SUBJECT 2 Flashcards
Higher Courts
What is the ConCourt+ its jurisdiction?
-Final jurisdiction for all matters+can decide on all constittional matters+ any factual/legal matter if the court grants leave to appeal
-Decide on constitutionality of an act of parli or presid. conduct (s170)
-CJ,DCJ+9 Judges
Higher Courts
What is the SCA+ its jurisdiction?
-Located in Bloemfontein
-Pres of SCA, Deputy Pres +judges determined by Chief justice
-5 judges sit on criminal amtters
-Decide on any matter on appeal or a matter refrred by an act of parliament
-Not a court of first instance
How does leave to appeal work?
- Permission of court that det. the verdict+sanction
2.ask permission from magistrate that presides over the matter+another presiding officer intervenes to get leave to appeal
3.Can always appeal a conviction+ sentence but the presiding officer determines if it will be an appeal on the conviction/sentence/bothe
4.Have 14 days to file an appeal
5.leave to appeal is on a balance of probabilities
What is the HC+ its jurisdiction?
HC consists of different divisions and local seats
=Judge president+deputy judge president
=single judge in a HC trial
=3 judges make a full bench
=Appeals are concluded by 2 judges
What is the MC+ its jurisdiction?
Divided into RC+DC
-Don’t have juris to enquire into constitutionality of an act of parliamen/presidential conduct ito sec 170 of const
-Don’t have appeal jurisdiction except ito S29A of MCA which allows for MC to hear appeals from matters arising fromchiefs or headsmen
-Also periodical courts whuch are MC that sit at reg. intervals at places other than fixed seats of DCs
What does Ex Parte v Bolen regarding the burden of proof?
The state bears the onus of proof in crim. procedure .
-Reduced onus for defenxe+ will be on a balance of probabilities this is true for Bail>onus is on defence to show it is in the interest of justice that bail is granted.
What is the difference between a summary trial + a prepatory exam?
1.Summary Trial= Accused is charged in MC + decision is made on whether accused is guilty/not guilty
2.Prepartory Exam=hearing where evidenec is lead+magistrate does not determine the innocence or guilt of the accused +only hears evidence which is sent to the DPP who decides whether to insitute prosecution
Jurisdiction
What are the various crime jurisdictions of the various courts?
HC-Jurisdiction for all offences
RC- Jurisdiction for all offences except treason
DC- Jurisdiction for all offences except treason,murder, rape, compelled rape
Jurisdiction
What is the 4km according to sec90 of the MCA?
If there is a crime committed beyond the boundary of a district court then the boundary is extended for 4km
>crime committed on vehicle/vessel of courts boundary then the court has jurisdiction over the crime
>crime that began/completed within 4km of courts boundary then the court has jurisdiction
What offences do SA courts have jurisdiction over for crime committed outside SA?
1.High Treason
2.Genocide,crimes against humanity
3.Trafficking of persons
4.Charge of tehft committed in a foreign state where the accused continue sto appropriate the stolen object
5a.Offences commutted in SA territorial waters
b.Offences committed on SA ships
6.Aircrafts
a. Offender is still on board when plane lands in SA
b.Place of business of lessee of aircraft is SA
c, Offender is present in SA
7.Offences committed in antartica
Jurisidction
What is HC jurisdiction regarding sentencing?
- Imprisonment
- life imprisonment
- periodical imprisonment
- declaration as a habitual crimina;
- commital to a treatment centre
- fine
- correctional supervision
- imprisonment that includes correctional supervision
Jurisdiction
What is RC jurisdiction regarding sentencing?
- Imprisonment- max 15 years
- periodical imprisonment
- declaration as a habitual crimina;
- commital to a treatment centre
- fine not exceeding R600 000
- correctional supervision
- imprisonment that includes correctional supervision
Jurisdiction
What is DC sentencing jurisdiction?
- Imprisonment- max 3 years
- periodical imprisonment
- declaration as a habitual crimina;
- commital to a treatment centre
- fine not exceeding R120 000
- correctional supervision
- imprisonment that includes correctional supervision
Judicial Conduct
When must a judge recuse themselves?
> if there is a real or perceived conflict of interest
reasonable suspicion of bias based on objective facts
=A judge can’t recuse themselves on insubstantial grounds
Judicial conduct
What are the requirements for judicial bias?
1.Suspicion that a judicial officer might be biased
2.The suspicion must be that of a reasonable person in the judge’s position
3.Suspicion must be based on reasonable grounds
4.Suspicion must be one that a reasonable person would have held
Judicial Conduct
What must judicial decisions be based on?
Only based on evidence heard in court in the accused’s presence
-Evidence must be given upon oath
NPA
What is the hierarchy of the NPA?
1.NDPP-APPointed by president+have a 10 year tenure
2.DNDPP
3.DPP
4.DDPP
5.Prosecutors
S6 of NPA Act-ffice of prosecuting Authority is at seats of HC
NPA
What is the relationship between NDPP+ S21 of CPA policy directives?
NDPP issues policy directives ito s21 and these directives must be observed in prosecution process
NPA
What is NPA’s discretion to prosecute?
No principle for compulsory prosecution in SA + prosecutor must prosecute if there is a prima facie case before the prosecution
NPA
What are the public interest reasons to prosecute?
- The nature+seriousness of the offence
- Interests of the victim +broader community
- circumstances of the offender
NPA
What is the difference between a withdrawal of charges+ stopping of a prosecution?
1.Withdrawal of charges takes place anytime before the accused has pleaded ito
>s6(a)-accused is not entitled to a judgment+state can charge the accused again
2.Stopping of Prosecution
>s6(b)-permission of DPP to stop a prosecution is required + grant accused an acquital +accused cannot be charged again
NPA
When does the right to prosecute prescribe?
S18 of CPA-The right to prosecute prescribes after 20 years from the time the offence was committed except for crimes of (a) murder;
(b) treason committed when the Republic is in a state of war;
(c) robbery, if aggravating circumstances were present;
(d) kidnapping;
(e) child-stealing;
(f) rape or compelled rape
(g) the crime of genocide, crimes against humanity and war crimes
(h) trafficking in persons for sexual purposes
NPA
Which ethics must a prosecutor display?
- Fairness towards the accused
- Not the prosec. function to call evidence that is detrimental to the state where the accused has representation
- If discrepancy between state witness oral testimony+written statement-prosecutor must bring this to the attention of the court +make the staement available for examination
- make court awrae of circumstances that render accused statement inadmissable
- Not interefere with defence witnesses
Unreasonable delays
What are the factors that determine whether a delay is unreasonable ito sec 342A?
(a) The duration of the delay;
(b) the reasons advanced for the delay;
(c) whether any person can be blamed for the delay;
(d) the effect of the delay on the personal circumstances of the accused and
witnesses;
(e) the seriousness of the charge or charges
(f) actual or potential prejudice caused to the State or the defence by the delay,
