time as he died at the hospital.
7. I admit as being correct the contents of the medico-legal report of ​Dr ​Angev that is
dated at Port Elizabeth on this the 2​nd​ of February 2000.

___________________
MR A

do hereby declare that:

i) I am the accused in this matter and I understand the nature of the charge against me.
ii) I plead not guilty.
iii) I admit that on the 24th day of December 1993 I stabbed the complainant once in the
chest with a knife, causing an open wound
iv) I aver that I stabbed him in self-defence during the course of a fight when the
complainant was armed with a knife.
v) I confirm that the admissions may be recorded as such in terms of s220

STATEMENT IN TERMS OF SECTION 115 of ACT 51 of 1977

55
1. I, JOHN DLEPU, hereby plead not guilty to the charge as set forth in the charge
sheet.
2. I admit that I entered the premises of XYZ Stores on the 1st of April 1997.
3. I admit that an electric razor was found in a kitbag in my possession outside of the
store and that the said razor was the property of the Complainant store. I deny that I had
the intention to steal the razor and aver that same must have found its way into the kitbag
by an error on my part. (Any reasonable explanation can be accepted)

DATED AT PORT ELIZABETH ON THIS THE 4th DAY OF JULY 1997

JOHN DLEPU

10.1 In the Regional Court for the District of PRETORIA held at

PRETORIA
Case No: RC1/15/99 In the matter between:

THE STATE

and

GEORGE JACOBS

STATEMENT IN TERMS OF SECTION 115 OF THE

CRIMINAL PROCEDURE ACT, 1977

I,GEORGE JACOBS,
do hereby declare that:

1. I am the accused in this matter and I understand the nature of the charge against
me.

2. I hereby plead not guilty to the charge.

3. I admit that:

a) On the 21​st​ of July 1991 was at a tavern in ​Proes​ Street, Pretoria.

56
 b)​ I struck the deceased one blow on the head with an iron bar.
c) I I struck the blow subsequent to the deceased having stabbed me with a
knife ​and acted in self defence.

4. I admit that the blow to the head of the deceased caused his death and admit the
contents of the post-mortem report ​of Dr Strauss, dated the 22nd of July 1999 as
being true and correct.

5. I furthermore admit the contents of the police photo album as correctly depicting the
scene of the incident as on the day in quest​i​on.

6. I furthermore admit as being true and correct the report, dated the 24th of July 1998,
of ​S.​Pathologist, relating to the blood of the deceased being found on the iron bar.

7. I furthermore admit the fingerprint report of Sergeant ​Thyus, of the South African
Police Service, as being true and correct.

The admissions referred to hereinbefore can be formally recorded as being admissions in

terms of Section 220 of the Criminal Procedure Act

DATED at PRETORIA on this the 31st day AUGUST 1999.

GEORGE JACOBS

PRECEDENT - S112(2) STATEMENT

In the Magistrate's Court for the District of PIETERMAR1TZBURG held at

PIETERMARITZBURG. (Or Mooi River)
Case No 123/99

In the matter between

THE STATE

57
and
MR NAIDOO
STATEMENT IN TERMS OF SECTION 112 (2) OF THE CRIMINAL PROCEDURE ACT,
1977

I, Mr Naidoo do herby declare that:

1. I am the accused in this matter and I understand the nature of the charge against me.
2. I admit that on the 23rd of March 1998 I was the driver of motor vehicle ND 345 and I
was driving same on the road between Pietermaritzburg and Mooi River, a public road
within the area or jurisdiction of the above Honourable Court.
3. I furthermore admit that the said vehicle was bought to a halt by myself at a road
block and that within 2 hours of driving the said vehicle a blood sample was drawn from
my body and was correctly analyzed.
4. The alcohol content of the said blood sample, expressed in grams per 100ml of
blood, was, 11%.
5. I admit that at the time of driving and at all relevant, times hereto I was aware of the
fact that it is an offence to drive a motor vehicle whilst the alcohol contents of ones blood
exceeds ,08 per cent.
6. I accordingly plead guilty to the charge.
DATED at PIETERMARITZBURG on this the 10​th​ of June 1998.
MR NAIDOO (8)

In the Magistrate's Court for the District of Johannesburg Held at Johannesburg

Case Number 5/95
In the matter between:
Slate
and
A

Statement in terms of Section 112(2)

58
I
A

do hereby declare that:

1. I am the accused in this matter arid I understand the nature of the charge
against me
2. I plead guilty to one count of fraud as set forth in the Charge sheet, relating to the
offence committed on 25/12/1993
3. I admit that on the 25th of December 1993 I received a telephone call from one Sgt E
who stated that he was on duty and was suffering from a severe bout of influenza and
could not consult with me at that point in time. He described the symptoms and I was
satisfied that he was indeed suffering from influenza and I accordingly believed that
medication was required in the circumstances. I thereafter telephonically issued a
prescription to a local pharmacist who I understand provided the relevant medication to
Sgt E.
4. ,l admit that I thereafter submitted an account in respect of the telephone call to the S
A Police Services Medical Aid Fund and I received the sum of R35-00 from the said fund
in respect of the said conversation.
5. I admit that at all times relevant hereto I was aware of the fact that I was not entitled to
payment of the said monies as I did not consult personally with the said police official and
that I was furthermore aware of the fact that a telephone call does constitute a
consultation.
6. I knowingly admit that the relevant Medical Aid Fund was prejudiced in paying me the
sum of R35-00 to which sum I was not entitled.
7. I admit that my actions were wrongful and unlawful and that 1 intended to defraud
the Medical Aid Fund of the sum of R35-00.
8. I accordingly plead guilty to the charge.

DATED AT JOHANNESBURG THIS THE 17TH DAY OF JANUARY 1994

59
The Prosecutor accepts a Plea of Guilty in respect of common assault and the Section
112(2) Statement can read as follows:

I, A Student, do hereby declare that:

(a) I am the accused in this matter and I understand the nature of the charge against
me.
(b) I plead guilty to common assault.
(c) I admit that on the third day of March 1996 I struck the complainant, Another Student
two blows with my fist.
(d) I admit that my actions were wrongful, inlawful and intentional and I accordingly
plead guilty to common assault.

DATED AT CAPE TOWN THIS THE 15TH DAY OF SEPTEMBER 1996.

SIGNATURE OF ACCUSED

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF PORT ELIZABETH HELD AT

PORT ELIZABETH
CASE NUMBER:
In the matter between :
THE STATE
and
JOHN DLEPU (Accused)

STATEMENT IN TERMS OF SECTION 112(2) of ACT 51 of 1977

I, JOHN DLEPU, do hereby declare that:

1. I am the Accused in this matter and understand the nature of the charge against me.
2. I admit that on the 1st of April 19971 entered the premises of XYZ Stores with the
intention of effecting certain purchases.

60
3. I removed an electric razor from a shelf and thereafter placed same in a kitbag. I
then passed through the pay-point without paying for the razor and was arrested in the
parking lot.
4. I admit that I did not intend paying for same and that I had the intention to steal the
razor.
5. I accordingly admit that my actions were wrongful, unlawful and intentional and I
plead guilty to the charge of theft.

DATED AT PORT ELIZABETH ON THIS THE 4th DAY OF JULY 1997

JOHN DLEPU

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF PORT ELIZABETH HELD AT

PORT ELIZABETH
CASE NO: 15/123/97
In the matter between:
THE STATE
and
B JOHN
STATEMENT IN TERMS OF SECTION 112(2)
BJOHN
declare that:

1. I am the accused in this matter and I understand the nature of the charge against
me.
2. I admit that on the 12th January 19971 was the driver of a motor vehicle with
registration letters and number CB 123 which motor vehicle I was driving on Cape Road,
a public road within the area of jurisdiction of the above Honourable Court.
3. I admit that whilst driving the said vehicle the alcohol content of my blood, expressed
in grams per millilitres of blood was 0,12 grams.
4. I admit that I was at the time of driving aware of the fact that it is a criminal offence to
drive a motor vehicle whilst the alcohol contents of one's blood exceeds ,08 percent, and I
accordingly admit that my actions were wrongful and unlawful.

61
5. I furthermore confirm that a blood sample was drawn from my body within two hours
1?'f driving of the said vehicle and that same was correctly analysed
6. I accordingly plead guilty to the charge

DATED AT PORT ELIZABETH THIS 20TH DAY OF NOVEMBER 1997

…………..
BJOHN

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF WYNBERG HELD AT

WYNBERG
CASE NO: 2/545/97
In the matter between
THE STATE
versus
MR X

STATEMENT AND ADMISSIONS IN TERMS OF SECTION 112(2) OF THE CRIMINAL

PROCEDURE ACT 51 OF 1977

I, the undersigned, MR X, do hereby declare that:

1. I am the Accused in the abovementioned matter and I fully understand the nature of
the charge against me.
2. I plead guilty to a contravention of Section 122(l)(a) of Act 29 of 1989 i.e. driving a
motor vehicle whilst under the influence of intoxicating liquor.
3. I hereby make the following formal admissions in amplification of my plea aforesaid:
(i) On the 30th of June 1997 I was the driver of motor vehicle CA 257 on Main
Road, Wynberg, a public road in the district of Wynberg.
(ii) Prior to driving my motor vehicle I had consumed intoxicating liquor to wit 10
double brandies.

62
 (iii) At the time of driving my motor vehicle my faculties were impaired by the
consumption of the intoxicating liquor to such an extent that I could not drive my
motor vehicle with the same skill and safety, as I would have been able to if I was
sober, and my driving ability was impaired.
(iv) I know that it is wrong to drive a motor vehicle whilst being under the influence
of intoxicating liquor.
(v) I was involved in an accident at the time of the incident.
(vi) I thus committed the offence to which I am today pleading guilty.

DATED AT WYNBERG ON THIS 14TH DAY OF JULY 1997.

SIGNATURE OF ACCUSED

Basic shoplifting

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF JOHANNESBURG HELD AT

JOHANNESBURG
CASENO:A3019/98

In the matter between:

THE STATE
and
JANET JACKSON The Accused

STATEMENT IN TERMS OF SECTION 112(2) OF ACT 51 OF 1977

I, the undersigned, JANET JACKSON, do hereby declare that:

1.
I am the accused in the abovementioned matter and fully understand the nature of the
charge preferred against me.
2.

63
I hereby voluntarily and without any undue influence plead guilty to the said charge.
3.
I hereby make the following formal admissions herein:

(i) On the 30 June 1998,I was at Edgars Stores, Eloff Street, Johannesburg,
within the
jurisdiction of the above Honourable court, where I usually shop to pay my account
and
to make further purchases.
(ii) Whilst browsing around the shop after paying my account, I removed 3x gold
necklaces from the display shelf and held same in my hand until I went to try on a
jacket.
(iii) When doing so, I put the 3x gold necklaces in my jeans pocket.
(iv) Thereafter I put the jacket back on the shelf and proceeded to leave the shop
fully aware that I still had the necklaces in my jeans pocket.
(v) I knew that the necklaces with a value ofR300,00 belonged to Edgars Stores
and that I
had no right or permission to remove same from the store without paying therefor.
(vi) I accordingly admit that my actions were wrongful and unlawful.
(vii) I further admit that I knew that I was committing the offence to which I am
today
pleading guilty.
(viii) I knew that my actions were punishable by law.

DATED AT JOHANNESBURG THIS 27 DAY OF MARCH 1998.

ACCUSED

IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF ​GERMISTON

HELD AT GERMISTON

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 Case no
123/98
In the matter between:

THE STATE

and
CLIENT ACCUSED

STATEMENT IN TERMS OF SECTION 112(2) OF ACT 51 OF 1977

I, the undersigned, CLIENT, do hereby declare as follows:

COUNT 1

(a) I am the ​accused in this matter and I understand the nature of the charge against
me. I voluntarily plead guilty to a charge of culpable homicide.

(b) I admit that on the day mentioned in the charge sheet I was the driver of motor
vehicle XYZ234GP on ​Rissik Street, a public road within the magisterial district ​of
Germiston
(c) I admit that whilst driving the said vehicle I failed to stop at a pedestrian crossing and
thereby collided with Mr X, a pedestrian, who at the time was crossing the road.

(d) As a consequence of the said collision Mr ​Rissik sustained bodily injuries which
caused his death.

(e) The deceased sustained no further injuries from the scene of the collision to the
state-mortuary where a post-mortem was carried out by the forensic pathologist.

(f) I furthermore confirm the contents of the post-mortem report of the said pathologist
which indicates that the deceased died as a consequence of multiple injuries which
I admit he sustained in the said collision.

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(g) I furthermore confirm that the collision was occasioned by the negligence of myself
in that I failed to keep a proper lookout and should have seen the deceased whilst
he was crossing the road and should have taken adequate steps to avoid the said
col​l​ision with him.

COUNT 2

I the undersigned​.​ Client, do hereby declare as follows:

(a) that I refer to the contents of sub paragraph ​(b) herein before and conf​i​rm the
contents thereof

(b) I admit that at the time of driving the aforesaid motor vehicle the alcohol content of
my blood, expressed in grams per 100ml blood was more than ​0.08 gms per 100ml
being 0.12g​m​s per 100ml.
(c) I admit that a blood sample was drawn from my body within two hours of driving the
said vehicle, the ​blood sample was correctly drawn and thereafter correctly
analysed.

(d) I admit that at the time of driving I knew that it is an offence to drive a motor vehicle
on a public road whilst the alcohol contents of one's blood exceeds ​0.08 gm per
100ml of blood and I accordingly confirm that my actions were wrongful and
unlawful

DATED at ​GERMISTON​ this the 27th day of July 1998.

CLIENT

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