Part 3- Charge Sheets And Indictments

Question 0

What is the equivalent document as a charge sheet in the lower courts, used in the higher court?

Answer 0

An indictment, contains the offence(s) in respect of which the accused is prosecuted.

Question 1

What is a charge sheet?

Answer 1

It is the document in the lower courts, containing the offence(s) in respect of which the accused is prosecuted.

Question 2

What happens when the person drawing up the charge sheet has made an error and has left out certain required information?

Answer 2

Since human fallacy may be responsible for the drawing up of a charge sheet that lacks certain information, our law provides that mere technicalities are insufficient to result in the acquittal of the accused. This wouldn’t serve the interests of justice.

Question 3

What must be taken into consideration when a incorrectly drawn up charge sheet needs to be altered or changed?

Answer 3

Reasonable accommodation must be made for charge sheets to be subject to a degree of amendment, alteration and change, however, the extent thereof must be balanced against the accused’s right to a fair trial.

Question 4

What are the basic principles that are applicable to the content and service of a charge sheet?

Answer 4

1) Must inform accused as to nature of offence in clear and unmistakable language (S v Pillay)
2) He has the right to be informed of the nature of the charge with sufficient detail in order to answer thereto. (S v Peterson)
3) In HC, brief summary of ‘salient facts’ need not be in such detail as to compromise interests of justice. Also, State not bound by summary and can lead evidence in contradiction thereof. Also a list of names and addresses (sometimes only names) of state witnesses must accompany indictment.
4) Service of indictment + notice of trial must take place not less than 10 court days before the date upon the trial appearance date, unless accused agrees to shorter period.
5) Information in police docket is also information to which accused entitled to have access, provided that such documents form basis of case against accused. (Shabalala v AG).
6) In LC charge sheet presented to accused upon conclusion of investigation; and
7) If summonsed to appear pursuant to service upon him of a summons, the accused is entitled to at least fourteen (14) days’ notice before the trial (excluding Saturdays, Sundays, holidays and date of service) in terms of s 54(3)).

Question 5

What did the court rule in S v Hugo, that was similar to that of the later ruling in S v Peterson?

Answer 5

From the charge sheet accused must be able to ascertain exactly what the charge is that is brought against him, with sufficient detail to place him in position to to answer it.

Question 6

What are the summary of ‘salient facts’ that must be included in an indictment in the HC?

Answer 6

In the High court, the indictment (which is lodged with the registrar by the DPP) contains a list of the charge(s) against the accused together with a brief summary of ‘salient facts’ of the case so as to inform the accused of the case he is required to answer to, however,

• Such summary need not be in such detail as to compromise the interests of justice.
• Significantly, neither is the state bound by such summary nor precluded from leading evidence in contradiction thereof (S v Kgoloko 1991 2 SACR 203 (A)).

Question 7

What must an indictment be accompanied by?

Answer 7

In addition, accompanying such indictment will be a list of the names and address of the witnesses the state intends calling.

Where the interests of justice demand, sometimes merely the names of the witnesses are furnished (See s 144(3) of the CPA);

Question 8

When must service of a indictment take place?

Answer 8

Service of the indictment together with a notice of trial must take place at least ten (10) court days before the date appointed for the trail, unless the accused agrees to a shorter period.

Question 9

How does service of an indictment take place?

Answer 9

Service takes place in terms of the rules of court or by the magistrate handing the documents to the accused when committing him to the High court for trial (s 144(4) of the Cpa).

Question 10

What information in the police docket is important to the accused?

Answer 10

The information contained in the police docket such as witness statements and forensic reports is also information to which the accused is entitled to have access, provided such documents form the basis of the case against the accused (Shabalala v AG 1995 2 SACR 761 (CC)).

Question 11

What is an exception to the general rule of an accused’s access to information in the police docket?

Answer 11

An exception to this general rule is that access is usually denied in bail proceedings and can be denied where disclosure may prejudice the investigation or the prosecution in terms of s 39 of the Promotion of Access to Information Act 2 of 2000 (PAIA) – information held by a public body.

Question 12

Is an accused served with a charge sheet?

Answer 12

Unlike an indictment, a charge sheet isn’t served on the accused, but is presented in court. The accused may examine this at any stage of the relevant criminal proceedings (s80 CPA).

The accused in such a case is brought to court on written notice, by summons, or under arrest.

Question 13

How do proceedings commence in the lower court?

Answer 13

Unless an accused has been summoned to appear in court, the proceedings at a summary trial in a lower court are commenced by lodging a charge sheet with the clerk of the court (s76(1) CPA).

Question 14

How much notice must an accused be given before the trial in a lower court?

Answer 14

Where an accused is brought to court on written notice or under arrest, he may be required to appear upon very short notice, but where a summons is served upon an accused, this must take place at least 14 days (Sundays and holidays excluded) before the day of trial (s53(3) CPA).

If accused finds that this period is insufficient for purposes of prating his defence he may apply for a postponement. The court will grant such a postponement in appropriate cases (eg Thane case).

Question 15

What necessary averments (facts) must be included in the charge sheet?

Answer 15

The charge sheet need only set out the facta probanda and not facta probantia pertaining to the offence(s) the accused is alleged to have committed.

The charge must set out the essential averments in clear and concise simple terms (S v Rautenbach).

Question 16

In terms of the CPA, how must the offence be set out in the charge sheet?

Answer 16

Section 84(1) of the CPA requires that the charge sheet must set out the offence in a manner that:

1) The accused is able to understand the charge against him;
2) Contains all essential elements of the offence;
3) Sufficient particularity is given as to the date, place where the offence occurred or the person(s) or property that was the victim of the offence; and
4) Specifies the animus on the part of the accused.

Question 17

Must the charge sheet include the time the offence took place?

Answer 17

• S 91(1)(c) provides that where time is not of the essence then the charge will not necessarily be deficient.
• Section s 92(2) provides that where time of the offence is in fact mentioned but evidence proves otherwise, it will be sufficient if the time and date falls within a period of three (3) months of the commission of the offence, provided, however, that time is not of the essence.

Question 18

If the accused raises a defence in the form of an alibi of being elsewhere that the time of the commission of the offence, does the s92(2) 3 month time provision in the CPA apply?

Answer 18

Where an accused raises an alibi as a defence (being elsewhere at the time of the commission of the offence) and the court is of the view that the accused will be prejudiced by the s92(2) three month time provision, then the accused will be in the same position as if he has not pleaded.

Question 19

What happens where the evidence proves that the offence didn’t take place in the place specified in the charge sheet?

Answer 19

Where the charge sheet has alleged a particular place where the offence is alleged to have taken place and evidence proves that the offence did not take place there, the charge sheet is rendered defective.

Question 20

When may an accused examine the charge against him?

Answer 20

Section 80 of the CPA:

Accused may examine charge—An accused may examine the charge at any stage of the relevant criminal proceedings.

Question 21

What section of the CPA sets out the essentials of a charge?

Answer 21

Section 84 of the CPA- Essentials of charge.

84. Essentials of charge.—(1) Subject to the provisions of this Act and of any other law relating to any particular offence, a charge shall set forth the relevant offence in such manner and with such particulars as to the time and place at which the offence is alleged to have been committed and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.
    (2) Where any of the particulars referred to in subsection (1) are unknown to the prosecutor it
    shall be sufficient to state that fact in the charge.
    (3) In criminal proceedings the description of any statutory offence in the words of the law
    creating the offence, or in similar words, shall be sufficient.

Question 22

When may an accused object to a charge?

Answer 22

Section 85 of the CPA sets out when an accused may object to a charge.

85. Objection to charge.—(1) An accused may, before pleading to the charge under section
    106, object to the charge on the ground—
    (a) that the charge does not comply with the provisions of this Act relating to the
    essentials of a charge;
    (b) that the charge does not set out an essential element of the relevant offence;
    (c) that the charge does not disclose an offence;
    (d) that the charge does not contain sufficient particulars of any matter alleged in the
    charge: Provided that such an objection may not be raised to a charge when he is required in terms of section 119 or 122A to plead thereto in the magistrate’s court; or
    (e) that the accused is not correctly named or described in the charge:
    Provided that the accused shall give reasonable notice to the prosecution of his intention to object to the charge and shall state the ground upon which he bases his objection: Provided further that the requirement of such notice may be waived by the attorney-general or the prosecutor, as the case may be, and the court may, on good cause shown, dispense with such notice or adjourn the trial to enable such notice to be given.
    (2) (a) If the court decides that an objection under subsection (1) is well-founded, the court shall make such order relating to the amendment of the charge or the delivery of particulars as it may
    deem fit.
    (b) Where the prosecution fails to comply with an order under paragraph (a), the court may quash the charge.

Question 23

When may an accused apply for particulars relating to the charge sheet?

Answer 23

A charge sheet that prima facie complies with s 84(1) does not preclude the accused from applying for particulars relating thereto in terms of s 87.

Question 24

What applies to the the particularity of a charge sheet?

Answer 24

The following applies to particularity of a charge sheet:

1) Particularity is aimed at defining and not ‘enlarging’ the issues;
2) The state is not permitted to answer a request for further particulars with a retort that the information ‘are matters peculiarly within the knowledge of the accused’ (S v National High Command 1964 1 SA 1 (T));
3) Neither can the state merely refer the accused to the record where the record is voluminous;
4) Particulars are delivered free of charge;
5) Evidence adduced must accord with the particulars, even if application is made prior to judgment for the charge sheet to be amended accordingly; and
6) Where the state refuses to furnish particulars, an application can be brought to compel the state to furnish it.

Question 25

What CPA provisions are relevant to an accused’s right to applying for particularity of a charge sheet?

Answer 25

Section 87 of the CPA:

87. Court may order delivery of particulars.—(1) An accused may at any stage before any evidence in respect of any particular charge has been led, in writing request the prosecution to furnish particulars or further particulars of any matter alleged in that charge, and the court before which a charge is pending may at any time before any evidence in respect of that charge has been led, direct that particulars or further particulars be delivered to the accused of any matter alleged in the charge, and may, if necessary, adjourn the proceedings in order that such particulars may be delivered: Provided that the provisions of this subsection shall not apply at the stage when an accused is required in terms of section 119 or 122A to plead to a charge in the magistrate’s court.
    (2) The particulars shall be delivered to the accused without charge and shall be entered in the
    record, and the trial shall proceed as if the charge had been amended in conformity with such particulars.
    (3) In determining whether a particular is required or whether a defect in the indictment before
    a superior court is material to the substantial justice of the case, the court may have regard to the
    summary of the substantial facts under paragraph (a) of section 144 (3) or, as the case may be, the record of the preparatory examination.

Question 26

What section of the Constitution is relevant with regards to an accused’s right to apply for particularity of a charge sheet?

Answer 26

Section 32 of the Constitution:

32. Access to information (Constitution)
33. ​Everyone has the right of access to:
    a. ​any information held by the state; and
    b. ​any information that is held by another person and that is required for the exercise or protection of any rights.
34. ​National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Question 27

Prior to 1959, what were courts insistent on with regards to the charge sheet?

Answer 27

Prior to 1959, our courts were insistent upon charges disclosing an offence before the state was permitted to amend it, alternatively reveal facts, which if proved, would render the accused guilty. This resulted in numerous acquittals or convictions being set aside on the basis of technicalities. Section 88 of the CPA was introduced to address this state of affairs.

Question 28

How did s88 of the CPA alleviate the problem of defects in a charge sheet?

Answer 28

Section 88 of the CPA states:

‘Where a charge is defective for the want of an averment which is an essential ingredient of the relevant offence, the defect shall, unless brought to the notice of the court before judgment, be cured by evidence at the trial proving the matter which should have been averred’

Consequently, an accused can be convicted even where the charge fails to disclose an offence. Joubert states that this ‘greatly alleviates the burden of prosecutors’.

Question 29

How does s88 of the CPA affect the accused?

Answer 29

Section 88 may assist the state, but the extent to which same is prejudicial and compromises an accused’s rights, especially that of an unrepresented accused, to a fair trial is open to debate.

Question 30

According to Joubert, what considerations is s88 of the CPA subject to? - 5 points

Answer 30

Joubert points out that s88 is subject to the following considerations:

1) At the very least, the offence with which the accused is charged should appear from the charge;
2) Where charged with a statutory offence, the number of the section of the act which is alleged to have been contravened should be stated. Thus where two sections of an Act are prohibitory, and an accused is charged only with one, the state cannot then seek to rely for assistance on s 88;
3) Where the charge fails to disclose an offence, an accused may, before pleading, raise an objection (exception) that he is unable to plead to the charge given the vagueness or absence of a described offence. An accused cannot simply remain silent and once convicted raise such technicality on appeal where it was available to be raised before the trial (S v Hershel 1920 AD 575). If the trial court refuses the application of the accused, the accused can then raise the refusal as a suitable ground for appeal against his conviction;
4) A defect can only be cured by evidence. The replies of an accused, who pleads guilty, may be taken into account in curing any defects; and
5) The evidence may not be of such a nature as to substitute one offence for another.

Question 31

When can errors in a charge sheet be amended?

Answer 31

Section 86(1) provides that a charge sheet can be amended (or corrected) where:

1) ​It is defective for want of an essential averment;
2) There is a variation between the allegations in the charge and the evidence led at trial; and
3) Words have been omitted, unnecessarily inserted, or any other error has been made.

Question 32

What must be borne in mind with regard to an amendment or correction of a charge sheet?

Answer 32

The following must be borne in mind concerning the amendment or correction of a charge sheet:

1) An amendment can be ordered, but only where to do so will not prejudice the accused. This is especially true in a trial involving a complexity of charges which would also result in a radical departure from the charge sheet (S v Heller 1971 2 SA 29 (A));
2) An application to amend on appeal will only be permitted where it would not have impacted upon the defence of the accused at trial; and
3) An amendment must act as an alteration and not a substitution of offences. The test is whether the proposed amendment will be of such a nature that if permitted the original charge will be replaced with a different charge.

Question 33

What does the rule against duplication of charges entail?

Answer 33

A single set of facts and circumstances in which a person may criminally conduct himself may give rise to numerous charges.

An example is where an accused steals a car with the purpose of using same in the commission of an armed robbery during which robbery various victims are killed as a result of the discharge by the accused of his unlicensed firearm.

Common sense dictates that the accused should be charged with and convicted with all then offences that arise from the aforesaid facts, namely theft, armed robbery, murder and possession of an unlicensed firearm (S v Moloto 1982 1 SA 844 (A)).

Question 34

What is the rule against the duplication of convictions?

Answer 34

The rule against duplication of charges must not be confused with the rule against duplication of convictions. The rule against duplication of convictions can be summarised as follows:

1) Where a single act constitutes a common law offence or contravenes a statute, the accused may only be charged with one or either of the offences. Practically, the charge may also be drawn up in the alternative ensuring thereby that if the state fails to prove all the essential elements for the statutory offence, it may secure a conviction in respect of the common law offence; and
2) An accused cannot be charged for more than one common law offence in respect of a single act. An example is where the accused rapes a victim, he cannot also be charged and convicted for indecent assault.

Question 35

What does Section 83 of the CPA state?

Answer 35

Section 83. Charge where it is doubtful what offence committed—

If by reason of any uncertainty as
to the facts which can be proved or if for any other reason it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with the commission of all or any of such offences, and any number of such charges may be tried at once, or the accused may be charged in the alternative with the commission of any number of such offences.

Question 36

What does s336 of the CPA state?

Answer 36

Section 336. Act or omission constituting offence under two or more laws.—

Where an act or omission constitutes an offence under two or more statutory provisions or is an offence against a statutory provision and the common law, the person guilty of such act or omission shall, unless the contrary intention appears, be liable to be prosecuted and punished under either statutory provision or, as the case may be, under the statutory provision or the common law, but shall not be liable to more than one punishment for the act or omission constituting the offence.

Question 37

What does a joinder of offences entail?

Answer 37

When a charge sheet is drafted it usually reflects the most serious offence as the main offence and the remaining offences are listed as alternative offences. Any number of offences may be charged against the accused (s 81(1)).

Question 38

When must the joinder of charges take place?

Answer 38

The joinder of charges must take place before any evidence is led and hence before the accused had pleaded, failing which the proceedings are void (S v Thipe 1988 3 SA 346 (T)).

In the interests of justice it is better that all charges against an accused are brought simultaneously as opposed to a sporadic basis.

Question 39

What section of the CPA is relevant with regards to joinder of charges?

Answer 39

Section 81of the CPA states as follows:

81. Joinder of charges.—(1) Any number of charges may be joined in the same proceedings
    against an accused at any time before any evidence has been led in respect of any particular charge, and where several charges are so joined, each charge shall be numbered consecutively.
    (2) (a) The court may, if in its opinion it will be in the interests of justice to do so, direct that an accused be tried separately in respect of any charge joined with any other charge.
    (b) An order under paragraph (a) may be made before or during a trial, and the effect thereof shall be that the charge in respect of which an accused is not then tried, shall be proceeded with in all respects as if the accused had in respect thereof been charged separately.

Question 40

What does s82 of the CPA state?

Answer 40

Section 82. Several charges to be disposed of by same court.—

Where an accused is in the same proceedings charged with more than one offence, and any one charge is for any reason to be disposed of by a regional court or a superior court, all the charges shall be disposed of by the same court in the same proceedings.

Question 41

What happens where more than one accused have been involved in the commission of the same offence?

Answer 41

Where more than one accused have been involved in the commission of the same offence our law provides that they may all be charged together in respect of the offence in question. To hold separate trials for each and every accused would not be in the interests of justice.

Where the evidence to be used at one trial would be admissible against another accused at another trial, this would warrant a joinder.

Even persons who commit different offences can be joined and tried together where the different offences constitute part of the same transaction. The state is under no obligation to join accused persons.

Question 42

What provisions of the CPA are relevant to the joinder of several accused?

Answer 42

Section 155- Persons implicated in the same offence may be tried together.

Section 156- Persons committing separate offences at same time and place may be tried together.

Section 157- Joinder of accused and separation of trials.