Chapter 3 - The prosecution of a crime Flashcards
What does Section 342 of the Criminal Procedure Act (CPA) state regarding the relationship between criminal convictions and civil actions for damages ?
- A conviction or acquittal in respect of any offence does not bar a civil action for damages.
- This means that a person who has suffered damages due to the commission of an offence can still pursue a civil action for compensation, regardless of the outcome of the criminal case.
What is the exception to Section 342 ?
- The exception to this rule is when the criminal court has ordered the convicted accused to pay compensation to the complainant as part of the sentence.
- In this case, the civil action for damages may not be pursued if the compensation has already been ordered by the criminal court.
What does the Constitution guarantee regarding the professional independence of the NDPP ?
- The Constitution guarantees the professional independence of the NDPP and every professional member of their staff.
- This is to ensure that their functions are free from interference by powerful individuals, the wealthy, or political influences.
What was the ruling in the Yengeni case regarding the NDPP’s informal meeting with the Minister ?
- It was ruled that it was ill-advised for the NDPP to participate in an informal discussion with the Minister of Justice and the accused.
- The independence of the office of the NDPP must remain uncompromised, and any suggestion that it could be influenced by political or personal interests undermines the integrity of the justice system.
Is it lawful for a prosecutor’s fees to be paid by someone other than the state according to the National Prosecuting Authority Act ?
Yes, Section 38(3) of the National Prosecuting Authority Act permits the fees of prosecutors to be paid by someone other than the state.
What was the ruling in Bonguli regarding the private funding of a prosecution ?
- The court ruled that while the prosecution was privately funded by the complainant, this did not make the prosecution unlawful.
- However, it was emphasized that for a trial to be fair, the prosecutor must act without fear, favor, or prejudice, and must also be seen to do so.
- This decision was made based on the unique facts of the case and is not broadly applicable.
What is the impact of private funding on the independence of the prosecutor in Tshotshoza ?
- The prosecutor’s independence was not affected despite the prosecution being funded by four major banks.
- The court held that the right to a fair trial was not violated and that the prosecutor acted independently, with no direct contact with the banks.
Who appoints the National Director of Public Prosecutions (NDPP) ?
President, as part of the national executive, appoints the NDPP.
How are the Deputy National Directors of Public Prosecutions (DNDPPs) appointed ?
The President, after consulting with the Minister of Justice and the NDPP, may also appoint the DNDPPs.
Who is responsible for determining the prosecution policy in South Africa ?
The NDPP, in accordance with section 179(5)(a) and (b) of the Constitution, must determine the prosecution policy with the concurrence of the Minister of Justice and after consulting with the DPPS (Director of Public Prosecutions Services).
What is the responsibility of the NDPP regarding policy directives ?
The NDPP must also issue policy directives, and these directives, along with the prosecution policy, must be followed during the prosecution process.
What can the NDPP do if the prosecution policy and directives are not followed ?
The NDPP may intervene where these policy directives are not observed.
What does it mean for the prosecution to be dominus litis ?
The prosecution is dominus litis, meaning it has the authority to initiate criminal proceedings, determine the charges, and decide the date and venue for the trial.
Does the court have any control over the prosecution’s decisions as dominus litis ?
Yes, while the prosecution is dominus litis, the courts retain a measure of residual control over the decisions made by the prosecution.
What is an important guideline when the prosecution exercises control over the criminal proceedings as dominus litis ?
An important guideline in exercising this control is fairness to the accused, ensuring that their rights are respected throughout the criminal process.
What does Section 6(a) of Act 51 of 1977 allow regarding the withdrawal of a charge ?
- Section 6(a) of Act 51 of 1977 allows the Prosecuting Authority to withdraw a charge before the accused has pleaded.
- The accused is not entitled to a verdict of acquittal, and barring prescription, they can be prosecuted again on the same or related charges.
Under what circumstances can a DPP stop a prosecution according to Section 6(b) of Act 51 of 1977 ?
- A DPP may stop the prosecution at any time after the accused has pleaded, but before a conviction is made.
- In such a case, the accused is entitled to an acquittal.
What is required for a prosecutor to stop a prosecution ?
A prosecutor may not stop a prosecution without the consent of the DPP or a person authorized by the DPP to make that decision.
What was the ruling in Botha v Els regarding the unreasonable delay ?
- It was ruled that the High Court had not properly considered the nature of the alleged offence and the trauma Mrs. Botha experienced, which contributed to the delay.
- The presumption of innocence would protect Mr. Els’ right to a fair trial, and the court could not determine the truth of Mrs. Botha’s story in advance.
What must the prosecution prove to establish the presence of criminal liability for a child ?
- The prosecution must prove beyond a reasonable doubt that at the time of committing the alleged offence, the child could appreciate the difference between right and wrong.
- Furthermore, the child must be capable of acting in accordance with that appreciation.
What was the ruling in Sanderson v Attorney-General, Eastern Cape ?
- The Constitutional Court held that the unreasonable delay in bringing the appellant to trial had infringed his right to a fair trial within a reasonable time.
- The court recognized that the delay had significant constitutional implications, and a permanent stay of prosecution could be granted in such cases where the right to a fair trial was jeopardized by excessive delay.
