CRIMINAL PROCEDURE – CPR3701

Section 1.1.1
A regional Court may try all crimes except treason in terms of Section 89 of Act 32 of
1944.

Section 1.1.2
The process is extradition

Section 1.1.3
Interrogation

Section 1.1.4
The Constitution provides the right for a suspect to remain silent. The purpose of this
is the Constitutional right not to incriminate oneself

Section 1.1.5
Certificate nolle prosequi

Section 1.2.1
The prosecution has the burden of proof in criminal matters

Section 1.2.2
The jurisdictional threshold set in Section 78(2) is met when there is either an
allegation of criminal incapacity with some indication of the reasons

Section 2 .1.1
In terms of Section 18 of Act 51 of 1997, the right to institute a prosecution, unless
some other period is expressly provided by law, lapse after a period of 20 years from
the time when the offence was committed.
In terms of this section some common-law crimes have no prescription period which
include murder treason, robbery, if aggravating circumstances were present;
kidnapping and child-stealing.

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The date of commencement of s 18 is 27 April 1994. However, prior
to this date, the right to prosecute could not have lapsed in respect of capital crimes.
In this instance the offence of slapping is not covered by Section 18 and will
therefore lapse after 20 years.

Section 2.2

In terms of section 6(a) of Act 51 , the prosecuting authority may withdraw a charge
before the accused has pleaded to such a charge.

In this case, the accused is not entitled to a verdict of acquittal and may be
prosecuted again on the same or related charges where new evidence is discovered.
A prosecutor may withdraw a charge without the consent of the DPP because the
DPP if dissatisfied with the prosecutor's withdrawal of the charge may charge the
accused afresh.

After the accused has pleaded, the DPP may but before conviction stop the
prosecution in respect of that charge. In this instance the accused is entitled to an
acquittal in terms of section6(b) of Act 51 of 1977. Therefore in any
subsequent prosecution in respect of the same facts, the accused can successfully
rely on a plea of previous acquittal.
Without the consent of the DPP, a public prosecutor may not stop a prosecution
in terms of section 6(b). Where a prosecutor indicates to the court that the evidence
as presented in court he is unable to support a conviction does not amount to a
stopping of the prosecution as held in Bopape 1966 (1) SA 145 (C). In this scenario
the court having heard the accused plea and the witnesses evidence, may decide
whether the facts and evidence will sustain the continuation of the trial. The court is
vested with the power to have the case withdrawn but Ed is not en In this case, the
accused is not entitled to a verdict of acquittal and may be prosecuted again on the
same or related charges where new evidence is discovered.
Section 2.3
The lawful arrest and lawful continued detention after arrest are based upon four
pillars.

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The first pillar is that the arrest (with or without a warrant) must have been properly
authorised which entails a statutory provision authorising the arrest.
The second pillar is that the arrester must exercise physical control over the
arrestee. The third pillar is the informing of the arrestee of the reason for his arrest in
terms of Section 39(2). In terms of this section, arrested person must at the time of
the arrest or immediately thereafter be informed of the reason for his arrest.
In the event the arrest took place by virtue of a warrant, the arrested person must be
handed a copy of the warrant upon demand.

If this requirement is not met, the arrestee’s custody will be unlawful as held in Kleyn
1937 CPD 288 and Ngidi 1972 (1) SA 733 (N).
Whether the arrestee was given adequate reason for his arrest depends on the
circumstances of each case. The person’s particular knowledge of the surrounding
circumstances for his arrest is an important element in this regard. It is not essential
that the exact wording of the charge which will later be brought against the arrestee
be conveyed at the time of the arrest as held in Minister of Law and Order v Kader
1991 (1) SA 41 (A.

Whilst an arrestee’s detention is regarded unlawful if he or she was not informed at

the outset of the reason for his arrest, if he later informed of the reason his detention
is lawful as held in Nqumba v State President 1987 (1) SA 456 (E).
It is not essential that an arrestee be provided with detailed information relating to
something that the arrestee ought to know. This is particular relevant when the
arrestee is caught in the act as held in Macu v Du Toit 1982 (1) SA 272 (C) and
Minister of Law and Order v Parker 1989 (2) SA 633 (A).

The final pillar is that the arrestee be taken to the appropriate authorities as soon as
possible. In terms of Section 50(1)(a) an arrestee must as soon as possible be
brought to a police station or, if the arrest was made in terms of a warrant, to the
place stipulated in the warrant.

Section 2.3.2
In terms of Section s 59(1)(a), release on police bail can only take place before an
accused’s first appearance in a lower court.

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This restriction is in order to ensure that courts remain in direct and exclusive control
over release on bail once the case is on the roll.
Discretionary special conditions as provided for in section 62, cannot be added by
the police when releasing an accused on police bail. The court may however upon a
prosecutor’s application add special conditions to police bail in terms of Section
59(2) as read with section 62.

Police bail shall, if it is in force at the time of the first appearance of the accused in a
lower court, remain in force after such appearance in the same manner as bail
granted by a court in terms of Section 59(2).
Police bail is not possible in respect of offences referred to in Part II or Part III of
Schedule 2 of Act 51 of 1977 which include all serious common-law crimes, for
example, treason, sedition, murder, rape, arson, kidnapping, robbery, theft, fraud,
and assault (when a dangerous wound has been inflicted). Part II also refers to
certain serious statutory offences, for example, drug offences and offences relating
to coinage. Police bail may not be granted in respect of essential infrastructure
related offences as provided for in Section 2 as read with Section 3 of the
Criminal Matters Amendment Act 18 of 2015. In this instance X may not be released
on police bail in terms of the provisions the Criminal Matters Amendment Act 18 of
2015 because cable theft relates to essential infrastructure-

Section 3.1
Plea bargaining in the form of traditional plea negotiation and agreement between
the parties.
The object is to lighten the burden which the accused has to bear in that the accused
faces less serious implications as far as sentence is concerned and spare the State
the time and expense involved in a lengthy criminal trial.
Statutory plea bargaining or negotiation was introduced into South African criminal
procedural law by the insertion of Section 105A into the Criminal Procedure Act 51 of
1977.
There are two systems of negotiation within the South African criminal justice system
namely formal negotiations under statute and informal negotiations mostly based on
trust.

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In traditional plea bargaining the object a plea to a lesser offence is negotiated
between the accused or his or her legal representative and the prosecutor. In these
negotiations the latter agrees to accept the lesser plea tendered for example from
murder to culpable homicide.
The accused may also plead guilty to the charge but on a different basis from that
alleged by the State. An example is where agreement is reached with the prosecutor
on the facts which are to be placed before the court to justify a conviction on the
basis agreed to.
Statutory plea bargaining in terms of Section 2 of the Criminal Procedure Second
Amendment Act 62 of 2001 is essentially a codification of the age-old practice
described above where the formalities are prescribed and the whole agreement must
be in writing. The time for entering into an agreement is before the commencement
of the trial before plea. Where the court has ruled for a de novo trial the parties may
not enter into a plea and sentence agreement in respect of a charge arising out of
the same facts.

The determination of whether an agreement complies with the requirements

stipulated in Section 105A, a court will also examine sub-section (1)(b)(iii), which
provides for the participation of the complainant/victim as found in Sassin [2003] 4 All
SA 506 (NC).
An authorised prosecutor authorised in writing by the National Director of Public
Prosecutions and a legally represented accused may negotiate an agreement on
plea and sentence.
Non-represented accused are excluded from the provision. The judicial officer is not
to participate in the negotiations. Provided the prosecutor is authorised in writing by
the National Director of Public Prosecutions and A who is legally represented may
negotiate an agreement on plea and sentence.

Section 3.2
A parties who did not call the witness has a fundamental right to cross-examine this
witness for the purpose of eliciting facts favourable to the cross-examiner’s case.

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Cross-examination is not confined to matters raised by the witness in his or her
evidence-in-chief. Leading questions are permitted. The cross-examiner has a duty
to cross-examine on matters he disputes.

During cross examination, misleading questions may not be put and vexatious,
abusive or discourteous cross-examination is not allowed.
A court may on good grounds shown allow a party to reserve cross-examination.
Once such reservation has been granted, a court cannot later deny a party the
opportunity to cross-examine as held in Mgudu 2008 (1) SACR 71 (N). In this
instance where P who led the evidence-in-chief of the same witness, he may not
conduct a cross-examination of his own witness.

Section 3.3
The Constitutional Court has held that an accused’s constitutional right to a fair trial
also means that an accused is entitled to be provided with reasons for each charge
he is convicted of and that this also extends to the right of appeal to a higher court as
held in Barlow 2017 (2) SACR 535 (CC) at [11].

In National Director of Public Prosecutions v Naidoo 2011 (1) SACR 336 (SCA)
Mpati P and Tshiqi JA said (at [18] is was held that the furnishing reasons for a
judgment is a salutary practice which requires judicial officers to express the basis
for their decisions through reasoned judgments.
The purpose is to ensure the parties and other interested member of the public that
the court gave due consideration to the matter, thereby ensuring public
confidence in the administration of justice.
In terms of Section 146 of the Act a judge is required to give reasons for any
conclusions reached by him or her in respect any question of law or fact as held in
Maake 2011 (1) SACR 263 (SCA) at [24].

It is also essential that a magistrate give reasons for his decision on any factual or
legal issue as provided for by Section 93 (3)(c) to (e) of the Magistrates’ Courts Act
32 of 1944.
In the Mokela 2012 (1) SACR 431 (SCA) at [12] it was held that people need to know
that courts do not act arbitrarily, but base their decisions on rational grounds.

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It is given that proper reasons require an intelligent analysis of the evidence and
cannot consist of a mechanical regurgitation of the evidence as held in Bhengu 1998
(2) SACR 231 (N) 234f—235a.
The absence of any specific finding as regards the evidence of an accused are
regarded as a situation where no reasons for a conviction are given as held in
Ngabase 2011 (1) SACR 456 (ECG) at [4].

The absence of reasons negatively affects the constitutional right of an accused of

appeal, or review by higher court as provided by Section 35(3) of the Constitution.
It is argued that a trial court’s failure to furnish reasons also hampers the task of the
appeal and review court.

On appeal a trial court’s findings of fact are presumed to be correct, unless the
recorded evidence shows these findings to be clearly wrong as found in Hadebe
1997(2) SACR 641 (SCA) at 645e-f.
An appeal court would be able to consider the evidence afresh and make its own
factual findings if a poor judgement was delivered by the trial court.

Section 4.1
In many instances it happens that criminal proceedings are frequently postponed
after conviction, before sentence is passed. The are several reasons which includes
the State needing more time to obtain a list of the accused’s previous convictions or
because a pre-sentence report was not available.

In terms of Section 275 provides that any judicial officer of the same court may if the
judge or magistrate who has convicted the accused is not available, pass sentence
after consideration of the evidence. It is however a requirement that the trial judicial
officer must be materially absent due to reasons such as recusal, transfer, leave,
death or serious illness as held in Lukele 1978 (4) SA 450 (T). In this instance where
the magistrate has died, means that another judicial officer of the same court may if
the judge or magistrate who has convicted the accused is not available, pass
sentence after consideration of the evidence in terms of Section 275.
X’s attorney, insists on the trial starting de novo (from the beginning), asserting that
the proceedings essentially ‘died with M is therefore correct in law.

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Section 4.2
A magistrate’s court instituted for a district is referred to as the district court, and a
court a regional division is instituted in terms of Section 2 of the Magistrates’ Courts
Act.
Periodical courts are magistrates’ courts which sit at regular intervals at places other
than the seats of fixed permanent district courts. The jurisdiction of a periodical court
is exactly the same as that of a district court with certain limitations as regards its
territorial jurisdiction. Section 91(1)(b) of the Magistrates’Courts Act provides that no
person shall, without consent, be liable to appear as an accused before any
periodical court unless he nearer to the place where the periodical court is held than
to the seat of the magistracy of the district

Lower courts do not have jurisdiction to enquire into or rule on the constitutionality of
any legislation or on any conduct of the President in terms of Section 170 of
Constitution. Lower courts do not have jurisdiction to hear and decide a matter on
appeal or review except in terms of Section 29A of the Magistrates’ Courts Act,
where an appeal is lodged against a conviction and or sentence of chiefs,
headmen and chiefs’ deputies.

Therefore in this matter A’s decision to lodge an appeal on both the conviction and
the sentence is flawed because Lower courts do not have jurisdiction to hear and
decide a matter on appeal or review except in terms of Section 29A of the
Magistrates’ Courts Act.

Section 4.3.1
Section 327 of the act provides that if a person convicted of any offence in any court
has exhausted all the recognised legal procedures regarding appeal and review may
submit a petition to the Minister of Justice, stating that further evidence has become
available which materially affects his conviction or sentence. The minister may, if he

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considers that such evidence true and might reasonably affect the conviction refer
the petition and affidavits to the court which convicted the accused.

The court thereupon receives the affidavits and may permit the examination of
witnesses in connection with the further evidence as if it were a normal criminal trial.
The findings of the court regarding the further evidence do not form part of the
Proceedings and the court advises the President whether and to what extent the
further evidence affects the conviction. The President thereupon considers the
finding and may direct that the conviction be expunged, effectively giving the
accused a free pardon; or 2 commute the conviction to a lesser one and adjust the
sentence accordingly.

No further appeal, review or proceedings are permitted in respect of proceedings,

findings or advice of the court in terms of Section 327.