Chapter 17

Question 1

1- Explain the fair trial principle

Answer 1

S35(3)- Accused has the right to a fair trial. This includes the right to a prosecutor that acts and is perceived to act without fear, favor or prejudice. Trial fairness is not confined to the accused but extends to society precisely because society has a interest in the outcome of the case.

Question 2

2- Explain the principle of legality

Answer 2

Prosecution must prove legal guilt in properly conducted trial in accordance with principles of legality, that is in a trial where common law, statutory law and constitutional rules were followed

Question 3

3- Explain the principle of judicial impartiality

Answer 3

Our adversarial trial system, presiding officer is a passive umpire who should not decent into the arena where the dust of conflict could cloud his judicial vision.

Question 4

What are the seven fundamental principles that govern a criminal trial

Answer 4

1- The fair trial principal 
2- Principle of legality
3- Principle of judicial impartiality
4- Principle of equality of arms
5- Principle of judicial control
6- Principle of orality
7- Principle of finality

Question 5

4- Explain the principle of equality in arms

Answer 5

Accusatorial trial procedure based on the premise that truth finding is enhanced if the prosecution and defence are responsible for presenting their respective cases. This is only valid If the prosecution and defence have equal opportunities.

Question 6

5- Explain the principle of judicial control

Answer 6

Criminal court must without sacrificing its impartiality, control and manage proceedings within the bounds of the law of criminal procedure.

Question 7

6- Explain the principle of orality

Answer 7

Evidence on disputed question of fact should be given by the witnesses called before a court to give oral testimony of the matters within their knowledge.

Question 8

7- Explain the principle of finality

Answer 8

Neither state nor accused should be permitted to reopen their cases once closed unless such reopening is necessary to introduce rebutting evidence where a party was taken by surprise.

Question 9

Explain the case for the prosecution

Answer 9

• Opening Of the states case
• Calling of state witnesses and examination in chief by prosecutor
• Cross examination of state witnesses by the Defence
• Re-examination of state witnesses by the prosecutor
• Closing of the states case

Question 10

Explain the discharge of the accused at the end of the states case

Answer 10

S174- If at close of the case of the prosecution. Court is of opinion that no evidence that the accused committed the offence referred to in the charge or any offence which of which he may be convicted on the charge, it may return a finding of not guilty.

Masondo: in re S v Mthembu

Question 11

Define the test for discharge (schuping test)

Answer 11

At close of case when discharge is considered, first question is:
1- Is there enough evidence on which a reasonable man might convict, if not
2- Is there a reasonable possibility that the defence evidence might supplement the state.
If the answer is yes to either question then there is no discharge and accused should be placed on his defence.

Question 12

Explain the defence case

Answer 12

1- The passive defence right
2- Defence address
3- The active defence right
4- The active defence right and sequence of defence witnesses
5- Evidence in chief of defence witness
6- Cross examination of defence witnesses by the prosecution

Question 13

Discuss the basic nature and content of cross examination

Answer 13

Parties who called a witness have a fundamental right to cross examine the witness. The purpose is to elicit facts which are favorable to the cross examiners case. Leading questions are permitted. Cross examiner has right to cross examine on matters which he disputes.