SUBJECT 2:PART 2 Flashcards
The prosecution of a crime
What is private prosecution?
:A private prosecution in terms of section 7 of the Criminal
Procedure Act may not be instituted against a child in respect of whom the matter has been
diverted in terms of this Act.
The prosecution of a crime
What are the constitutional provisions for a prosecution?
Sec179 Constitution: there is a single national prosecuting authority structured in terms of an
Act of parliament NPA ACT
Prosecution of a crime
What powers does the NPA have?
sec179(2): The prosecuting authority has the power to institute criminal proceedings on
behalf of the state, and to carry out any necessary functions incidental to instituting criminal
proceedings
- sec20(1) National Prosecuting Authority Act (sec20(1) makes provision that
prosecuting authority may stop proceedings)
The NPA
What is the structure of the NPA?
A) the national director of public prosecutions > NDPP
- b) the deputy national directors of public prosecutions > DNDPPs
- C) the directors of public prosecutions > DPP (the former attorney general’s)
- D) the deputy directors of public prosecutions (DDPPs)
- E) prosecutors
The NPA
What is the dominus litis?
Dominus litis: master of proceedings (master of the case)
- It is said the prosecution is master until the accused has pleaded, thereafter the court will be
master of proceedings for the duration of trial
The NPA
What is the discretion to prosecute?
-The decision whether to prosecute someone for commission of specific offence >“a prosecutor has duty to
prosecute if prima facie case and if no compelling reason for refusal to prosecute”
The NPA
What are the public interest factors on whether to prosecute?
1) the nature and seriousness of offence
2) the interest of victim and broader community
3) the circumstances of offender
The NPA
what is the difference between withdrawing a charge and stopping the prosecution?
Magayela Case
-there is a distinction drawn between situation where state closes case without
calling a crucial witness and stopping of prosecution
-Sec6 CPA: only withdraw a charge before accused has pleaded
>State or anyone conducting a prosecution may:
- a) before an accused pleads to a charge, withdraw that charge, in which event the accused
shall not be entitled to a verdict of acquittal
- b) at any time after accused has pleaded, but before conviction, stop the prosecution in
respect of that charge, in which event the court trying the accused shall acquit the accused in
respect of that charge
The NPA
What is prescription on the right to prosecute?
sec18 CPA
- Basic principle: right to institute prosecution for any offence shall, for unless other period
expressly provided, lapse after a period of 20 years from time when offence committed
exceptions=sexual offences
Diversion of a criminal trial
What is diversion of a trial?
Different ways a criminal trial can be avoided can be partial, temporary or permanent
Unreasonable delays
What is the principle against unreasonable delays?
Sec 35(3)(d) of Const-accused person has a right to a fair trial which includes to have their
trial begin and conclude without unreasonable delay
S342A of CPA gives effect to Constitution-No unreasoanble delay from first appearance and not just trial
Unreasonable delay
What factors did the sanderson case establish that determine unreasonable delay?
1.Duration of delay
2.reasons for delay
3.Whether any person can be blamed for the delay
4.Effect of delay on personal circumstances of accused and witnesses
5.Seriousness of the charge/case (Bothma)
6.Actual prejudice caused by the state
7.Effect on administration of justice
Unreasonable delay
What did the Bothma v Els case state regarding unreasonable delay?
Rape charge brought 39 years later
the delay in the present matter must be evaluated not as the foundation of a right to be tried without unreasonable delay, but as an element in determining whether, in all the circumstances, the delay would inevitably taint the overall substantive fairness of the trial if it were to commence’
-The Constitutional court stated ‘that the court of a quo had paid insufficient weight in
considering the seriousness of the offence
S35(3)(d) of Const+ S342A of CPA read together with these cases
Prosecutions
What did the Shabalala case establish?
-Access to the docket is not an absolute right
- the right to a fair trial would include access to police docket so the accused can exercise this right
but the prosecution may be able to justify the denial of such
access on the grounds it is not justified for the purpose of a fair trial
Prosecution
What did the King case state regarding access to the docket?
Court found: King’s allege of sec35 (right to fair trial) and sec32 (access to information) did not
fall within the Shabalala principle
- Court found: King does not require a motivated index of part B and C of the docket to enable him
to conduct his defence
