8.10.2 THEFACTUAL ASPECTS ‘This sspect manly concerns the gathering of evidentiary material to place before the courton behalf of your cient. ican vary trom consultations with doctors in cases of ‘automatism tothe tracing of and consultation with an eye-witness where the factual vents are in dispute, 8.10.2. EVIDENCE, Evidence whic can support your cen’ defence in one wayor another must be Iden- {fled and the witnesses concerned must be interviewed, To which witnesses does the defence have access? Very often the defence has to establish wheter certain witnesses can testify fo their advantage. Wienesses, especially eyewitnesses are hard to come ty. Wanesses can, generally speaking be divided into fou categories 7 Whnesses who have already made statements tothe police elthec favorable ot unfavorable forthe Sat's case, * Winesses who have been interviewed by the police but who have not yet made statements: + ‘wiinesses who have not ben interviewed by ether ofthe parties and ‘_ Wnesss hat have already been subpoenaed by one ofthe parties to give evidence, ‘The question arises with which of the above-mentioned witnesses the defence may consut, ‘Asfar asthe Mist two categories are concerned, se the dscusion ofthe Const tonal Court judgment under paragraph $3. 1above. See also Manda 1951 (3) 84 158 () 167. ‘Tram the above iri noc lear exaCly wen a witness 1 acessble forthe other pry. Inthe one case the witness is subpoenaed bya party and inthe oer case the ‘witness mentioned by a party as witness. ‘The only inference that canbe made is that there must apparently be some or ther conduct by means of which the party earmarks the witness or hse J cto says the ftowing on 121 "paar webpage tt veri om yearns an ager neem, mae stat Boor hom, bel esondike ee, ‘aren ert om ono met roe et fe Hse ‘er meds bein ge he se gs onves at party oat hm gre eg {Sepa onde et om er War de gees ern gece Cc as nero a era Ss ef nena gece ‘an 9 vomene om n penoon a ee tp, moet bee Sat eR See {Ging ate aaron weno cra et eg tee? iat he above mean i tte en pen sate Sate wanting te cont wih ce woes: But he bn souasy sat be shown a wh Se dtfena conuling witha Sate wise: Approach tee se ad et el onset oe stating de onsaton ‘Access to witness statements taken by the police In Shatatala and Five Others v Attorney-General ofthe Transvaal and Another it was held thatthe eight to a fee tral, embodied in sect 25() ofthe interim Constitution, ‘ordinalyinciudes access tothe statements of witnesses (whether of not the Sate intend f0 call such witnesses) and such of the contents ofa police docket as ate relevae in order to enable an accused pesson propery co exerci that right, but the prosection may, Ina particular ease, beable to ust the denial of such access onthe rounds that i snot justified for the purposes of flr tal. According tothe court, {his weuld depend on the drcumstances ofeach ease. The State I, a held by the cour, entitled to cesist a claim by the accused for access to any parielat document in {he pice docket on the ground that such acess not jstife forthe purposes of fair tll or on the ground that it has reason to belive that thee isa reasonable isk ous 78not imposed together with any other sentence. Rising ofthe court Is hete used inthe Sense of the Mnaiztion of thecase and the convicted person i accordingly ented to his release before the nexe case stares (Msimango 1972 (3) SA 145 (N), In terms ofthe criminal Law Amendment Act 105 of 1997 the High and Regional courts are obliged fo impase ctain minimum prescribed punishments. Maximum punishment and Alternative panishment Fr jurisdiction of istrict and Regonal courts please see section 92 ofthe Magistrates ‘cours Act 32 of 1944 a8 amended. Increased jurisdicden Is sometimes allocated to magistrates cours by specific satutry provisions. n the absence thereof a mais ‘rat's cout silted 2 ts normal jurisdiction, ‘A magistate’s court can wher imposing a sentence of afin, impose imprisonment fora period within its jarisdtion as alternative tothe fine (section 247) of the (PA), There Is a provsa, however, namely whete @ statutory provision prescrtes & ‘maximum period of mprisoneat as punishment forthe spetfioence the period of Imprisonment which may be inposed as an alternative co the fine, together with ary further period of imprisonment which may be imposed as direct panishment, may not ‘exceed that maximum period “Types of punishment Adistit court may impose th ellowing types of punishment ection 92 of Act 82 of 43944 read with setion 276 ofthe CPN * Imprisonment + Periodical imprisonment + Afine + corectional supervision ‘+ Imprisonment from which tbe person may be placed under correctlonal supervi- sion ‘ARegicnal court may impose the following types of punishment and no other: (Sections 1275, 2784) + (8), 285 CPA read with section 92 AcE 32 of 194), Declaration aa habitual erminal * Declaration asa dangerous criminal ‘+ Imprisonment for life - Section $1 of Act 105 of 1997 Imprisonment Perlodcal imprisonment Afine (orzectonal supervision Imprisonment from which te person may be place under correctional supervision + Suspending compulsory sentences. Secton 297 provides that where a specific punishments compulsory the court must Innpuse that serie, but the exon of part ofthe sentence canbe suspended on certain conditions, Section 297 may also not be applied If semeone ts convicted of an offence in terms ofthe Dangerus Weapons Act, 1968 when a person above the age Of 18 years is subject to compusory imprisonment (Section 4) and 42) of act 71 of 1968; Diederich 1969 (3) $A270 (©), nor by areglonal court ating In terms of section 51 of act 105 of 1997 essa 76purposes of sentence pric ro he trial as such may lad to unnecessary tension and a lack of confidence and selFconfdence on the part of your ent. the normal course ‘of events the practtione: wil inany event obtain the basic lnformation requled dating his consutatons in respect ofthe merits. 89 JURISDICTION 94 9.8 89.12 a9. JURISDICTION IN RESPECT OF LOWER COURTS Lower courts comprise dstrct Courts Le a magistate’s cout for a district and Regional courts Le. a "magstrate’s cour” fora region The fursdcion oft district, court ot Regional courts limited in respect of the area within which the offence Is commited, in respect ofthe type of offence which Irmay ty as wel asin cespcto the punishment which may be imposed. No magistrate's court has jurledition ta decide ‘on the validity ofa statutory provision. JURISDICTION IN RESPECT OF OFFENCES {A district court has jrisdcion ver al offences except high treagon, murder, rape ‘and compelled rape as contemplated by ston 89 ofthe Magistrates Courts Act 32 of 1944 Arelonal court has ursdlction over all offences except high treason. (Section 89 ofthe Magistrate's Court Act 32 of 1984) Noe thatthe district court may therefore ‘even try the selous offences of teorism, subversion and sabotage. A Regional court ‘may also try the offences of murder an rape. See section 1108 ofthe CPA In respect of offences commited by certaln persons outside Republi. JURISDICTION IN RESPECT OF AREA SUMMARY TRIALS ‘Seeton 90 of Act 52 of 1944 provides that a Dstt and a Regional court are author Inet to ry persons whe are charged with committing an offence within te district. or the region (e. an area comprising a numberof districts), Tls principe ts extended bythe further provisions of section 90 as amended by section ofthe Lower Cours Amendment Act 91 of 1977, ‘These sections provide ince li the flowing: ‘when someone is convicted ofan offence: * Commited within a distance of 4 kilometers (revously2 miles) beyond the border ofthe district or the region of * Committe in or ona vessel or vehicle during journey any par of which is within 4 distance of 4 kilometers fom the district ar the regon: ot + Committed on board a vessel sailing a river within the Republic ot which const- ‘utes the border ofa par thereof and such Journey o part thereof sn or within a Aistance of 4 kilometers from the dtc of thereon: ot * Committed on board a vessel on a journey withia the territorial waters ofthe Republic and such territorial waters border on the date ofthe region; ot + Which is started within the district o region, such a person canbe tried by the court ofthe dst othe eon, asthe case my be, ‘sifhels charged widh an offence which ls commited witha the ditlt or the region as the case may be. As regards the 4 kilometer rule person can be tied in especie fares for an offence committed in another province but within 4 Klometers om the border ofthe area concerned iit sa common law offence (implied in the decison In ‘Baba J8 376-55 (@), and probably leo it san offence in terms ofan ideatleal stat {ory provision which s applica in both provinces, When itis uncertain in which of the various areas of jurisdiction an eflence Is commited, such an offence can be ried Im elther of such aea of jrisdton. essa 74+ Doss freely and voluntarily whilst being In hisyher sound and sober senses and without having been unduly Influenced thereto. leis also necessary that an accused person is informed, prior to entering into such an agreement, of Ilse right tobe presumed innocent; te remain silent and not o testify during the proceedings; and hot to be compelled to give sefncrlminating evidence. Once agreement has been reached between yu, your legal representative and the tae, the formal writen document of agreement wil be placed before the Magistrate and if hehe is satisfied that + You have been informed of your rights + You have voluntary entered into the agreement + You indeed admit the facts that have been agreed upon + The sentence as agreed upon I alt you will be convited and sentenced as per the terms or the agreement" Sce also De Rebus, Janeb 2002 p68-69, aswell asthe example atthe end of the notes, ‘The Plea and Sentence Agreement In terms of Secon 105A of the Ceiminal Procedure Act has now ‘eoome am Important procedural tool to ald In the backlogs created in our ciminal cours. See $ ¥ Esteczen & others 2005 (1) SACR 450 () If used effectively the vein ot victim's fal ean also hve a say inthe sentence proposed. it must however be borne in mind thatthe Jill Officer does not have to accept the Plea and Sentence Agreement entered into. 88 PLEA [A this stage you must evaluate the acuseds chances of succeeding and discuss this with him in ‘oxde to give the coctect plea in the creumstances. The lawyer has now been informed of the aval able evidence on both sides as well asthe quality thereof and can now peopely evaluate his dents poston. in view of che above the accused then pleads elther guilty oe aot gull. We have aleady Inccatea that the accused must In cercin cases be clearly informed ofthe advantages of «plea of gully, this regard diplomacy and understanding must be used. See chapter 15 ofthe CPA fo pleas {vallable tothe accused other than gully and not gui. 881 THEPLEA OF NOT GUILTY BY A CLIENT WHO ADMITS IN HIS, INSTRUCTIONS TO ADVISOR THAT HEIS GUILTY 1 sometimes happens that a lent admits that he is gulty but thatthe lawyer has ‘no doubt in his own mind chat the seat wil not be able to acquit isl of ls onus (of proof. For example where the complainant who was the only witness, has dled ot {is unable to testify. May the accused's legal representative advise him to plead not gully in coure?Lourens du Plessis in “ie Pressionele Gera vr de furs” sates the Following in this regard on page 42: “tk meen da dt wel mag getew want (as dle prokureur of advokaa en die hg) ‘moet instaat wees om tussen de Beskulilee Se “moree” en uridlese shuld te ander ste en (0) met n pele word geen exkenning of onchenning gemank nie maar segs n Depaalie bewystas op die tenpargy (n cas dle stat) geplas. Plt Yan slg {dus net so min n skulontdoeseming as wae pee van onskuldig 'nsogenaande “shuldonotenning ts. Erhenningsgfonchennings han situ sens slegs ton aansen van ‘de fete van die sack gemaak wor. Die opting dedi inal oreo desk of ‘onsuld van Beste by dc haf beras en ne by dle egsverteenwootiger ne geld ‘er volledg te meer omdataan die opcrede van Bede de beshuldlgde war onskllg lec en die egsprarisyn wat hom aldus adviser, nits ancerbaar i ie” ‘The following must be clearly understood: + Because the client forfeits the advantages of plea of gully the lawyer should only ‘recommend this procedure Ihe ls quite convinced thatthe State will be unable 0 rove its ea *+ When the accused pleads he must exercise his right remain ilent- the court may ot be misled; essa 72history and purpose ofthe change inthe entrapment law in South Aftca. You wil be well advised to ead section 252A ofthe CPA and the comments of Du Tot 24 130 f0 24159 For a comprehensive and Informative dscassion on the effect of undercover ‘operatlons in terms of ection 252A andthe constieutio se Sv Singh & others (2016) ‘ZASCA 37 (unreported, SCA case no 8622018, 24 March 2016) n that case the court, lays down certain criteria to determine whether the reception of the evidence was etimental tothe administration of justice, ‘denifying witnesses ‘The bonafides ofthe person, the ccumstances under whch the Identification took Place, the opportunity which he had to se the accused, the place, ime and suround- Ings where the Identification rok pace, whether he knew the accused before, the ques ‘on as to wheter thee was an Ideniiation parade are all aspects which have fo De ‘covered thoroughly during consultation. A proper knowledge of identification parades and the rules appticabecheret Is equlred. A visto the scene where the incident took lace may also be essential (Se Hiemstra 70-3 or Du Tole under seeion37(}) (i). We ‘an cary on and refer o single witnesses, wimesses in sexual mates, cle ee. Foreac ofthese witnesses a specie approach is required during preparation for tia ‘rom the above It acordngly appears that knowledge ofthe witnesses and types of witnesses which the state will use agalst your cen Is itually essential and I must accordingly be investigated thoroughly during consultations. 8.3 KNOW THE SCENE RELEVANT TO THE OFFENCE FOR WHICH YOUR CLIENT ISBEING CHARGED ‘The importance ofthis requirement cannot be overestimated, especially where identification isin disput or where the clent is charge with an offence which results fom a motor collision, to name ‘but few. The cour can inits discretion order that an inspection in loco beheld under certain ecu stances (emstra 858 or Du Tolt 22268). A vist to the scene Is always of great value and many accused have been found not gulty because thelr attorney visited the scene ofthe alleged offence and ‘became familar with i, Where possible the attoney must accordingly accompany his cient to the ‘soene and consult with him thoroughly In espect trea. 84 OBTAINING DOCUMENTS 1m this regard you must read the following: Hiemstra 3912, 51; Rule 64 of the Magistrate's Court, rules; Cave vJoannes NO 1949 1) $A 72 (Ty and section 189) and 841 DOCUMENTS ‘The presentation ofa document or paper is obtained by summoning a person witha Subpoena duces tecum with the request to bring the documents concerned with htt ‘This summons is only dzected at witnesses (ler sate or other witnesses) to bring documents in their possession with them. Documents to which they only have access ‘cannot be obtained by means of such a summons (MKWay! 1956 (3) SA 408 (E). 8.42 _ACCUSED'S STATEMENT In exms of section 385 of the CPA an accused can obtain acopy ofa statement mace toa peace office If criminal proceedings are thereafter lasted, Even if elit tll you that he or she has not made a statement tothe police, you would be well advised to request from the public prosecutor i he or she did make 2 statement. Cent may, be under an apprehension that he or she dd not make a statement and yet they di ‘You cannot plan your defence unless that is fist established. Also note the decision In [ia 1991 @) SA 92 (E) whichis othe eect that an accused I also entitled fo reports regarding identification parades. (See Hiemstra Sit) essa 70and Du Toit 24-66, Sch a tral whthin a al requtes preparation in itself and as ‘soon as it Becomes clear thatthe State will se the statement. the attorney must prepare in good time. The cent often alleges that force was used to obtain the Statement from him. To act timeously maybe of cardinal importance for example by arranging fr medial examination of his injures tobe done while they ar stl sible. » See $v Mthethwa 2004 (1) SACR 449 (E) wher the court held that a statement ‘made ty an accused where he was cleatly a suspect and prior to being advised of the right remain slent, was not admissibe. 82.26 POINTINGS OUT WHICH RESULT FROM STATEMENTS ven fa etatoment ty anaccased i nadmslble, evidence that he pointed out cesta things or paces wil be acmisibe even they rest rom suck inadmissible statement (section 218 ofthe CPA and Hlemstra's and Du To's notes to that section; Magwazd 1985 () SA 29 (A; Masicla 1987 f) SA 1 (A); Shethama 1991 (2) SA 860 (A), and J Engltrecht in De Rebus October 1985 page S31. ‘eis accordingly Important co establish during consultation withthe cllent whether Inehas indeed made the painting out. Thevalueof the evidence of whathas been pointed ‘outliesin the deduction thatthe accused has knowledge of such an item or place Yout ‘consultation wil be directed at establishing whether the accuses pointing out took place under circumstances which can nogate such a negative inference. In this respect vis important to consider che admisstllty of evidence concerning a pointing oxt, especially where tls follows upon an inadmissible confession, and fo take the effect ofthe Constttion into arcount in this regard. The flowing decisions are Important In this regard: Sheehama 1991 2) SA 860 (4); january, Prokareur Genecaal, Natal v ‘numalo 1964 @) SACK E01 (4); Yawa 1994 @) SACR TO9 (SE) and Melani en Andere 1995 6) BCLR 632 (E) ant Mgikwa 1993 (1) SACR 507). 8227 DOCUMENTARY EVIDENCE BY MEANS OF SUCH DOCUMENTATION AS ‘MAY BE ADMISSIBLE ‘cis an impossible task tc cover this aspect exhaustively in thls documentation, Only 2 few important aspects hereot wil accordingly be refereed to, Proof of ceraln facts by means of aidavit or cetieate (section 212 The question of what is covered Ierety is discussed extensively by Hiemstra and Du Tot in thee notes on this section, ‘mainly efers to expert evidence, transactions in State departments statutory resis ‘tation or inscriptions, fats determined by means ofsclentic knowledge inger and palm pets, dlsptching goods by ral, te. “The following sections are also important Section 215: Proof a witen statement with consent Secton 214 Evidence noted at preliminary investigation, Section 215: Evidence noted at previous ta Section 221+ Commercial and business seatements; Section 222: The application in criminal proceedings of certaln provisions of the Civ Proceedings Evidence act, 1965 regarding documentary evidence ‘Acts and otber published martes, Pablle documents; Official documents; Judleal preceedings; Section 236: Entries in banker's books. Ie follows naturally tha atthe consultation with your ellent wil gon transpire what documentary evidence of the nature refered to above wil be relevant. for example, ‘expert evidence regarding he analysis of blood sampleto establish the aicoel content ‘thereof or in the case of narcotic substances o Identity a certain substance In fraud cases and Insolvency matters the entries in bankers’ books wil often be presented ssn 68224 aaa establish very quckly whether there may be a confi of Interests; * Acquaint yourself with the scene of the offence; + Toestablsh what the elie’ defence Is and to establish how strong his case can bebult up, + Todetermine in conjunction with the cllent what the indicated plea I; + Toplan the strategy fr the tial in respec of both + ples of guilty; and + Alea of not guilty + To prepare for sentence If applicable; + Prepare cient for the cout proceedings: * ‘consuie wit prosecution before the time regarding a posible plea bargain of to ‘establlh which witnesses they intend calling ‘Representations to the senlor publi prosecutor andthe DPR Remember that al these steps would ied information which wil form the bass of the attorney's cossexamination and he must accordingly aways be attuned theeta, DETERMINING HOW STRONG THE CASE IS. Wie have already considered the charge sheet with its implications and we now know which allegations the state must prove ro succeed and on which Bass the prof must be presented. (Our duty is to try to determine how the State will do this and what evidence twill EVIDENCE ‘Proofs presented by means of evidence. Pvidenceispesented viva voce orn writing by means of such documents as may be admissible. The prot is supplemented by presumptions, admisslons and judical noice. “Together this forms the body of evidentiary matedal before the court from which the final conclusion must be eached ADMISSIONS tis often said that many an accused have landed in jal, no because of his actions, ‘ut Because of what he sald afterwards. Im $v Makhaye 2007 (i) SACR 369 (8) the accused made a statement oa ples in which he admited te kling ofthe deceased, leas clear cat the accused dé not make the statement in confidence and with the Intension that i not be disclose. The court held the evidence regarding the statement admissible. ‘Without exception and as a matter of absolute priority, It must accordingly be ‘established ftom the client whether he has made a statement, either orally ov in ‘writing to any person whomsoever. uch statement could have been made toa private person, peace ofloer or magistrate. I could have been made extra judcally or uring 4 preliminary investigation or Inguest. These statements ae ander certain circu Scances admissible as evidetiacy material ageinst the accused, Such a statement by {he accused can amouat toa confession ora mere admission. Both are admissible as evidence agaist the accused under certain creumstances, ‘The difference between the two Is of paremount importance in determining thet admissbty. This aspect i efeced to elsewhere inthis documentation. Ici essen tial that the practitioner has a thorough knowledge theret (The provisions of sections 27, 218, 219,219 and 220 ofthe cPA are applicable. Hiemstra’ and Du Tits notes thereto are comprehensive See S v Orrie and Another (2005) 2 All SA 212 (©) ‘where the court held that a statement made toa policeman while being unaware ‘that you are a suspect and where you had not been warned ofthe right t legal representation is inadmissible in evidence essa 6+ iis version wil in any event not comply with the requirements of self defence (except fora few exception); * the complainanuthe deoased attacked him with a knife and he (the accused) ‘used his own knife to defn himself his actions may be Justied under such reumstances. After this should be put to im that you are only interested in the truth, tn most ase it wll then transpire tha the accued did indeed ue he own knife in justifiable tircumstances and he wil admit. This is an example of an accused that wll hang himself due to his ear and lace of knowledge if the practioner does nt Interfere Intercourse with consent often changes into rape under a variety of circum- stances, few of which are the following: ‘The father, mother, ends boytiend of family member ofthe female party arrives at the scene of passion unespectedly + She often starts yeling to vold the rage ofa furious mothe, father, husband, ot boyftend; + Ayoung gil spends the while night witha lover, When she tie to enter the home of her parents they wake up. The mother kaows the sigs, examines her and ‘comes to certain conclusions She admits intercourse bu alleges tht ie was under dire ‘+ Avwoman meets a man andshe agrees to have Intercourse with him for remunera tion. He does pay her anc her revenge sa charge of rape. ‘There ae many such examples which serve before our courts daly. The accused does rot want to jeopardize his marage and denles that he ever had intercourse withthe complainant despite the fact cat te State can usually easily prove intercourse with the accused bu has great dficty in proving a lack of consent ifthe accused alleges ‘he contrary, especialy in view ofthe rules of evidence which apply in such eases. It will again be the dity of the practioner to investigate tis mater diplomatically and ‘ocleary bring it tothe attenten of the accused hat he must choose between a faling smartiage and few years In prise, ‘Then the practitioner wil ote come across the accused whose defence is short and ‘sweet, namely ° now noohing about ohe incident, I wasn’ even athe scene. This lent can cette problems, Ask him the following few question: * "that Iss, why do the poice say you ace involved? 0 you have any idea why alleged that you ae involved?" “Do you know the other pero invelved? I 9, what do they say?” ‘thas often happened that dung the wal an accused wih thie atte has been placed on the stene ofthe cre beyond ary doubt. Closer questlonng often reveals that he was simply present but thar he commited no offence. Feat hat his presence ‘may lead to his being associated with the offence, leads tothe denial ofthe fact that he was there, ere we have a case where an accused has a good defence, but due to his lack of| ‘knowledge and fear is found tobe an unreliable witness who wil commit perjury and Inthe process succeed in gettinga jal sentence of few yeas for his rouble. Though Courteous and diplomatic questoning and diseusion, the practioner could succeed In convincing the accused thatthe truth is less dangerous and that his fear and lack of knowledge could be detrimesal. ‘witha few years experience the practioner wil develop the skill of being able to identify these people and toadvise them on how to protec hemseves effectively against themselves. ‘Then we geo the cllent whodishes up an absurd and obviously untruthful version es also ented to protection against himsell. During consultation the experienced practitioner wil quickly and effectively (by asking afew question) expose the fulty wuss GF127 to the docket or any particular statements. Acess tothe pllee docket and the State ‘cases invaluable or an attorney preparing fora teal, but this concession must not be ‘misused by attorneys inorder to buld defenses around the state evidence. ‘The rights of an accused aso Include the ght to the docket or state witnesses? statements unless there is god ground for refusal Sv Shibur 2004 (2) SACR S14 (W). ‘THE REQUEST FOR AND OBTAINING FURTHER PARTICULARS TO THE. CHARGE, ‘Once you have perused the charge and uncertainty prevails in ove iter the require ‘ments andlor the essentials ofa charge, you would be ened to request such further partelats as are necessary to enable you to plead to the charge. The State is obliged fo supply you with the particulars sought forthe accused to understand the State's ‘ase against your dient, See also the discussion on acess to information contained in palice dockets above), [AC this stage we Know the rage of Impact of the charge sheet and what onus of roof rests onthe State By using request for further partcalars tthe charge il fully, this range canbe limited considerably. ‘Such a request must be made in terms of section 87 of the CPA. This section is thoroughly discussed in Hiemstra and Du Tol Pracidoners should cake due notice heteot Nothing prevents the attorney bringing an application in terms of Section 87 ‘of the criminal Procedure Art even where the contents ofthe docket have been made ‘valli fm, TK must be noted thatthe remarks hereunder relate to the situation before the ‘Shakaala ruling. but some may stil be applicable to the station where you were ‘refused access tothe docket o art thereby the State andthe cour. ‘A FEW REMARKS “The request for further particulars must be made befoe evidence i ed. ‘The purpose of particulars I to inform the accused ofthe case agalnst him so that he can prepare his defence. The particulars must clear up the points ia dispute and should not encumber them further with excessive alternatives (Sadcke 1964 @) SA 674 a, "The tral proceeds on the same charge sheet but as supplemented by the further parteulars. See Sv Boekhoud 2011 (2) SACK 124 (SCA) at (60). The charge can De ‘Supplemented but not substituted by further particulars, (Van 2 1988 (2) SA 100 (©) 195 4 ‘There Is no principle in the CPA whlch Justies the State to refuse essential infor ‘mation simply because the providing thereat will disclose evidence. The accused Is ened to ask what facts wil be proved, but not how they wl be proved (Behrman ¥ Regional Magistrate 1256 (1) S318 (7) 821). Particulars are Intended to promote justice and equity fr boch the State and the defence see Cooper 1976 2) 5A 5 (where che mate Is discussed In depth. ‘The States bound by che parlculas I provides (Kraukamp 1927 TPD 412; Mandela 194 () SA 678 (A) a 882), "The accused can obtain the particulars in one of we ways: + Tisly he can objeto the charges in terms of Seton 89(1) (2 n tha hey contain ‘ngfficientparteulars. Notice of such an objection usually has the elect of the public prosector providing the particulars. I not, the coute ca, ifthe objection Js justified, make an order in respect thereof. If the State does not comply with the corde, the court can declare the charge null and vol. + Secondly the accused can ask for particulars (before evidence I led). Ifthe state falls to provide the particulars, the accused can approach the curt for an ordet to compel ce State fo grant the particulars. Ifthe magistrate refuses to gant the ‘order, the accused can apply for a mandamus inthe High Court against che magls- os asi28 122 and definitions are accordingly often explanatory inrespectof manageable words and phrase, Tes important tac every charge must be scrutinised to establish whether there ae any presumptions sil in fre. DRUG & TRAFFICKING ACT 140 0F 1992 ‘Tis Act contains the most drasle presumptions ofall Acts. Tbe abe to represent your client ona charge of contravening a section of this Act a thorough knowledge of ‘Section 10 of the Act and decisions of che courts is important. Several sections in the ‘Actassst the State prosecutor in proving his cace ‘See however the unteported judgment of the Consttulonal Cour in Bhulwana: CGwadiso (CCT 12/85) where i was fed thatthe presumption that a person who possesses more than 115g dagea,dealsin dagga unless ei otherwise proven in ens of section 21) ofthe Act, Is unconstitutional. ROAD TRAFFIC ACT 29 OF 1989 Establish whether there are competent vrdlcts applicable tothe charge. ee inthis regard chaper 26 of the CPA discussed in detail in Hlemsta or chapter 26 in Da Tole. ‘Competent verdlts which may result when the evidence doesnot rove a charge, ‘but proves another offence which doesnot appear as an alternative In the summons, charge sheet or Indiciment. These are the “lessor” offences which ate sometimes In descending order, sometimes on equal footing) tacky include in the maln charge ‘Such a veri is only competent the main charge sot proved. Be earful of compe tent verdicts as they are the responsibly ofthe legal representative defending the accused and ther is no obligation on the preciding char elther the sate proseutor ‘onform the accused of such atthe beginning ofthe al In tespect of specific offences, the following sections have reference: Seaton 258 ‘Murder and attempted muxdet * Section 259 = culpable homicide + Section260 - ——Robhery Secton261. ———_—Rape and Indecent assault > Seaion262 Housebreaking with the Intent to commit an offence + Section 263 statutory offence of wreaking and entering or ofenering premises ‘ section264 = Thett + Section 265 —_—Receving stolen goods knowing that tis stolen section 266 Assault with the intent to do grievous bodily ham + Section267 commen assault + section 268. Statutory unlawful carnal intercourse % Secion269 = Sodomy (General in respect of al offences: s"Secion256°— —Alempt section 287 accessory after fact + Secion270 This is an omnibus provision, Le. a provision for all ‘cases which are not covered by the previous sections. Iereads a lows: {Yh evidence ona charger anyone noe refered 0 In the preceding sections ofthis haperdoes not prove the commission ofthe aoc 0 charged ut proves the commis. sion ofan office which by reason ofthe essential elements ofthat eerce i tntuded ‘he offence 50 charged, the accused maybe found gully ofthe fence so proved" ssa 608. PREPARATION FOR TRIAL RANGE STATEMENT: Expain, craft and perform al actions needed fo prepare fr inal an to quest for an ‘scjourment. ‘SECTION OUTCOMES: ‘tex compl is section you should be taf * Indica the mporiance of a numberof sections of the CPA: @iarotarisi221i22202 2Ar2S2342357295), + =xpuain the jursgiton ofthe lower court in terms of offences and areas, Expl te jurisidtion ofthe lower cout in respect of punishment broadly, Discuss the scope and ambt ofthe charge sheet with your cent in a gen set of ‘Prepare your clent fully for tal by explaining the cautionary rules of consultation, ‘evidence, admissions, scan ofthe offence. ‘Explan the procedure ater ple of guityornot gully tendered in agven set of acs, Apply the prep re adjournment of proceedings ina given set of faci, Preparation fora tral covers a wide fel which requlres the attorney not only to have technical ‘knowledge but also to have 2 sound knowledge of human naire It is an area which requires a thot- ‘ugh knowledge of the principles of criminal law, lav of evidence, professional eles and especialy the CPA. What ashould also come tothe knowledge ofthe practioner when preparing frei are the relevant common law offences and statutory law oflences, the penalties and minlmin sentences ‘applicable applicable to each ootfence. Tineous consultations with potential defence witnesses face also desireable. That will enable yeu to establish If thelr estimony wil coroborae yur cents ‘etson. ‘tis also afield in which inilative and erginalty canbe sed to good effect. The correct approach ‘an create challenges whic, when used in conlncton with an effective system. ca bing great Job ‘satatacton forthe practitioner. This i where eases ate won or lost. Approach I lke a bet, study and note your opponent and be aware of yout own stengihs and weaknesses. Getto know Your case before the tral. in what fllows we shall attempt to prvide the young practioner with a jstem 258, uldene Iris however not compeehensive ands enly Intended to give direction. 8.1 CHARGE SHEET BLL OBTAINING A COPY OF THE CHARGE SHEET CONTAINING THE CHARGE “Thecharge isthe point of departure in respectofa tral The charge against te accused Is written formulation of the offence concerned. Te charge aust inform the accused ‘ofthe ease which the State stringing against him (Hugo 1976 (#) SA 836 In the High court the charge is embodied in an indictment Inthe lowet court the charge ca take on one of tree forms namely. + Summons + rz notice; + charge shee. ‘The charge isthe nucleus of the whole matter. therefore absolutely necessary that ‘he practioner get to see ic immediately and without delay and to ascertain whetherSecondly, the indemnity offered is only in respect of those offences specified by the prosecutor including a competent verde o those offences See Sv Walte 1978 @) SA 1896 (0) 898-809, Thirdly, the prosecutor needs to specty the offence(s} in respect of ‘which an indemnity is ofered in terms of section 204 before the witness called. The offer may be withdrawn by the prosecutor if he reasonably Believe that the witness appears tobe less than honest. Se Sv August & others (2008) 2 All SA 608 (NO. "Me cour also has certain duties to ful. Iehas to ensure that the offence spect ‘ed bythe prosecutor Is propery placed on the ecard of the case. See Sv Maun & ‘ethers 2002 () SACR 268 () 274278. The courts then obliged to inform and warn ‘the winess in terms of section 208 () Le the witness Is obliged to give evidence hat Sncriminating questions maybe put to him or het which he or she is bged to answer, that he needs fo answer frankly and honesty all questions put to him or her and he ay be dlscnarged Tram prsection. See $v Mokoena 2003 () SACR 74 (1). the court is satisfied that che witness answered honesty and frankly, the witness ‘willbe indemnified agains prosecation in respect ofthe offence specified bythe pros. cutor. The court rants o refuses the Indemnity at the end ofthe later argument hha been heard. See $v Mryamana & another 1990 () SACR 157 (A, If the indemnity is refused, the accomplice can thereafter be charged withthe oftence. 72.2 INFORMAL “INDEMNITY” BY DPP ‘A DPP can informally agree with a person or his legal representative that he would, ‘on certain conditions, not institute a prosecution against hm. Tis typeof agreement {s usually reached on condition thatthe person gives his co-operation to the police Inthe Investigation of an offence and is prepared to testify against another pari ‘ant, uswally the main perpetrate. Such a agreement i of couse not legally enorce- abl, but itis virtually unthinkable chat a DPP will beak his promise Ifthe cond tions concerned are adhered to. Ifthe offender is prosecuted and the person woul, a8 agreed, testy against him, the provisions of section 208 apply im any event In such 8 case the person wil not be legally Indemnified against resection, as only a court (or the State Present can give valid indemniies. Note that, where a DP ener nto Such informal agreement, other DPP's are not bound thereby 73. ADMISSION OF GUILT FINE ‘Read section 87 and 57A and compare it with section $42. ‘These provisions in the CPA are dlected at minor offences, The admission of gull fine differ from ‘the spot fine in that inthe case ofan admission of gull ine, rosecution has already been insti- ‘tuted against the offender in terms of whch he can be convicted, wheres the spot fines dieced at avoiding a prosecution Ifthe offender pays the amount set out in the wten notice within 30 dys, ‘An admission of guilt fine can be fixed by the Prosecutor and upon payment thereat the offenders ‘excused from attending the ral. Admission of gilts a special exceptional pocedute which hasbeen enacted to prevent nermal court procedure fom teinglooded” by te large numberof minor fences (Qans 1990 (0) SACR 75 (1) 771). n Sv Engelbrecht 2007 (1) SACR 130 (1) the accused having pald the ul ine before reduced by the public prosecutor Iseniled toa refund, The magistrate not having esa 56‘conditions imposed by that court onthe accused, Section &SA apples in respect of minor offences Tefered fo In Schedule 7. See section 63A (1) ‘Section (SA is clear regarding the circumstances under which che head of prison may apply othe ‘court as wel a for which offences andthe procedures to be followed and practitioners should take due notice treo. The section Is almed at assisting indigent remand dtanees who cannot afford to pay the amcunt of bal seo no balls set tobe released under very stingent conditions ts fo the head of prison fo lodge such an aplication in writing and setting out his or her concerns withthe ‘conditions in prison. This is done in lason withthe DPP who must sue a certificate of consent. ‘when the information Is paced before the magistrate and he or she sstsied thatthe requirements Ihave been met, he or she will authorize ther conditional release of reduce the amount of bal, Seaton #96 of the Corectonal Services Amendment Act of 2011 was Inserted a 3 means to monitor the continued detention of remand detainees where ball bas not been granted or once ‘granted but because pail conditions were breached, ball was evoked by the courts. Section 490 eis 8 maximum incarceration petiod of two years by which time a remand detainee would have been Drought o out at least the months immediatly prio othe expiy ef such two years, An inguicy must thea be held into the drcumstances of the detention and what should be done about seme Read ‘the section end assst your clients whee it is posible, SELF-ASSESSMENT QUESTIONS 8) Using the information on pages 46-47 of this manusl, erate a check that you could use to ‘ensure that you collect al he relevant data fo socute the accused's release from custody (15) b) To is charged with the commission ofan offence and ie taken to custody atthe Kempton Park Folic Staion. Her father Dino would Ia to know Fhe can go to the police station (2 request tat To be releasod into is custody. Advise him on whether she can get poco ball Andis, what stops must be taken fortis purpose. o ©) Uist te § factors mentioned in section 60) ofthe Criminal Procedure Act 1 of 1977 which will considered by a cour in a bal appicaton (19) <4) Your len, Mr Kram, consuits wth you and informs you that he was involved in a motor vehicle Accident and thatthe investigating offer, Seg. Greg, informed your clent that ha is going {o be crested for culpable homicide. You eaneut wih your ci before you take him (0 the Investigating officer. Namo 10 important facts tat you wll ascertain rom your clnt to enable you to tomple his affdait for an eppesed ball application. 0). ©) Cann investgating offcor grant ball under cotaincxcurstances? Yes/No o 1) Cana prosecutor grant bal under certain circumstances, without #courthaving te decide over bal? YosiNo ” 9) You have presented your case in a ball application mate. List he powers thatthe court has afer bering this application. @ 1) Themta is charged with assault with intent todo grievous bodily harm. He Is upset because the magistrate refused his aplication fr bal Advise Themba on he steps that he can take lo address this mater and hight the procodure that must be followed to take the nex step. 9) 1) Broty sscuss Section 62 ofthe CPA. 14) |) True eae: Hearsay or opinion evidence can never be heerd ata ball application hearing @ 1) Bit discuss the pre and post constiution positon re who bests the onus of proof in bail ‘appetion meters. o eIssh 546312 Although the CPA does rot prescribe the procedure that need to be adopted in ‘ringing a renswed aplication fr ball Bu our courts have already stated that he usual modes of presenting eidence Le. ty lading viva voee evidence ct on 2Mdavit. amplified by documentary acd ral evidence may be used. ee vDe Villers 1996 2} SACR 122 (1) 12411256. REFUSAL OF BAIL - APPEAL TO THE HIGH COURT Sectlon 65 (1) (of the CPA provides thatthe accused who feels aggrieved by the tefusal ofa ower court to rdease inv on ballot by the imesiton of any tall onions, hehe may appeal agaist such retusa othe imposition of such condition to the superior coure having frsdltion orto any judge ofthat court if the cout Is ‘ot siting Take notice that You do not have to seek leave Co appeal againot the decision ofthe lower course § v Mohammed 1999 (2) SACK SOF (©) SI0F ‘A local division ofthe Sueme Coutt has jurisdiction to hear such ah appeal. The appeal may be heard bya sine dge, ‘The procedure tobe followed in an appeal othe local division sas flows: + Dra a notice of appeal; + raft a power of attorney and arrange forthe accused to sgn and intial every page thereof + The notice of appeal shoul be served on the Cetk ofthe Court, the DPP and the magistrat * Oban the reasons from the magistrate; * Obtain a copy of che court proceedings from the Clerk of the Court, o if mechan ically recorded, from the compary responsible for transcribing the mechanically ‘eootded proceedings (usually the Cerk of the Court wil require payment of & Aeposit pending the servis thac they at to rendered) * Bile? counsel (r do it youself IF you have right of appearance in te High Cour) furnishing hiner witha copy of the cout record, the magistrate’ reasons and ‘he notices of appeal In over for him to prepare his heads of argument; + As soon asthe heads of arguments ate received fom the advocate the case record ‘should be compiled and inexed, after which It shouldbe served onthe DPP and Registrar of the High Cour ‘A notice of se down wil be received from the Registrar * The attorney must inform counse acordingly and attend court atthe heating. Although It has been stated, tis worth repeating, the accused is obliged to serve a ‘copy ofthe Notice of Appeal ox the DP and onthe magistrate ras the case may be on the Regional Con magistate. The magistrate or Regional Court mapstate must forthwith furnish the reasons br the decision to the cor or the judge, asthe case may be, ‘The question may be posed, may I include in my grounds of sppeal any new facts that have come to light after the judgment inthe lower cour but Before the appeal I heard in the High court? The answer: an appeal doesnot le in respect of new facts ‘whlch arse or are discovered after the decision against which the appeal is brought luless such new facts ae fist placed before the magistrate ot replonal maglstate ‘against whose decision the appeal is brought and such magistrate or regional magi trate gives a decision against he accused on such new facs. See Sv De Villers 1996 @sAcR 122 (9. ‘The cour or judge hearing the ball appeal may inthe exercise ofits appellate jus Aiton, confirm te esa of all, cr set aide and granc ballin he amount and ‘pon the conditions that it deems eppropiate. See van der Berg 254 In terms of section 65 (ofthe CPA the judge hearing the appeal shal not set asde the dedsion agaist essa 52639 ‘The probabicy of conviction -the strength ofthe state's case is applicable; ‘The protablity of an acquital ~ che weakness of he State's case Is applicable, ‘The accuses ability to travel and to sete himheset in a foreign country: ‘The ime period the accused will spendin custody awaiting finalization of his ra Evidence that hese wil not communicate with tate wlenesses or isnot able to communicate with tate witness sve fancial status aad the aiovunt of ball which hese wil Be abe to pay, See section 60(9) and Acheson 1991 (2) SA 808 (Ni). See section 60 (2B) of the cA, ‘Suggest conltons of tall when necessary: ‘he law applleable to every aspect to bal; ‘Any ther Factor relevant Le ness et PRINCIPLES CONSIDERED BY A COURT IN A 3AIL APPLICATION ‘See Sections 60(1) to 60(84) ofthe CPA. ‘The basic principle is to serve the best Inceest of justice. This can be found in the ‘considerations set out in secon 604) ~ (9) ofthe CA The term interests of justice is frequently encountered inthe provisions. The cout ought to consider the interests che Sate representing society and balance that aginst the rit of freedom ofthe Individual. See van der Ser 66 with reference to Sv Damint 1999 (2) SACR St (at 47 in general the court shall always grant ball where posibe unless there isthe Uke hood thatthe release of the accused wil Jeopardlze the iterest of utc, expecally ‘where there is evidence thatthe accused wil not stad is eal that he wil interfere ‘wih sate witnesses that he wil commis father offences ete. Inv Van Wyk 2005 (1) SACR 4 the cout sald tha the funtion of court ina bal application sto prima fate determine the relative strength of he state's ease and not to make a provisional finding of gil or innocence. Ball will not be granted Ifthe intrest of justice wil be Jepardized The interest of Justice wil be jeopardized in circumstances mentioned in Section 6O¢)- Sections 60) to (Ba) give guidelines how to incerpet section 60(9) But che converse aso apes in that f any ofthe factors relied on in section 60 () ar probable ici a factor thatthe ‘nue wil take into consideration to determine If the nterests of justice wll be served. See $v Stanfield 1997 (1) SACR 21 (©) 254 ‘The factors mentioned In Section 6048) are + Whete there is alklihoed thatthe accused, If he or she were released on bil, will endanger the saety ofthe public oe any pacular person or will commit & schedule I offence; or "+ where thee isthe lelthood that dhe accused, ithe or she were released on bal will attempt to evade his or her tial; of * Wheee thee isthe lketIhood that the accused, Ifhe or she were released on bail, will attempt ro influence or intimidate witnesses o: to conceal or destcy evidence: "Where there isthe likelIhood that the accused, Ihe or she weee released on ball, will undermine ot fopardie the objectives or he proper functioning of the time inal justice system, Including the ball system: Where in excepconal circumstances there i the Ukethond that the release of the accused will lsturb the public order or undermine he publi peace or security. "The court is thus also entitled to refuse ball i the safety ofthe accused might be jeopardized. ee Sv Schietkat 1999 (1) SACR 100 () 104. eIssn 50637 hat would be done about i? ‘This causes a great injustice to the accused. Toad tothe justice isthe fact that te lawyer on behal ofthe acused does na object othe postponement and passively accept the postponement. Such conduct elects pooty onthe right the feedom and Algnty of the accused. If you are confronted with such a sitation, consider the ‘wording of section 80 (6 (2) "the court may postpone’ Which affords the cour a dee- ‘Non whether tallow such & postponement or nok. Ask the court to dlsmiss the ap «ation fr postponement and to hea the application fer al et down for that day. See Shete v Diector of Public Prosecutions and Another 2004 (2) SACR 92 1) discussed ‘by Mokoena $7. The secton also authorizes a court to postpone the ball proceedings fora period ‘not exceeding seven days ata time: The numberof days isnot cast ‘stone that you cannet ask the cout to postpone the matter say fora day or two espe {aly wnere tor example the address ofthe accused needs tobe verified Because Fall applications ate ingulscorial courts should be encouraged to play a more acive role In finalizing ball applications. Se Majallv (2011) ZAGEJHC'74 ATS. Mokoena at 58 makes avery valuable pint in suggesting that courts should not just accep the Ipse Aix ofthe prosecutor without Ingurig Into the reasons behind the pestponemest Prosecutors should also not be allowed to buy time to further thelr investigations te ‘organizing lent parades or seeking the DNA results etc Challenge those unacoep- table practices, For postponement of ball proceedings see section S0() (ofthe CPA. Read then also under the heading "Power ofthe Magistrate's Courts in ball Proceedings" De Rebus Noveriber 2008 page 8 and the comments ther on inthe De Rebus January /Pebary 2009 under the heading “Ball CPA distinguishes between suspects and accsed "page nd € thereof. The writer inthe fist instance answered o page 7 of De Rebus Apt 2003. PROCEDURE AT BAIL APPLICATIONS Cone of te most important aspects introduced by the new 197 legislation is that an socused Is now reguied In ALL ball applications to Inform the court * whether he has previously been convicted of any offence; and * wether hei currently out on bal in respect ofan offence or does he or she have any other oustanding cases agains him or her. See section 60(118), ‘This aspect is crucial forthe outcome ofa ball heating and is precursor to whether ‘he accused wil get bal er not What the cout ths look ats the conduct ofthe appli ‘ant before the present ball application before the court and whether or she has ‘the propensity to commit crime. If answered Inthe posite, i does not Bode wel for ‘the applicant being granted ball. But thea it depends very much on when the previous convietions had taken place and che type of offences in relation with dhe one with, whieh he or she Is now charged with. The accuses attorney is entitled to answer on behalf of his cent but the cour is then required fo have the accused confi the correctness ofthe dicosure, ‘A wlll failure by an accused to comply withthe disclosure requement is made an offence punishable by a fine, (R40 000 “deterned In accordance withthe Adjust. rent of Fines Act, 1991" cr to imprisonment not exceeding 2 Yeats) ‘Although the subsection tse does not compel dscosure of each and every previous conviction its obviously a requlrement because the amendment to section 66, dealing with cancellation, allows a court to cancel ball if an accused has not cotely dscosed all of his previous convictions. 'Sub-secton 61a of the CPA provides that where an accused is charge with an offence listed In Sthedule 6 (See S' fosepts 2001 (1) SACR 689 (C) regarding che ‘question of precisely how te tobe established that the accuse fs being charged With a Schedule 6 offence, the Court shall order thatthe acused be detaiied unless ower+ Save for disclosing the personal crcumstances ofthe applicant and some periph- tral Issues, the alidavt generally doesnot embody the merits save further for Genial of any invelvement ‘The applicant generally doesnot cvulge his or her defence save for vague and general comments about his of he Innocence, * The applicants not subjected to coss-examination; ‘But in bail applications today, where an aplcan aces scious charges and bears the ‘onus of proof before heer she can he releaed on bl, the applicant need to convince the ‘court through convincing evidence and argument othe scales to pinto thelr avout, 1 may be dieu to persuade a cout that "exceptional creumstances" exist where the accuses evidences not tested. In $v Mataboge and Others 191 (1) SACR £39 (8) the court when efersng fo 3 v Dake 5 v Doyle 1965 (1) 8A 821 (W) srs he need for oral evidence to be adduced under oath espedaly where Is ‘daraning allegations ‘whlch need serious ancwering. Not placing exculpatory facts before the cout would have a substantial bearing on the outcome ofan aplication for bal. ut, despite that ‘what remains is that thet sno authority that sets ou tha allure by an applicant to present oral evidence Is deisively detrimental to hs or hex ball application Se Sv De ‘Kock 1995 1) SACR 209 (7) a 508. Se also Mokoena A Guide to Ball Applications 2012, '55. Where however the applicant does choose to give oral evidence, i wil have greater probative value than than handing up an affidavit with an ex parte statement The Feason therefor isthe apllant may be subjected to cess examination, See Sv Pienaar 1983 (1) SACK 178 (W) 180; See also Sv Teabalala 1998 @) SACR 259 (9 272. “The above meationed principles may have the same bearing onthe State choosing to hand up an afdavitconaing an ex parte statement instead of alin the invest. gating office to give orl evidence. See $v Mpofana 198 (I) SACR 40 (TH) 46 whesein the court hed hat although the state Isnt obliged to lead viva voce evidence in ball applications hey ae ollge to place suficent facts before the courto make a proper decision, also seems fasionable these days chat in opposed ball applications, the opposing partes present thelr evidence n che form ofa founding affidavit by the applant, followed by an answering sfidavi by the State and then a replying afMidavt ty the applicant. Although itamounts fo an unusual procedure, els a recognized procedure ‘See S v Tsabalala 1998 @) SACR 259 at 263 Although courts would find i easer to ecide the question of tall onthe bass of affidavits i say application involving say 4 single affidavit, Where both the applicant andthe Sate present a series of ada. ‘its involving material disputes of fats. i becomes trickier. The dificult in delding cases in general fom affidavits was once expessed by Culewis JP In Deug Gib ¥ {ysol Lid 1924 TPD 6:4 at 690. Tis was confirmed more recetly by the Supreme Coat ot Appeal In $v Mathebula 2010 (1) SACR 55 (SCA) at para (1) In whieh the court hed that evidence given in tal applications by way of aida, Is ‘ot open to testy crossexaminaton and, therefore, less persuasive Is espekilyin instances ‘where the evidence given by the stae Is of such compelling nature that mere denials ‘will simply not benef the applicant. What is then required of the applicant Isto éduce rebuttable evidence sutiiendy soto discharge the onus, See $ v Matabogo and Others 191 (1) SACR 539 (@) at 547. ‘Those considerations should be full weighed up before you and your dient decide oop for conducting the ball appliaton by way o affidavit instead of oral evidence Althogh on the one hand it may racially be to your den’ advantage, onthe other It ‘may be fraught with dfcuty in that viva vooe evidence aad allowing your elent to ‘be cross-examined, may carry greater weight with the cout. ‘The onus in bal aplications as stated ealer depends onthe Schedule under which the offence) with whic the accused Is charged. The discharge ofthe onus is based on the cv law standard, namely, proof on a Balance of probabilities, See Sv Ehrich 2003 (1) SACR 43 (SCA It isnot an easy enus.The cour also has mich greater inguis itril powers in deciding whether bal shouldbe granted or not. See $V Mabena and ‘another 2007 (10 SACR 482 (SCA). The court may cal for mare evidence even sses eLSsA a664 (CIRCUMSTANCES WHERE BAIL IS NOT GRANTED BY THE POLICE OR BY ‘THE PROSECUTOR ‘The various offences whlch are referred o In Part land of Schedale 2 ofthe CPA Incude, inter alla, possession of or dealng In dependence producing drugs, murder, rape, robbery and assault when a dangeous wound Is inflcted and are offences In respect of which a police ial may no: grant ball. Persons in custody fr alegedy having committed any such offence can possby be graned ball by a prosecute he offence sisted under Schedule 7. Ay oter instances wil have tobe teered to cour For the latest offences created in terms of he Criminal Matters Amendment Act 18 of 2015 involving the violation of ssential nfastuctue’ ee the section 2 which places {the probtition of police ball and prosectorial ball for offences involving ferous or nonferrous metal which form prt of easel Infrastructure all thowetnstances an be brought in court as provided for in section 69 ofthe criminal Procedure Act. BURDEN OF PROOF Proc to the commencement date ofthe Interim Constittion in 1994, the burden of| ‘prof inal bal applications was onthe aeused to show on a balance of probes thar the application shouldbe granted - see Hudson 1980 (2) SA 148 (Hn terms of sectlon 38(1)() of the 1996 Constitution an accused (detained person) has the ‘ght to be released from detention ifthe interests of Justice permit, subject to reasonable conditions. It was therefore cear that the State had fo convince the court ‘thatthe interests of justice Indead roqured thatthe accused be kept in custody - gard & Another v District Magistrate, jeannesburg & Others 1) 1994 @) SACR 304 (W) and Magano & Another vDisrce Magistrate, Johannesburg & Others (2) 1994 (2) SACR 307 (W), This didnot necessrly mean that the State now cated burden to prove thatthe accused should not be feleased on ball tn fac In Prokurur-Generel ‘van die Wiowatersrand Plaslike Atteling v Van Heerden en Andere 1994 @) SACR 1469 (W) and Blish en Andere v Pokurea" genereal WPA 1994 (2) SACR 577 (WLD) It was held that chete should not be any om Inbal applications. The enly purpose ct a Durden isto enable the cour to make a ding atthe end of the hearing a to whether ‘he accused should be released or not. was further stated thatthe courts dyin a bal application was an investigative or inguistorial one wheel the State would commence withthe lading of evidence, ‘This view was enforced withthe enactment ofthe ciminal Procedute Amendment ‘Act, 1995 (ACt 75 of 1995), which amended various sections pertaining to bal appt. cations, see sections $0(6, 60() and 603) which sections have been further amended ty the latest amendment Act of 1997 In 1995 section 60(t) edntroduced an onus on an accused In certain cicum- stances, namely wen he or she was either charged with a Schedule 5 oence or when, he or she was charged with having committed a Schedule 1 offence whilst on bal for a Schedule 1 offence. See Dhlamanl 1997 (1) SACR $4 (W}; Mbele and another 1996 (1) SACR 212 (W); Vermaas 1996 (1) SACR 528 (7) and Stanfield 1997 Q) SACR. 221 (9. The 1997 Amendment Act retains the “reverse” onus clause and goes further. Section 60(1) is now split in two. n regards to the new Schedule 6 offences, not ‘only are such applicalons required to be heard by a court, which does not mean 4 Regional Court save where a the DPF s0 directs In writing but an accused Is required to adduce evidence to satisfy the court that “exceptional circumstances” exists, which perm hisfher release. See section 60 (1) (a) ofthe CPA In regard fo the new schedule 5 the acused is now also required to adduce evidence, merely to satisfy the court thatthe Interests of justice permit his release. See section 60 (11) (B of the CPA. ‘That the onus on the accused to prove that exceptional cumstances as contr plated by section 601) of the CPA exist was recoafizmed in v Mabena and Another 2007 (1) SACR 482 (SCA) the court also hel hats prope ada inquiry sto be held to determine whether provisions ofthe CPA have been met and issued an de that he ranting of ball be st aside a nullity where twas not done shInvestigating oficer Is atached to a specialist unit. Generally, in all major centres specialists bal courts have been established to hea tall applications. They form part ofthe lower court structure Le. the disc court. Ea applications involving very Serious offences and lesser offences are heard in these courts. Bu, there are courts ‘where certain serous offences must be brought before a Regional Court for purpores ofaball application. 6.4 WHO IS THE INVESTIGATING OFFICER? ‘This information is important to obain as itis necessary to communicate withthe Investigating officer inorder to ascertain Further information with regard tothe charge and his attitude towards a ball application. 1 frequently happens thatthe question of bail is negotiated between the investigating effer and the attorney and these results In a substantially shorter court aplication. if possible, it is advantageous to forma friendly relationship with the investigating offer ashe wil be able to assist In furnishing te etorey with information, and hs attade towards the attorney's applcation may be a crucial factor when considering granting ball. K must be remem. bered chat the decision on whether the ball applicator i to be opposed or tlie, to ‘a certain exten, with the prosecutor. But, the investgatng officer has a say inthe ‘matter. The ultimate dedision is however, slely inthe hands ofthe Court 61.5 IN WHICH COURT WILL THE ACCUSED APPEAR OR HAS HE ALREADY APPEARED? ‘This information may be obtained tom the investigatng ofcer ot the police station where the aces is being detained. Should the accuse ready have appeared wll, ‘be necessary to ascertain this Information from the person who was present atthe Iearing or, alternatively, co vst the magistrates couré and search te cna record book in onder to ascertain the precise date. They may also confirm whether the accused stl kepein the police calls or whether he or se has ba moved tothe prison and kept in the avalting eal etion. 6.1.6 PARTICULARS OF THE ACCUSED ‘The full names ofthe accused, hls residential adress andthe ime he or she has resided there, family ses, place of employment, finaxcal dreumstance and asses, amount of money for bal, personal detalls Including evidence of good character, pevieus convictions and outstanding cases, detals of the accused being a flight isk Le travel documents, probability ofa conviction are all particulars ell fo a ball application "This information i necessary forthe attorney's representations tothe investigating fier andthe senior public prosecutcr and, should bal not be granted by agreement, itil be necessary to furnish this informaon to the cout. Shou thls not be aval: able, it may be obtained from the accused personally once he has been located and ‘list he in custody. 62 MAKING ARRANGEMENTS FOR THE APPEARANCE GF THE ACCUSED AT courT 1f teattorney does not know whois investigating the case, he shoud telephone the polcé station Winer the accused is being detained and enquire from the charge office wheter the accsed isin fact Inthe police ces and who the investigating officers. The investigating officer should immediatly be telephoned in onder to ascertain when the accused will be appearing in court, on what charges and ‘wheter there will be an objection to any propsed ball application ‘Should it be possible ro obealn bal om the pli, the attorney shuld vst the police station and make arrangements for the accused tobe granted bal forthwith by 3 pollee efit of or above the rank sf non-commissioned officer, oussection 72, Fan accused isin custody In respect of an offence and can be released by a potce ofa ‘oc cout on ballin tems of section 59 ot 60, the plice offical or court can instead of granting bail, release the accused in the case of certain offences (section 72(}) and wan hm to appear on spec. ied date and time before a specific court. Ifthe accused is under te age of 18, hes placed in the ‘ate of his guardian and such person is Warned to bring the accused to court onthe appaved ie and pace. Where a police offical releases an accused in terms ofthis section, he must anda writen ‘otk w de accused In which te place and time upon whic the accused must appear, are filed in Stily speaking therfore only a court can give an oral warning to appear. (i practice ths Is efered to as “ease on own cognizance", ‘The Incletment isnot discussed in detail here, Bu it is worth discussing briefly the nature ofthe proces. Section 144 ofthe CPA deals withthe mater. When an accused is arralgned to stand tial Jin the tigh Court, the charge is contained ina document called an indictment. Besides eontalaing ‘he charge, the indictment shall include the personal particulars of the accused. In addin, the Indctmen: shal be accompanied by a summary of substantial Facts ofthe case as well a8 alist of the names and addresses ofthe witnesses the State intends calling The Indictment together with the other documents referred toheretnbefore, shal be served onthe accused in the lower cout at east 10 lays befor the tral date unless the accused agrees to a shorter pio, ‘58. DIVERSION OF JUVENILES ‘The Child justice Act has specially povided fo children in conflict with the law tobe diverted away ftom malnsteam criminal proceedings. The legal practitioner should explore tis option wen ‘presenting a juvenile. ‘SELF-ASSESSMENT QUESTIONS 1) Which ate the 4 most important methods used t bring an accused to cour? © Problem question. ©} Draft the application which the DPR PP or Felice Ofice wl present to the court forthe purpose of suing a warrant. (0) 4) Assume that you ae arrested on suspicion that you hold key Information re he commission of. an offence. What dtals are you obliged to give tothe officer and what happens If ou fil to dose? o ©) italy discuss winether the police can use excessive force to testrain a suspect fom Neng, (ao) Analyse che following set of facts and answer the questions that follow: as) Imagine that you ae the prosecutor ina eriminal mater and you belive tha the accused isnot at isk of leing (0) Which method would you use to ensure that he appears in court? (@) When s such a process usually used? (il) Wha proress is used to implement the method identified in) above? (i) What happens if che accused falls to attend court despite the proper procedure being fellowed? 18) Under what conditions will a written notice to appear be used instead of any ofthe other rmothods to ensure tha the accused atonds sour? o 1h) Brey alscuss Section 72 ofthe CRA. o sa 0‘complainant o stop. The complainant was unavare of any attempt to arrest him, The ‘cout held the Appellant's conduct to be unlaw ‘See also the following “Regmatige Geweld by Noodweec en Arcestasies inthe Society News of Law Society of The Northern Povinces August 2008 page 25 and “Regmatige Ceweld by Noodweec en Arrestasis~ artikel 49 Wet 61 van 1977 — nave tendense” October / November 2008 issue ofthe same publication on page at 5.2 SUMMONS Read section 54 of the CPA. In cases where there is no reason to assume that the accused would fee or interfere with state ‘witnesses, cis fr beter o secure hls attendance in cout by way ofa summons chan to subject him to the embarrassment of an arest. Se Tsose v Minister of juste and Others 195% (3) 8A 10 (A) where ‘Schreiner JA held “where thete Is no utgency andthe person to be charged has a fixed and known ‘address n such cass itis generally desirable that a summons ould be used Sec also More 1993 {@) SACR 606 (W. With our correctional Tallies bursting out of thet semis and the overcrowding ‘fou prisons threatening the constiutional right ofboth Sentenced prisoners and remand detainees (avaling ral petsoners including the right fo dignity (ection 10 ofthe constitution) and freedom fo Security of person (section 12 ofthe Constitution, this form of tier attending court wil in the appro. Plate cases bea far more affective way to deal with those who commit crimes. See jacobs 2011 (0) SACK 490 (ECP. Besides these days an increased numberof cases are Fnallzed through the process of mediation, thre is therefore no reason why the police need to wesort co arrestin cases involving less Seroas offences. The accused could of coutse be taken ito custody even after a summons to appear ‘ona certain date hasbeen served on him. Such a step wil be taken where it appears that despite the summons he does act intend to atend court ‘Summons is used fora summary tll ina lower cour where the accused Is notin custody ot will ‘not be arrested, The prosecutor prepares the charge and hands & together with information regarding the name, residential address and eecupation or status of the accused to he Cleck ofthe Cut. The Crk ofthe court chen issues a summons containing ce charge and the sad information a8 well as the pace, date and time ofthe appearance ofthe actsed In court (section 54(, "The summons, together with s0 many copies thereof as there are accased to be summoned, is handed tothe person who Is authorized to sere summonses. terms of section 329 police officals ate also authorized to serve summonses A summons Is vald throughout the Republic and can be served anywhere (ection 328), ‘Asummons can also be sent telegraphicaly and serving ofthe telegraphic copy thereof has ‘the same effec as If che original document has been served (ection 330). “A summons i served on the person mentioned therein by Eanding ie to him, of If he cannot be found, by handing it toa person a his residential or work or business adress who I appaenty over ‘he age of 16 years and who Is apparently residing or working thee (section 442)a). Serving must be effected atleast 14 days (excluding Sundays and public holidays) before the date determined forthe ‘ral (Section 54(3) A return bythe person who served the summons tothe effect that serving has been effected in acordance with section 542). can, where the accused falls to attend the proc. Ings be handed In atthe court and constitutes prima face pret ofthe service (section 42K). ia summoned person falls to appear In court onthe applated date and time or fils o remain sent, he Is gully of an offence (eecton 85(). I the courte satefled from the return thatthe ‘Summons has been properly served and thatthe accused fllel to appeat oto remain present, the ‘court may Issue a warrant for his ares. In terms of § SS(ZA} the court must endorse the warrant of arrest tothe eflet that the accused may admit his gull in respec ofthe offence in question and may ‘ay te fine spalated in the summons without apeasiag in cour, The court may make a further endorsement on the warrant of acest othe eet thatthe accused may, upon ares, admit hs guilt In respect of the fallure to appear in answer tothe summons by paying an amount stipulated Inthe \wartent, The amount so stipulated shall not exced the amouat of the admision of gil fine that could have been imposed for such an offence. should the accused that fale to appear or remain present, and i brought to cout, che court may summarily ingure int is fllure. The court may Convict him ofthe aforesaid offence unless the accused convinces the court chat his ale was not due t any fault on his par (section 55(2). eLssk 38ARREST WITH A WARRANT ‘A magistrate or usice ofthe peace Issues a warrant on written application ofa DPP, public prosecutor o police ofa. ‘The application must comply with the following: must + Mention the offence which has allegedly been coms; + State that a reasonable suspicion exists based upon information obcained under ‘oath chat the person In respect of whom the warrants requested, has commited the alleged offence: + Be alleged thatthe ofence has been commited within the atea of jurisdiction of. the magistrate concerned or, incase ofa Juste of the peace, within the area of Jurisdiction of che magisvate In whose area the aplleaton ts made, Where the fffence has not been commited in sich an area of jurisdiction, {tmust be alleged that it is known or that is suspected on reasonable grounds thatthe person in respect of whom the application Is made, sin such an area of jurisdiction. ‘These warrants ate usualy referred to as 50 warrants. ‘Warrant issued in one district are also valid n ay other district throughout the Republic and can be executed anywhere (ection S28). Wazrans can be Issued on any day and remain valid until they are executed ce withdrawn (ection 45(8). Warrants or atest can be executed by peace officers, Le. magistrates, justices ofthe peace, police officals, persons mentioned ina selon 35 notice and members of the Depart. ‘ment of Correctional services. These persons are indemnified in sections 46 and 33) agains lability If (en reasonable grounds) they tke the wrong person into custody for act on a warrant whichis defecve due to an obvious defet nthe contents ot frm thereof. The test isan objective one (hinister van Wet en Orde v Vander Heever 1982 (SA 16(), “The CPA does not deprive the aggrieved person of the right to insite a evil aim for damages (section 53. [ARREST WITHOUT A WARRANT Section 40 of the CPA regulates the powers of a peace oie to take persons into ‘custody. (ee the text ofthe Ac, The Teasonable stspcion” referred ton section 40(), does not imply a prima facie ease. Reasonable sussicion doesnot requlte certainty. A ‘vague suspicion is however nota reasonable suspldon. The tei i that ofan objective ‘easonable man. (See Minister of Safty and Security & Another vSwart 2012 2} SACR 1226 (SCA). at (20), The peace officer executing the arrest need not have the inten ton fo tring the arzesed person before court for purposes of prosecution. Reasonable suspicion together with the Icentlon to Insitute further investigation before a ded sion is made to prosecute, i sufficent (Duncan w Minister of Law and Order 1984 (3) SA 460 (7 and Mabona ¥ Minister of Law and Orde 1988 @) SA 654 (SE), In Minister of sfery and Securty v Glsson 2007 1) SACR 181 (E) the police officer Ald not see the alleged criminal offence himset bat relled on anothers report. The ‘court held thatthe artest was not justified within the meaning of section 40 (1) (@) ofthe CPA police officer who had no personal knowledge of the alleged crim {nal conduct was therefore not propery laa postion to decide whether er not an offence had realy been committed. In Gellman v Minister of Safety and Seculty 2008 (1) SACR 446 (W) the court held chat even where police ofcer reasonably suspecting tat Schedule offence was commited he or she having to exercise dscretior In determining whether to arrest Suspect without warrant, fo obtain watrant orf issue summons. Inthe absence of exigent circumstances sich a8 a rsk of imine fight the officer should at least obtain warrant before effecting atest. In respect ofthe powers of a private person to artes se section 42. Also read the article “Verbode Immigrant Vari Buurstate Soos Zimbabwe” in the Law Soclety of the Northern Provinces publiaton Soctety News August 2008 sue on page 15. eIssA 365. METHODS OF SECURING THE ATTENDANCE OF THE ACCUSED IN couRT RANGE STATEMENT: Expla, draft and perform al sleps needed to secure the attendance ofthe accused lo curt = ‘SECTION OUTCOMES: ‘Aer completing ths section you shouldbe able to: ‘+ Uist the 4 methods thal ar used toring an accused fo court. + Distinguish between errestwih a warrant and arest without a waren. + lpicate what te content ofa writen notice to appear i. *+ Explain te term ‘valid service’ of @ summons. + Explain using a given set of facts what woul happen 2 cll in uniawfulyanested. Read sections 38; 3955; 54-56 and 72 of the CPA and section 2502) of the Constiution. ‘There ae four methods of ensuring on accused's presence athe ral: + arreyeustody, + Summons; + eiten noe; + Waring. 5.1 ARREST Arrest sould normally only take place in terms ofa warrant. In exceptional cases an arrest may take place wihout a warrant, namely In dreumstances mentioned in sections 40 and 42. Although the Constitzion does not provide that a pliceoficer shoud refrain from arestinga spec, a ess var sive option to bring a suspect to cout would be effective as wel See Minster of Safety and Security \ SeKioto & another 2011 (2) SACR 3 (SCA) at {04, (5), {22}, (25) Warrants for arrest ate not issued to private persons and all private arrests would accordingly be without a warrant. The powers of peace officers where a petson Is caught in flagrant deli, ace Wider than those where the arestis made onthe grounds ofa reasonable suspicion ofthe commission ofan offence, ‘Both an arest with a warrant and an arrest without a warrant must comply with the requte- ‘ments lid down in section 39 before Ie would be regarded asa lawful arrest. The lawfulness of an arest will be determined by the fats of each situation. See Minister of Safety and Security v Van ‘Mekerk 2008 (1) SACR 56 (C) at {120). An arest which does not comply with these requirements ‘willbe unlawful. See Ramphalv Minister of Saety and Secsety 2009 (1) SACR 211 (Eat) In the event of you cllent being arrested unlawfully an action for damages maybe instituted against the person that executed the arrest. Note that an Improper motive doesnot affect the lawfulness of an arr. (Winister van SA Plislev Kraatz 1973 (3) SA 490 (A). The enus co prove that an arrest was lawful rest onthe arvesting officer. See Minis. of Safety and Security & Another v Swat 2012 2) SSACR 226 (SCA) at (19) ‘The requirements fora lawful arest ane: "The aresed person shouldbe informed ofthe reason for hs arrest-se section 3 of the Consdetion: + The taking of physical contol over the arrested person by the person excouting the ares, unless ‘he amested person submits 1 the arrest. Physical cottel means touching the arrested person or the submiting of hls body by force when the arrested person resists the atest oles. The Amount af force ean extend fo Kling the suspect ft compiles wit the requicemens of selon 4941) and 492, ess 4realize tha wll nthe long run most dfiitely prove to have been shortsighted. Ifyou succeed in establishing a relacionship of mutual trust between youself and him, tls may asset you in many ‘ways: The rosecator may be mare receptive to representations not to prosecute your cet orto wit. draw the prosecution before the lent has pleaded especially where he has to rely on what you sty ‘that you wil be abe co prove) agree not to oppose & hall application in cour; support an amount of ‘all rhe conditions upon which iis granted, as previously agreed upon between jou an him: et ¢ trial date which also fs into your schedule; drop some charges or acepta plea of guilty ona lesser charge: et 4.3 DIRECTORS OF PUBLIC PROSECUTIONS (DPP) ‘what hasbeen said about che prosecutor, applies muatis mutans tothe DEP and the members of hisetate 4.4 CLERK OF THE COURT ‘The duties of the Clerk of the Cour ae usually administrative fn nature, A suspect of accused who wishes to pay ball asset by the magistrate in court, pays it atthe Clerk of the Court who has o provide Inim wich & reel. fa person Is sentenced to pay a fine, t may be pald at the Clerk of the Court If the accused cannot afford paying the whole of ine then he may informally apply fra deterred fine at the Gltk ofthe Court. The Cero the Court then verfles the fnformaton given by the accused and ‘only after that may the accused lodge his formal application fora deferred fine with the magistrate nour. ‘The Gerk ofthe court i responsible for all eh charge sheets at court. All charge shets are kept ‘with the lek ofthe Court and he must se tot shat the charge sheets ae provided tothe poser on the day tis equired at court. The lrk ofthe Court is alo In contol o al criminal record books. you wish to requisition your clen who isin custody to appear before court ona day ater than the day he Is supposed to appear, then such reqlston forms must be handed tothe Cesk ofthe ‘Cour. The Cesk of the Court als has avery important ee Inthe process ofan appeal oe review. The appeal is handed to he lek ofthe Court who sees to it that the matter is st down fr hearing, rom the aforegong It shoul be clea that you as attorney might benef rom a good relationship with te ler ofthe Cour, the High Cour the Registrar malnly executes the faction of he Cle ofthe Court. 45 DEPARTMENT OF CORRECTIONAL SERVICES I your len Is in prison asa person awaling trial rasa convicted prisoner whose appeal or review yu are handing. You will have co consult with hin prison, eis therefore imperative that you take note ofthe provisions of regulation 125 as amended) ofthe regulations In terms of the Correctional Services Act 5@ of 1959. This regulation is quoted in fll by Hlemstra on pages 174-175 ‘You will notice that sub-zegultion ) of the said ceguation provides that the Commissioner of Correctional Services may, n certain etcumstances, refuse to allow a specific egal representative fo itt prisoner iPhe has abused the privileges afforéed to him. cis therefore imperative that you sequal yourself with the rules and regulations which ae appl- cable tothe pson where your cents being kept, in order to ensure that you wil beable to comply With dhem.Iis true that & decision by the prison authorities which makes it impossibie for you to have a proper consultation with your client is subject o review bythe High Court. This is, However, a time consuming and costy exercise which should under normal excumstances be unnecessary I'ou comply wit the regulations covering your consukatons withthe pisoner, you will normally not ind itmecessary to goto such lengths. ‘You must understand that che prison authories ate responsible forthe safekeeping of prisoners ‘and thatthe sometimes cumbersome procedures have been developed forthe very reason that some Tegal tives abused their postions fo assist prisoners (0 escape orto provide them with objets which re not allowed in prison. Ifyou display understanding fr the dificult potion in ‘whlch the prison authorities sometimes find themselves. you wil find that they will mast probebly go (ut of thelr way to accommodate our requests essa 2‘SELF-ASSESSMENT QUESTIONS 2) Read the folowing st of facts and answer the question that ftow: (5) ‘Mr Green's your cent. On the 20” October 2011 the poiceenteted his premises and seized certain documents which they allege was used to commit fraud. MrGreen examined the search warrant and s concered abou Is vallty and suspects that @rumber of ts that wore not ‘mentioned in tho warrant wore also remeved from his premises, Advise him on the folowing: (0) Whois authorised to lssue a warrant to search and seize? (@)_Whattestis used to establish whsther an object may be seed or nat? (i) Whether the seizure of unidentified items is lawl or uniawi? (9) _ Whether the search warrant must describe the exact premises that must be searched? ») Listine2 instances wnen a poco omcer may searcn your premises witout a warrant. (4) ©) Fillnthe banks (could be a wordivordsiphases that have been emsited): 10) Section 25 of the CPA says that appears to a 2 — o ‘fominiormation underoath that there are : zi na = = Yor that cam fat 8 BON a premises, i e ‘may issue a _ . : ‘Sener tha premisosin quetin orth purpose af a ‘and of ae ‘8 such pace official may consider nesesear forth «nso = te Republi oe be renance of = ven FTN . a 18) Tris o aise: The subjective opinion ofthe magistrate or justice of the peace who issues © ‘warretis subject to an objective test. Explaln your anever © ©) Baku is arested on an alogation of rape. His version is that wilt he was walking down ‘Smith Street he was accosted by a person known as Dow who hithim with what looked ke 2 pace baton. Dow didnot identi hme nr inccate that he was. peace offeer nor da he 23sk Baku to stop. Baku is qulta upset and wants to know ithe polbe ean ute fore to resran ‘someone without ust cause, Expiin to Baku what the old and evsed Section 49 provided (10) 4, ESTABLISHING RELATIONS WITH STATE OFFICIALS 4.1 INVESTIGATING OFFICER/STATION COMMANDER ‘As was pointed out above, an investigating oie is noemally appointed o investigate an offence. Tei in your own and your client) interes to establish as soon as possible who the investigating officer in your client's case is. The investigating ofcer Is the one who will Kep the police docket and will be able to inform you how far the investigation has proceeded and when the docket can be txpected to be submitted to the public prosecutor o DPP for his consideration. He wil also be able to Inform you when the results of any forensic tests (where applicable) suchas blood samples in érunken driving cases, ballistic tests, et, wil be avallabe and wil neemally also be prepared to supply you with information concerning the results thereof. This wil enale you tobe beter prepared ‘when your clients tial stats I your den is in custody, the favestigating officer will beable to Inform you where you ent is detained, whether he would be prepared tgrant ball (fitiean offence ‘with respect to which he Is ented to grant ball), and whether be would advise the prosecutor to ‘oppose an application for bai or not. Iyour lent as information a is dsposal that may asset he police in their investigation and may prove hs innocence, you may, after having obtained your cent’ essa 30In Toichv the Magistrate, Riversdale and Others 2007 (2) $A 256 (SCA) the court ‘held chat i was unlawful (o search the place of residence and seize goods where 2 search wacrant was authorized forthe search of property other than the applicants place of residence ‘Search warrants must be executed daring the day unless expressly ordered otherwise and remain valid until executed or cancelled. Duting the execution ofthe ‘warrant, a copy thereof must be shown tothe person whse rights are affected thereby (ection 2165) ‘SPECIFIC POWERS OF THE POLICE IN TERMS OF SECTION 25 Wit appears o a magistrate ora justice ofthe peace from information under oath that ‘here are reasonable grounds to believe: * that the internal secur of the Republic or the malatenance of law and order is kely tobe endangered by or In consequence of any meeting which s beng held ot {tobe held inet upon any premises within his aren of juledictions or + that an offence has been of Is being or Is key to be commited or that prepara- tons or arrangements fr the commission of any offence ate being ot ar likely tobe made in or upon any premises within his afea of jurisdiction, he may Issue 1 warrant authorlaing a police offal to enter the premises In queston st any reasonable time forthe purpose; + of carrying out such Investigations and of aking such steps a8 such police off- ‘al may consider necessary for the preservation ofthe internal secuty forthe Republic or forthe maintenance of aw and Orde ot forthe prevention of ty collence: + of searching the premises or any person In or upon the premises for any article ‘fered ton scion 20 which such police oil on ceatonable grounds suspects tobe In or upon ora the premises or upon such person; and + ofsetzing any such aries; + er she may authorize and Issue a warrant for the police to entra premises, ‘SEARCHING WITHOUT A WARRANT: SECTIONS 22 AND 25(3) fective prevention of crime requires that the police in certain circumstances be ‘empowered to search and to seize without a warrant In ordet fo beable o act swiftly Section 22 authorizes the police official to act without a warrant in two situa- dons: + ifthe person concerned consents othe search and seizure ofthe article concerned rife person who can consent the search ofthe container or premises, consents to such a search and seizure ofthe atl in question; ot ifthe police official on reasonable grounds believes thata search warrant acord lance with secon 21(1 wil be issued to im i ne apples for such a warrant and the delay in obtaining such warrant would defeat the object ofthe search, Section 25() provides that a police offal may act without a warrant fhe believes ‘on reasonable grounds that a warrant in tem of section 25()@) of) will be seed to him ihe applies for sucha warrant and thatthe dela in obtaining such a warrant ‘would be defeat the object thereof. Boshott 1081 (1) SA 393 (Tp. whether reasonable ‘rounds waisted isan objective question which wil be answered onal the fact before ‘the court. Therefore he oil wll have to show thatthe reasonable grounds existed ‘LSSA 283.1 POWERS OF THE POLICE TO SEARCH, SEIZE, ARREST; TO OBTAIN EVIDENCE AND TO INTERROGATE Read sttions 19 to 36, as well as section 48 ofthe CPA and section 14 ofthe Constitution, ‘The CPA lays down strict requlremen's which have fo be met wit regard t the investigation of offences, inorder to stikea balance between the interest ofthe State on che ne hand and the proter- tion ofthe individual's eight to privacy and cwnership onthe othe. Legislation attempts to ensire that everything is done to Investigate and cur eime, yet onthe other hand It cannot be permitted ‘that the lnvestigatve powers of the police be abused. or this reason the povilons of sections 19:36 will be interpreted striely by our courts. The provisions of setions 20-36 do not, however, nerete ‘with the various other statutory provisons Which make entering, searching, selzure or feeitire Possible. See National Director of Pblleosecuions & others v Zuma @ another 2008 (}) SACR 258 (Sci) at para (83) che court explained the ned forthe exteasive power of search and seizure provided to te investigators of the former Drectocateof Special Operations. Te requlrements for search and selzure investigations tobe Intated and conducted were comprehensively deal with in Powell NO & ‘others Van der Merwe NO & others 2005 (}) SACR SI7 (SCA). Hiemstra 30 provides alist ofthe rele ‘vant provisions, only afew of which ar mestioned her: sections 92) and 10 of the Stock Theft Act 857 of 1959, sections 31 and 8i (as amended) cf the Arms and Ammunition Act 75 of 196, 34.1 OBJECTS WHICH ARESUSCEPTIBLE TO SEIZURE ‘The State may selue the ollowing thee lasses of objects, Including documents in terms of section 20 of the CPA ‘which are orare reasonably suspected tobe involved inthe commleslon or suspected ‘commission ofan offence, ether witin the Republic or elsewhere. The testis an ‘objective question and need to be answered objectively on all the facts before the court See Néabentv Minister of Law and Ozdet & another 1984 (8) A 500 (D):S \ Mayekiso en andere 1996 (2) SACR 298 (}; see also S v Roberts @ others 2013 (4) SACR 369 (EC) + whlch can provide evidence ofthe commission or aleged commision ofan offence, elther within the Republic or elsewhere; (Note thatthe “evidence” which is refered ‘o need not comply wit the requlrements of admissibility of erdence in respect of ‘tral, but means infomation which wil be required during te police Investigation (Anderson v Minster fJusce 1954 2) SA 473 (W) Privileged documents cannot be seized (Prnsloo v Newman 1975 (1) SA 481 (A) 493F-6 and SASOL Il (Edms) Bpk v Minister van Wet en Orde 1991 (3) SA 766 (I). Contra $ v Du TOK en andere 2004 (1) SACR341 (1) In which a prvlldged document was seized knowing that ie was prviedged. The cout held that to determine the question whether an accused can have afl cal canbe determined only ex post facto. ew also he & eterminaton made ar the til whether the accused sured any preucce ot rot. ee also Hiemstra 1 “bit word aan de hand gegee dat daar nie van dl pols ‘wat bes Is om besig et, verwag kan word da lle rstond moet ooede! of dokument as bewys in thot telathaar of ontcelaatbaa sal wees nie" * which are to be used or reasonably believed to be Intended forthe use In the ‘commission ofan offere. See Cheadle Thompson & Haysom Minister of aw and ‘Order 1986 (2) SA 279 (W) forthe requirements of when objects conflcated can be said to have been intended or on reasonable grounds suspected tobe intended for use n the commission ofan offence. Se also the cases Involving the ite. pretation ofthe words ‘concerned inthe commission of an offence. In Nadonal Director of Publ Prosecutions v Zhong 2005 (2) SACR $44 (W) 551 and Nasional Director of Publi Proscutions: In re Appeal 2005 (2) SACR 610 (N) 61Sbd the court stated chat there has oe a diet ink beoseen the instrument and cxime tobe committed. There are stct rules of decency and order that must be heeded during the searching of a person or premises, female may only be searched by female and certainly a ale by a male (section 29. See Smit and Mati Attorneys {8 another v Louwrens NO others 2002 (1) SACR 152 (W) eISsh 26turn on the question whether the freadom of the person in custody has been taken away unlaw- fully An order for his release is cequested. A single judge hears the aplication. The return day is ‘soon. sometimes enly a few hous after the rule nisi has been issue. In some cases it is granted ex part, without hearing the reasons ofthe respondents as to why the person in custody should not be ‘eleaed forthwith, The respondent is usually the Minister concerned pelle offials and the ofier ‘commanding ofthe prison or SAPS station wher the pecson is detail. Unlawful custody can result from afllure to comply withthe provisions of section 39 or 50 of the (PA. Refusal fo permit legal advises to vist persons in custody mayalso be grounds for an ayia. tion ofthis nature. 2.7. THE RIGHT TO A SPEEDY TRIAL Section 35(8)@) ofthe Constitution contains this righ and reads as flows: “Every accused person ‘has righ a fr eral which includes the right) have thelr era begin and concluded without vecsonable deg" often happens in our courts that criminal cases are postponed ten times or mote for further Jnvesigation, decisions frm the DPP' office, witnesses ot deckers not belng at court. many cases such postponements are Jstiied (or example where the accused is charged with smultple andor complicated offences) but where yout client is prejudiced by such postponement (be exanple he is kept in custody or where the apllaton for postponement is based on negligence of the sate or where it seems tat the witnesses) Ifate not Interested inthe cae any longer then there Is anobligation on the representative to object to any further postponements Its the duty of every legal representative fo protect his or her client's rights and vehemeaty oppose unfair request fr postyonements Fallure to guard against such abuse of the legal prowest by the State, could amount {o unprofessional conduct by the legal representative ‘There are however some golden rules to you objecting to further postponements. They Include: ‘keeping of proper records on Yur fle cover of al postpenements and dtl hero! will be crcl to effecvely give arcount ofthe history ofthe matter. Becta o the reasons advanced by te Sate for tte postponement Le. further Investigations: o get docket before cout; charge sheet incomplete; witnesses absent Always act in the best inteestof your dient Incding noe readily agreeing &o & postyonement because you donot fel lke doing te case on that day. But remember you wil not be persuasive in opposing ostponements if you have also being the ease of previous delays or unex essay postponements (fr example nt to attend the ease at cou, bang late, having more than one mse er day in ferent courts or being unprepaced forte tia), You will then find yoursen wouble With the magistrate. objecion is made against further postponements the court has discretion to grant the postpane- mentor to refuse If the cout eetuses, the prosecutor has 1 withdraw the case or close the state's case inthe event whece the accused has already pleaded. See Section 342A of the CPA in tegand to ‘the ccuts' powers when delays are unreasonable. Se the guidelines is Sanderson v Attorney General 1998 1) SACR 227 (CC) and Feed v Attorney Gen eal 1998 2) SACK 539 (8) Including the length ofthe delay; reasons therefore and the prejudice suffered by one of the partes. 1n $v Deukuda 2000 (4) SA 1078 (CO) the Constittional Court stessed the importance of distin gulshing between pre and post conviction delay. It held that in respect f pre-convition delay three [indsof interest were protected, + Tel elated intrest + Utery; and + seruly ‘ral peated prejudice could result fom fading memories aad the unaailabilty of wlnesses. eush 2A{2 SACR Sai (SCA) Sa8b.c. See also section 35(9( ofthe Constitution. See also Sv Solomons 2004 (0) SACK 137 ( wha the cour: held that i would be extremely dangerous fr court to assure that fan accused does not want to be legally represented. The court must be satsfled that the accuses choice is indeed an informed deision. But tl ight to legal representation cannot be abused by the accused either, although courts shoul be tolant in granting postponements in an endeavor forthe accused to obtln legal presentation, the tolerance is tt limlless, The court shouldbe fal o both the accused and the Stace. Unnccestrlly delays will not be entertained wher it prejudices the State ‘See $¥ Mathlkincs 2016 1) SACR 240 (WOO, 2.5. THE PRESENCE OF LEGAL REPRESENTATIVE AT PRE-TRIAL PROCEDURES See in particular the provisions of Sesion 36(2) (9 and 35(9(g of the Constitution 25.1 IDENTIFICATION PARADES In accordance with Seton 37) (ofthe CPA, a suspects obliged to attend an iden tieston parade whether he is under arrest, on bal oron warning. Iisa rule of alice practice tha suspects who takepart in aa identification parade shouldbe informed of ther ight to legal reeesentation. Police officals ae atght to ‘Inform suspects ‘hat dey are ented to legal representation in terms ofan internal document ete “Hints n connection withthe investigation of rime” ule theres), ‘Note that this rule of practice also appears on the so-called Identification parade form (SAP 325), The non-observance of these rules do not ofcourse render the evidence regarding the ideatifiation parade per se inadmissible as, Just Ike the judges” rules, they are not requirements for admissibility. "The point of departure is however that whece the suspecvaccused honesty requests legal representation, he ought o be granted the opportunity to obtain samme (Minister cof Prisons v Cooper 1978 (3) SA 512 (C) Ths apples from the time of his arest and throughout the entre criminal proceedings, wach is now a basic right In terms of section 35(2) (0) and (6 ofthe Constison. ‘Du Toit et al centain a useful dscussion ofthe diferent deniication parades and ofthe aiferent rules applicable to Identification parades. See 3-224 to 339 ee also § v Mhakaza end Others 1996 (2) SACR 187 (where it was decided on the admis: silly of an Idrtfcation parade, iis preferable todo so by way of a ral within a tal, See also the valllty of the so-called dock identifications and te requlrements In $v Matwra 20¢2 (2) SACR 350 ()S8S/-S56a- and SSF 252 INTERROGATION ‘The fact that an acused Is nt Informed of hs right co egal representation athe time othis arrest renders a statement made bythe accused Inadmlssbe should it resul in the ial being unfle andor should tbe detrimental tothe administration of justice. ‘See $v Melani and others (supa. See aso Sv Orie and Another (2005) 2 all SA 212 (© segaiding the inadmisibliy ofa statement made while he accused was unaware that he was a suspect and was not warned of hls right to remain sient. An attorney should Inform the ellen that he is entitled to insist that an attorney be present when the police question him. IF hs dent has not yet been approached by the police In connection with te allegation against him, the attorney must know that eis normal police procedure te appreach the suspect In a case and inform him ofthe allegations, ‘war hm in accordance wit the judges rues and to ask him whether hel prepared tomake a statement Legal represertatives are often of the view that a clent must refuse to make a statement. Such an approach is however very shortsighted. although circumstances ‘na particalar case may requir his approach tis wrong co generalize inthis regard Ifthe lent does fact make a statement at this stage, the statement wil form pat ofthe police deches and will come tothe attention ofthe rosecutouDPP when iris ousa 22In $v Singo 2002 (2) SA 888 (CC), adopting essentially the same approach as that taken In Manamela 2000 (3) SA 1 (EO, che Constuttiona Court indicated thatthe resumption of [nnocence as constittional right is resscted to che requtement {har gull be proven beyond a reasonable dout, whilst the allocation ofthe burden is a product ofthe right to remain silent which appears o be a far ore malleable right. TRIAL In terms of sect 38() ofthe Constitution an accused Is ene to afr tra ‘Acourt must ensure that the accused Is at allies avare of his rights tn the case oan undefended accused, these rights must be explained bythe presiding oisr to fhe accused -Radebe 198 (1) $A 191 (T)and Mabaso 1990 (SA 185 (A), Ithis Io not ‘done, i an inappropriate Instances constitute a ground freeview. in Sibi 2004 (2) SACR 314 cw) che court held that there i a ty upon juctal officer to inform “unrepresented accused of legal rights, Legal rights Include the right tothe docket on State witnesses’ statements. St also Melani v§ 2008 2) ALL SA 280 (0. This a general principe of ou criminal procedure that the acoused may not be ques tfoned about te merits ofthe case, unless he decides to testy This principle mast be adhered

You might also like

• Template - Application For Discharge

  

  No ratings yet

  Template - Application For Discharge

  24 pages
• General Section 112 (2) Plea

  

  No ratings yet

  General Section 112 (2) Plea

  2 pages
• Board Notes - Criminal Practice

  

  No ratings yet

  Board Notes - Criminal Practice

  43 pages
• South Africa High Court Summons: PIC vs AYO

  

  100% (3)

  South Africa High Court Summons: PIC vs AYO

  32 pages
• Application For Summary Judgement

  

  No ratings yet

  Application For Summary Judgement

  5 pages
• 1 Complaint in The Matter of The Wrongful Conviction of Cody Marble - Claim For Compensation

  

  No ratings yet

  1 Complaint in The Matter of The Wrongful Conviction of Cody Marble - Claim For Compensation

  4 pages
• 1016 CriminalL UO S214

  

  No ratings yet

  1016 CriminalL UO S214

  76 pages
• LNT Bond Form

  

  No ratings yet

  LNT Bond Form

  8 pages
• Admissions and Confessions

  

  No ratings yet

  Admissions and Confessions

  11 pages
• Civil Trials Guidebook

  

  0% (1)

  Civil Trials Guidebook

  540 pages
• Namibia Supreme Court Free Speech Ruling

  

  No ratings yet

  Namibia Supreme Court Free Speech Ruling

  41 pages
• Synthesis Paper Starling 4

  

  No ratings yet

  Synthesis Paper Starling 4

  21 pages
• Previous Consistent Statements

  

  No ratings yet

  Previous Consistent Statements

  12 pages
• Law of Writs

  

  No ratings yet

  Law of Writs

  4 pages
• District Judge Question Paper

  

  No ratings yet

  District Judge Question Paper

  24 pages
• BAIL AFFIDAVIT - SCH 6.rsa Citizen - Not With Compl

  

  No ratings yet

  BAIL AFFIDAVIT - SCH 6.rsa Citizen - Not With Compl

  5 pages
• Criminal Procedure Topic 1

  

  No ratings yet

  Criminal Procedure Topic 1

  7 pages
• Civil Procedure Code Explained

  

  100% (1)

  Civil Procedure Code Explained

  17 pages
• Rules of The High Court (With 2021 Ammendments)

  

  No ratings yet

  Rules of The High Court (With 2021 Ammendments)

  169 pages
• "ODPP June 2018 E-newsletter"

  

  100% (1)

  "ODPP June 2018 E-newsletter"

  20 pages
• Application of Judge Charlene Jackson Etnire - Maricopa County Arizona

  

  No ratings yet

  Application of Judge Charlene Jackson Etnire - Maricopa County Arizona

  33 pages
• Judicial Review of Administrative Action On Malic1

  

  No ratings yet

  Judicial Review of Administrative Action On Malic1

  13 pages
• Law of Evidence

  

  No ratings yet

  Law of Evidence

  14 pages
• Appeal Condonation

  

  No ratings yet

  Appeal Condonation

  9 pages
• Justice System Corruption Exposed

  

  No ratings yet

  Justice System Corruption Exposed

  193 pages
• Comparative Criminal Procedure:: History, Processes and Case Studies

  

  No ratings yet

  Comparative Criminal Procedure:: History, Processes and Case Studies

  2 pages
• Examination in Chief Example

  

  No ratings yet

  Examination in Chief Example

  4 pages
• Imp Case Law Judical Academy Madras

  

  No ratings yet

  Imp Case Law Judical Academy Madras

  19 pages
• FOI Guidelines FOI Act Exemptions

  

  No ratings yet

  FOI Guidelines FOI Act Exemptions

  115 pages
• Bail Procedures in Zimbabwe

  

  No ratings yet

  Bail Procedures in Zimbabwe

  23 pages
• Substance and Procedure

  

  100% (1)

  Substance and Procedure

  3 pages
• Criminal Justice System

  

  No ratings yet

  Criminal Justice System

  42 pages
• Response To Pala's Purported Attorney, Who Threatened Agua Caliente (Pala) People

  

  No ratings yet

  Response To Pala's Purported Attorney, Who Threatened Agua Caliente (Pala) People

  10 pages
• Willie Cory Godbolt Indictment

  

  No ratings yet

  Willie Cory Godbolt Indictment

  7 pages
• Respondent's Opposition To State Application For Reservation of Questions

  

  No ratings yet

  Respondent's Opposition To State Application For Reservation of Questions

  28 pages
• Defendant's Guilty Plea Statement

  

  No ratings yet

  Defendant's Guilty Plea Statement

  13 pages
• Cpla - 6

  

  No ratings yet

  Cpla - 6

  27 pages
• 2023 Bundle 1

  

  No ratings yet

  2023 Bundle 1

  46 pages
• Rights of the Accused

  

  No ratings yet

  Rights of the Accused

  50 pages
• Project Report ON Examination, Examination-In-Chief, Cross Examination, Re-Examination

  

  No ratings yet

  Project Report ON Examination, Examination-In-Chief, Cross Examination, Re-Examination

  15 pages
• Criminal Law FD

  

  No ratings yet

  Criminal Law FD

  21 pages
• Bail Application Affidavit

  

  No ratings yet

  Bail Application Affidavit

  4 pages
• Opening Statement

  

  No ratings yet

  Opening Statement

  5 pages
• Repeal The Casino Deal Sept 5 Filing

  

  No ratings yet

  Repeal The Casino Deal Sept 5 Filing

  31 pages
• Passport Showcause Notice Clarification

  

  No ratings yet

  Passport Showcause Notice Clarification

  5 pages
• Murray v. Carrier, 477 U.S. 478 (1986)

  

  No ratings yet

  Murray v. Carrier, 477 U.S. 478 (1986)

  39 pages
• Vlok Symington SARS Affidavit

  

  100% (1)

  Vlok Symington SARS Affidavit

  118 pages
• Evidence Barkai Fall 2012

  

  100% (1)

  Evidence Barkai Fall 2012

  52 pages
• Tort Assignment

  

  No ratings yet

  Tort Assignment

  8 pages
• Writ of Habeas Corpus (Shodhganga)

  

  No ratings yet

  Writ of Habeas Corpus (Shodhganga)

  63 pages
• Topic 5 - Hearsay Evidence

  

  No ratings yet

  Topic 5 - Hearsay Evidence

  17 pages
• Intro Criminal Law

  

  No ratings yet

  Intro Criminal Law

  228 pages
• Legal Evidence Guide for Lawyers

  

  No ratings yet

  Legal Evidence Guide for Lawyers

  71 pages
• Documentary Evidence and Judicial Notice

  

  No ratings yet

  Documentary Evidence and Judicial Notice

  153 pages
• Assignments Tutorial Letter-Tli4801

  

  No ratings yet

  Assignments Tutorial Letter-Tli4801

  6 pages
• Plea Bargaining-A New Development in The Criminal Justice System

  

  No ratings yet

  Plea Bargaining-A New Development in The Criminal Justice System

  7 pages
• Legal Evidence Guide for Lawyers

  

  No ratings yet

  Legal Evidence Guide for Lawyers

  175 pages
• Criminal Notes

  

  No ratings yet

  Criminal Notes

  1 page
• Criminal Procedure Act 51 of 1977

  

  No ratings yet

  Criminal Procedure Act 51 of 1977

  145 pages
• Reporting A Crime

  

  No ratings yet

  Reporting A Crime

  9 pages