LAW OF CRIMINAL

PROCEDURE
204
2024
INTRODUCTION
BASIC INFORMATION 2

 LECTURER: Mrs Delecia Beyers (Office number 25, Ground Floor)

[email protected]; tel: 021-959
3298
 CONSULTATION: (in person) Wednesday 09.00-13.00
 (Online) Monday 10.00-12.00
 IKHAMVA: Announcements; slides; podcasts, assessments
 SELF-STUDY
 RULES: Punctuality; silence; preparation
INTRODUCTION 3

 High crime rate and violent nature of crime.

 Crime is a reality, especially in SA
Therefore need for rules, principles, mechanisms and structures to
prevent, cope with and control with criminal behaviour and
consequences of crime.
• Main purposes of criminal procedure:
1. Provides process for achieving criminal law goals (sentencing
objectives).
2. Provides dispute resolution mechanism
3. Allocates resources and distributes power among state officials.
SCOPE OF CRIMINAL PROCEDURE 4

 Regulates duties and powers of:

o Criminal courts; prosecuting authority; duties and powers of the police
in the course of the investigation of a crime
• Regulates rights and duties of:
o Suspects; arrested persons; accused persons, pre-trial procedural
matters; bail; charge sheets & indictments, pleading; the course of the
criminal trial; rights and duties of the prosecution and the defence;
verdict, sentencing and post-trial remedies
• Seeks to balance:
1. Interests of society to hold accused accountable.
2. Rights of suspects, arrestees and accused.
3. Must also protect the rights and interests of victims
Criminal procedure as component 5

of the criminal justice system

 Criminal justice consist of criminal procedure , substantive criminal
law, the law of evidence in criminal proceedings, the law of
sentencing and the law governing prisoners and prisons
 Binding factor between these branches: they all deal with crime
and its perpetrators and should form a coherent whole in order to
ensure firm but fair enforcement of the rules of substantive law in
accordance with constitutional and all other legal requirements
 Democratic Alliance v President of the Republic of South Africa
2013 (1) SA 248 (CC) – ‘ an effective criminal justice system is …
vital to our democracy
 Corruption Watch NPC v President of the RSA 2018 (2) SACR 442
(CC) ‘ if you subvert the criminal justice system, you subvert the
rule of law and constitutional democracy.’
CRIME CONTROL AND DUE 6

PROCESS
 Criminal procedure consists of a series of compromises
 There is a constant need to strike a balance between the interests of society in effective
criminal law enforcement and the interest of society in the protection of rights and
freedoms of all individuals : suspects, arrestees, convicted persons and sentenced
persons
 CRIME CONTROL MODEL – main focus of the cjs is to control crime, repression of
criminal conduct.
 DUE PROCESS- primary function of the cjs is not merely to secure a conviction and
sentence, but to ensure results are achieved ito of rules which duly and properly
acknowledges the rights of an individual during pre-arrest-investigation, pre-trial, trial
and post-trial proceedings.
 the rights of the accused are recognised in attaining justice. Eg X’s right to a fair trial is
respected whilst he is prosecuted and/or sentenced for a crime he has committed.
 Models are complementary. One supplements the others.
 Both seek to vindicate the goals of substantive criminal law.
 State power should not be abused.
OBJECTIVES OF PUNISHMENT 7

 DETERRENCE – deter/prevent commission of further crime.

Specific deterrence and general deterrence.
 RETRIBUTION – emphasis on punishment of offender for breaking
the law (different from deterrence and rehabilitation)
 REHABILITATION OR REFORM – become law-abiding through
support programmes.
THE POSITION OF THE VICTIM IN 8

THE CRIMINAL PROCESS

 Prosecution instituted by the state. Constitutes a contest between state and
accused.
 Role of the victim is confined to that of an ordinary witness
 Service Charter of Victims of Crime in South Africa adopted by Parliament, sets
out victim rights as contained in the Constitution and legislation
 State must prove guilt BARD. Accused must raise reasonable doubt in the mind
of the court.
 Victim usually called as an ordinary witness for the state. Upon conviction
victim may be called during sentencing.
 View: CJS is offender-orientated ; victims not sufficiently supported
 System lacks adequate victim support strategies-=protection against secondary
traumatisation
 Current victim support measures are inadequate and where available, under
utilised.
VICTIM’S PARTICIPATION IN 9

CRIMINAL PROCESS
 Statutory provisions permitting victim participation:
1. S 105 A(1)(b)(iii) of the CPA: Sentence and plea agreement (plea bargaining).
Victim may (if it is reasonable to do so) make representations re content of
agreement and/or compensation.
2. S179(5)(d)(iii) of the Constitution: NDPP after consulting with DPP may consult
with complainant when reviewing decision whether to prosecute or not.
3. S 299A of the CPA: When an accused had been sentenced to imprisonment for
serious crimes such as murder, rape, compelled rape etc, and his or her
placement on parole is considered, the complainant may make
representations.
4. See para 21(3) of the National Instructions on Sexual Offences. Read Albutt v
CSVR 2010 (2) SACR 101 (CC)– participation of victims in the pardon process.
5. Wickham v Magistrate , Stellenbosch 2017 (1) SACR 209 (CC)- court criticized
the Service Charter for Victims in SA : ‘ does not provide a victim with the
absolute right to be heard on demand’
VICTIM PROTECTION IN THE 10

CRIMINAL PROCESS
 S144 (3)(a)(ii) – where the accused is arraigned for a summary trial in the High Court,
indictment must contain a list of names and addresses of prospective witnesses (such
details will only be withheld if the DPP is of the opinion that the witness may be
intimidated
 S153(2) – if there is a likelihood that harm may result to a witness, the court may direct
that the witness testify behind closed doors, his/her identity shall for a period not be
disclosed
 S158(3)- testimony to take place by means of closed-circuit television to protect the
victim against any harm or prejudice if he or she testifies or is present at such
proceedings
 S170(A)- court may appoint an intermediary if it appears that criminal proceedings
would expose a witness under the mental or physical age of 18 years old
 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 –
Framework for adequate and effective protection of victims of sexual offences.
 Witness Protection Act 112 of 1998- provides for witnesses including victims to be
placed under witness protection
CONSTITUTIONAL CRIMINAL 11

PROCEDURE
 S2 of the Constitution: Constitutional supremacy
 BoR direct relevance to criminal procedure. Rights may be affected
by criminal processes. Eg criminal procedure allows search and
seizure. This affects the right to privacy as guaranteed in the BoR.
 BoR contains specific rights which must be upheld by the cjs.
o S35(1) Everyone who is arrested for allegedly committing a crime
has the right to. .
o S35(2) Everyone who is detained, including a sentenced prisoner,
has the right . . .
o S 35(3) Every accused person has a right to a fair trial, which
includes the right . ..
BoR: EVIDENCE 12

 S35(5) Evidence obtained in a manner that violates any right in

the BoR must be excluded if the admission of that evidence
would render the trial unfair or otherwise be detrimental to the
administration of justice.
 Note: evidence that violates ANY right in the BoR MUST be
excluded if it prevents a fair trial or is disadvantageous to the
administration of justice.
 S36 of the Constitution: Limitation of rights. When is it justifiable?
SOURCES OF SOUTH AFRICAN 13

CRIMINAL PROCEDURE
 The Constitution
 The Criminal Procedure Act 51 of 1977 (CPA)
 Other legislation eg Child Justice Act 75 of 2008; National
Prosecuting Authority Act 32 of 1998, South African Police
Services Act 68 of 1995.
 Case law – Doctrine of Precedent
 Common law still governs aspects of criminal law eg recusal in
criminal trial.
CRIMINAL JUSTICE REMEDIES 14

 Courts have to uphold the principle of legality – the judiciary must ensure effective protection
of the rights of suspected, arrested and accused persons. They should be dealt with in terms
of the law.
 Writ of habeas corpus – interdictum de libero homine exhibendo –
protects the individual against unlawful infringement of his/her liberty
(protection against unlawful detention)
Court order to produce the detainee’s body before a court at a certain time
and date. (Respondent could be the Minister of Correctional Services, chief Warder
or Commanding Officer)
Application heard by a single judge in the civil court
Application is made ex-parte
Accompanied by a rule nisi that the respondent should show cause why the detainee should not be
released.

• See Lamboleni and Ten Other Appeal Case v The State 2016 (1) NR (NLD)
REMEDIES CONT. 15

• Civil action for damages: eg wrongful arrest (law of delict)

• Interdict: Court prohibits a person from acting in a certain way. To
prevent or limit harm.
• Mandamus: The court orders a person or a functionary to perform his
duty. Eg Pollsmoor was ordered to decrease levels of overcrowding
• Exclusionary rule: S35(2)of the Constitution – exclusion of evidence
obtained after the violating of any right in the BoR.
• Informal remedies: resisting unlawful arrest; escaping unlawful
custody (very risky)
• Constitutional Mechanisms (Public protector, SA Human Rights
Commission and NGOs.)
ACCUSATORIAL AND 16

INQUISITORIAL PROCEDURES
 Parties have different functions in terms of these models
 Inquisitorial model – judge is dominus litis (master of
proceedings)- he/she is actively involved and even controls the
proceedings. He/she may dominate he questioning of witnesses
and the accused.
 Accusatorial model – prosecutor is dominus litis (master of
proceedings)- judge or magistrate does not enter the arena of
the fight between the prosecutor and the defence.