Introduction & Gen. Principles

Question 1

What is the purpose of Crim. Procedure?

Answer 1

1) provide a procedural mechanism by which goals of crim law can be realized
2) resolve disputes in terms of allocation of scarce resources and distribution of state power
3) giving effect to The Rule of Law by stopping citizens from taking law into own hands and allowing legitimization of state control over lives of citizens.

Question 2

What inherent tensions exist in the operation of Crim. Proc?

Answer 2

Inherent tensions exist between the rights of the victim (State) and the rights of the accused.
Tensions also exist between what the state authorities can legitimately do to individuals, accused persons or convicted persons.

Question 3

How do we strike a balance between diff competing interests at play?

Answer 3

By what we call “Due process”

Question 4

How is due process given effect?

Answer 4

s1(c) Constitution enshrines the supremacy of the Const. and the rule of law.
s2 Const. Provides that the Const. Is the supreme law of RSA and any law or conduct inconsistent with it is invalid and obligations imposed by the Const. Must be fulfilled. (Rule of Law is such an obligation which must be fulfilled)

Question 5

What was Lord Bingham’s thoughts on parliamentary sovereignty compared to constitutionalism?

Answer 5

He said, “so anyone who sees parliament as a reliable guardian of human rights in practice is, I suggest, guilty of wishful thinking.”

Question 6

Who coined the phrase “rule of law”?

Answer 6

Albert Dicey- he advocated the supremacy of parliamentary sovereignty based on the rule of law.

Question 7

What were Dicey’s 3 core values that rule of law comprised of?

Answer 7

1) nobody is above the law (everyone equal before the law)
2) no person may suffer punishment unless they break the law, and the breach of the law and punishment there of will be determined by and imposed by the ordinary courts.
3) a Const. -written or unwritten- is pervaded by the rule of law. In other words a ‘judge-made Constitution’.

Question 8

In the Fedsure Life Assurance case, the court referred to the principle of legality as fundamental to our constitutional law. What notion is this principle based on?

Answer 8

The principle is based on the notion that the legislature and executive in ‘every sphere’ are constrained by the principle that they may not exercise more power than that which has been conferred upon them by law. To exercise more power in terms of the law would be ultra vires/ illegitimate.

Question 9

What does due process demand of our Criminal justice system to rely on for its effective functioning and operation?

Answer 9

It demand that our criminal justice system rely on the rule of law and principle of legality. This ensures limitations are imposed on the exercise of state power in detection, investigation and prosecution of crime.

Question 10

In what case did the court stress the importance of interpreting the Constitution in a manner that “promotes the values which underlie an open and democratic society…”?

Answer 10

S v Zuma and Others

Question 11

In S v Makwanyane, what did the court state about the interests of the community?

Answer 11

The court emphasized that it is the interests of the community that must served and not its wishes.

Question 12

In R v Omar, what did Wessels LJ state the purpose of the court is?

Answer 12

“To see that substantial justice is done, to see that an innocent person is not punished and that a guilty person doesn’t escape punishment.”

Question 13

What sections of the Constitution make it clear that the Constitution operates vertically and horizontally?

Answer 13

s8(1) and (2) of the Constitution state that the Bill of Rights operates vertically as we’ll as horizontally subject to limitations contained in s36 or elsewhere provided in s7(3)

Question 14

Sections 9-35 are of general and important application to criminal procedure. What specific sections that provide for importamt rights, must be kept in mind?

Answer 14

• Section 9- equality
• section 12- freedom and security of person
• section 14- privacy
• section 32- access to information
• section 34- access to courts
• section 35- pertaining to arrest, detention and accused persons
• section 39- interpretation of BOR in particular manner

Question 15

What does an accused’s right to be presumed innocent entail?

Answer 15

The presumption of innocence means that the duty rests on the prosecutor to prove the guilt of the accused.

Question 16

What does the presumption of innocence mean from an evidentiary POV?

Answer 16

The onus is on the prosecution to prove the guilt of the accused, and the onus must be discharged beyond a reasonable doubt.
I.e. the prosecutor must prove beyond a reasonable doubt that the accused is guilty of the charges laid against him.

Question 17

How does a plaintiff prove a case in civil litigation?

Answer 17

The onus is on the plaintiff to prove his case on a balance of probabilities.

Question 18

What will happen after the state proves it’s case and reasonable doubt still exists?

Answer 18

The state will fail in proving its case. The court doesn’t need to believe the accused, it is sufficient that the court entertains some doubt. However keep in mind the discharge of the onus is beyond reasonable doubt and not beyond all reasonable doubt.

Question 19

How must the prosecutor prove the guilt of the accused?

Answer 19

In discharging the onus, the prosecutor must present evidence in respect of each and every material element of the crime in respect of which the accused has been charge. (As contained in the charge sheet [Magistrates court] or the indictment [High court])

Question 20

What happens if evidence is lacking in respect of a single element of the crime which the accused is charged?

Answer 20

Evidence lacking in a single element is sufficient to warrant a discharge at the end of the state’s case.
However, proof beyond a reasonable doubt of the guilt of the accused in respect of each material element of the crime would result in a conviction.

Question 21

In S v Coetzee, what did Sachs J point out in respect of the presumption of innocence?

Answer 21

He pointed out that the presumption of innocence is not only a principle protecting the accused, but also one that protects society in general by ensuring that innocent persons are not wrongly convicted and punished, which massively outweighs the public’s interests in ensuring that a guilty person is convicted and sentenced.

Question 22

When commenting on the Salem witch trials, what did Increase Mather refer to?

Answer 22

He referred to Sir John Fortescue’s De Laudibus Legum Angliae, who advocated the principle that it was better for 20 guilty persons to escape the death penalty than for one person to be wrongly condemned and suffer capital punishment.

Question 23

What section enshrines the right to remain silent?

Answer 23

Section 35(1)(a) of the BOR

Question 24

Who may invoke the right to remain silent?

Answer 24

Arrested, detained or accused persons

Question 25

According to Joubert, what is the rationale for the right to remain silent?

Answer 25

He points out that every arrested, suspect or accused person is a legal subject and not simply an object of enquiry.

Question 26

What section shows that the right to remain silent and presumption of innocence are interrelated?

Answer 26

Section 35(3)(h) of the BOR

Question 27

Would an accused ever have to prove his innocence?

Answer 27

No, as pointed out in S v Zuma, the CC found that a reverse onus is unconstitutional since onus of proof in criminal proceedings should ALWAYS rest on the state.

Question 28

When would it be in the accused best interests to not exercise their right to remain silent?

Answer 28

When faced with a prima facie it would not serve in the accused’s best interests to remain silent. Whilst no adverse interest may be drawn, as a matter of logic and common sense, the accused’s silence would fail to disturb or rebut the state’s evidence against her.

Question 29

What is the difference between an inquisitorial and accusatorial criminal procedure system?

Answer 29

The difference lies in the functions of the officials, namely the presiding officer, prosecutor and the defence.

Question 30

What role does the presiding officer play in an inquisitorial system?

Answer 30

The judge or magistrate adopts a pro-active and investigative role in the proceedings, so much so that it is the judge who will take a statement from the suspect or accused. As such the judge is said to be dominis litis.

Question 31

What role does the presiding officer play in an accusatorial system?

Answer 31

A judge or magistrate adopts a less pro-active role where proving the guilt of the accused is left to the machinery of the state and the defence to the defence counsel. The judge is reluctant to become involved in a manner that will appear as if the judge were so-to-speak ‘entering the arena’ of the criminal trial. The prosecutor is dominis litis.

Question 32

What criticisms have be drawn with regards to the accusatorial system?

Answer 32

The system has been criticized for the delays and financial costs associated there with.

Question 33

Which of the two systems is the most appropriate in a constitutional dispensation?

Answer 33

The accusatorial system. In accordance with the principle of the necessity of the presiding officer being independent and unbiased, the system also accords with the provisions of s165(2)-(4) of the Constitution.

Question 34

Does our criminal justice system embrace a degree of the inquisitorial system?

Answer 34

Yes, if one takes judicial inquests and bail proceedings into account.

Question 35

What are the sources of Criminal procedure?

Answer 35

Most NB- Constitution.
Second- the CPA
Third- other legislation
Fourth- Common law

Question 36

What is the writ of habeus corpus or inter dictum de libero homine exhibendo?

Answer 36

This form of relief, steeped in Roman-Dutch and English history, is probably the strongest weapon in the arsenal of relief against wrongful arrest. This allows an incarcerated person to demand that his jailer appear before a judge or magistrate and “show cause” why he should be or remain incarcerated. Can be brought on an urgent basis at any time by the incarcerated person or on his behalf.

Question 37

What is a Mandamus?

Answer 37

It is an order imposing a duty upon the authorities. An example would be that the accused or sentenced person be provided with basic medical treatment or that a minor in custody not be held in cells with other adult suspects or convicted.

Question 38

What is the exclusionary rule of evidence?

Answer 38

Section 35(5) of the Constitution provides that “Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.” Ultimately the decision to admit or exclude evidence is one to be exercised by the presiding officer, regard being had to the facts and circumstances of each case.

Question 39

What does it mean that our criminal justice system is centralized in nature?

Answer 39

It means that we have a single national prosecuting authority est. pursuant to the provisions so s179 and item18 of schedule 6 of the Constitution. Since s179 is not self executing, the National Prosecuting Act gives effect to s179. Previously Attorney General until 1998, now Director of Public Prosecutions.

Question 40

Who has the authority to prosecute?

Answer 40

The prosecutor is dominis litis and therefore decides whether a suspect will be charge and prosecuted. The decision to prosecute is one that must be exercised in good faith and objectively meaning that the prosecutor must have sufficient evidence to constitute probable cause.

Question 41

Where there is insufficient evidence to constitute probable cause or wher the nature of the crime is too insignificant to pursue (de minimis non curat lex), what must a prosecutor issue?

Answer 41

In the event of a prosecutor deciding not to issue a prosecution of a matter, a nolle prosequi is issued. However this does not bar the prosecutor from re-instituting proceedings at some future point should more evidence come to light.

Question 42

After a prosecutor has decided to prosecute and has drawn up a charge sheet, until what point can charges be withdrawn?

Answer 42

Charges can be withdrawn at any stage until the accused has pleaded. Once withdrawn, the prosecution can at a later stage re-institute the proceedings on same, similar and or additional charges.

Question 43

What happens if the accused has already pleaded to the charges and the prosecution decides to drop the charges?

Answer 43

The prosecutor may at any stage prior to conviction stop the prosecution in respect of the charge to which the accused has pleaded in terms is s6(b) of the CPA, but can only do so on the authority of the DPP. The accused cant at a later stage be charged in respect of the same offence.

Question 44

What is the general prescription time of crimes?

Answer 44

Unless otherwise stated, all crimes prescribe after a period of 20 years.

Question 45

Which crimes aren’t subject to any prescription period?

Answer 45

Murder, 
Treason committed when SA in state of war,
Robbery with aggravating circumstances,
Kidnapping,
Child stealing,
Genocide,
Crimes against humanity,
War crimes,
Rape,
Compelled rape,
Trafficking in persons for sexual purposes.

Question 46

What is the duty imposed on a prosecutor when an accused is unrepresented?

Answer 46

A prosecutor is required to display the utmost degree of fairness to the accused. What is fair depends on the facts of each case. In instances where the accused is represented it is not a necessity for the prosecutor to call evidence detrimental to his own case or that will assist the accused’s case.

Question 47

Apart from securing a conviction, what other duties does a prosecutor have?

Answer 47

The prosecutor is an officer of the court and as such is required to assist the court in ascertaining the truth of the case before the court by placing “all relevant info before the court”. The prosecutor, however, is not required to assist defence counsel in est. the innocene of their client.