SUBJECT 4

Question 1

How does the constitution regulate the attendence of the accused in court?

Answer 1

• s 34 of Constitution → everyone has right to have dispute be decided in fair
  public hearing before court
• s 35(3)(c) + (e) of Constitution
  s 35(3)(c) → right of accused person to public trial before ordinary court
  s 35(3)(e) → right of accused person to be present when tried

Question 2

What does s158 of the CPA state regarding the attendence of the accused in court?

Answer 2

all criminal proceedings in court must take place in presence of accused (unless contrary is expressly provided for in Act)

Question 3

Exceptions to the accused being present in court

What happens to the trial if the accused is absent on account of his misbehaviour?

Sec159(1) of CPA

Answer 3

→ if accused conducts themselves in manner which renders continuance of proceeding impracticable = court can order accused be removed & direct that trial proceed in their absence

= this is measure of last resort
= court will prefer to postpone matter or grant temporary adjournment to continue
case @ later stage in presence of accused

Question 4

Exceptions to the accused being present in court

What is the effect of the absence of the accused where there are 2/more accused?

s159(2) of the CPA

Answer 4

where 2/more accused appear jointly @ criminal proceedings, court can @ any stage in proceedings authorise absence of accused on following grounds –

a. Physical condition of accused renders unable to attend or is undesirable to
attend trial
b. Accused cannot attend trial due to family member being very ill or having died
Where accused becomes absent due to these 2 reasons → court can direct that
proceedings continue without presence of accused

Question 5

Exceptions to the accused being present in court

What is the effect of evidence by way of CCTV or electronic media on court proceedings?

s158(2) of CPA

Answer 5

→ court can order that evidence be given by means of CCTV or similar electronic media – but it can only be done where are facilities readily available or obtainable & if it appears to court that would –

• Prevent unreasonable delay
• Save costs
• Be convenient
• Be in interest of security of state/public safety or in interests of justice/public
• Prevent likelihood of that prejudice/harm might result to any person if they
  testify/are present @ proceedings

s 170A of CPA → testimony through intermediary allows prosecutor + accused to question witness & to observe reaction of witness

Question 6

Exceptions to the accused being resent in court

What are the requirements for postponement of certain criminal proceedings through Audiovisual link?

Answer 6

a. Accused must be at least 18 ie. postponement does not apply to child
offenders
b. Cannot be accused’s first appearance

Question 7

Exceptions to the accused being present in court

How does a payment of a fine without an appearence in court operate as an exception in terms of s57(1) of the CPA?

Answer 7

s 57(1) of CPA → public prosecutor/clerk who issues summons ito of s 54 to accused person to appear in court, if believe on reasonable grounds that MC will not impose fine exceeding amount of R10 000 = can endorse summon to effect that accused may admit their guilt in terms of offence & may pay fine stipulated
in summons in terms of offence (without appearing in court)

➔ s 57(1) applies where summons is against accused & can admit guilt where is
fine not exceeding R10 000

s57A (1) → after accused has appeared in court but before have pleaded, PP if have reasonable ground that MC will not impose fine exceeding R10 000 = give accused written notice containing endorsement in
terms of s 57 that accused can admit their guilt in terms of offence & may pay stipulated fine (without appearing in court again)

➔ s 57A(1) applies where written notice is served to accused & can admit guilt
where is fine not exceeding R10 000

Question 8

What is a compunding offence ito s341 notice?

Answer 8

Compounding of offence means that offender pays amount in order to not be
prosecuted for minor offences which they committed
s 341 of CPA → limits compounding of offences to –
1. Minor traffic offences
2. Contraventions of rules + regulations of local authorities (ie. municipalities)

Question 9

Securing accused’s attendence in court

How do summons secure an accused’s attendence in court ito s54 of CPA?

Summons

Answer 9

Summons used for summary trial in lower court where accused is not in custody or
about to be arrested
- Accused can still be arrested even after summons has been served
- No reason to believe accused will abscond (ie. escape) OR hamper police
investigation OR attempt to influence state witnesses

Question 10

Securing accused appearence in court

How are summons issued?

Summons

Answer 10

1. Prosecutor draw up charge + info related to accused (such as name, address,
   occupation) > given to clerk
2. Clerk issues document ie summons containing charge + info of accused &
   adds place, date + time for appearance of accused in court
3. Summons is then is served by way of sheriff/police on accused for offence in MC

Question 11

Securing the accused’s appearance in court

How are summons served?

Summons

Answer 11

Where accused cannot be found @ any of these addresses = delivery can be made
to person –
a. Apparently older than 16 +
b. Who apparently is resident/employed at address

= summons must be served @ least 14 days before court date (14 days does not
include Sundays + public holidays)

Sheriff/police official tasked with serving summons must provide return of service –
this serves as proof that summons was served to necessary person

Question 12

Securing the accused’s appearance in court

Do summons have to provide for an admission of guilt?

Summons

Answer 12

Summons does not have to provide for admission of guilt
When accused pays admission of guilt to clerk = their info is entered into criminal
record book → this has same effect as conviction + sentencing
= accused then renounces their trial rights by paying admission of guilt

Question 13

Securing the accused’s appearance in court

How do you determine wthether an admission of guilt is in a summons?

Summons

Answer 13

Summons will containing wording “charged with” = admission of guilt
- Contained in summons will also be time period within which payment of
admission of guilt must occur

Question 14

Securing the accused’s appearance in court

What are the two stages of summons?

Summons

Answer 14

• Stage 1 = summons says accused must appear in court on specified date + time & must stay present until are dismissed →
  Where accused fails to appear in court on date + time specified in summons OR
  accused fails to remain in attendance @ proceedings = accused will be guilty of
  offence >s 55(1) of CPA
• Stage 2 = presiding officer may issue warrant of arrest
  = If accused is very ill then warrant of arrest can be withheld.If summons provides for admission of guilt for first offence → then warrant of arrest must make provision for admission of guilt for first offence
• First offence= what person is charged with in terms of summons

Court may also make provision for admission of guilt based on non appearance in warrant of arrest

Question 15

Securing an accused’s appearance in court

How are summons issued with regards to child offenders ito sec19 of CJA?

Answer 15

s 19(2): where summons is served on child in terms of s 54 must be served in
presence of their parent//guardian → both child + parent/guardian must acknowledge service by way of signature/mark

s 19(3): officer serving summons must explain to child nature of allegations against them, their rights, immediate procedure to be followed, warn child to appear on preliminary inquiry date, warn parent/guardian that child must be brought to preliminary inquiry

> Officer must no later than 24 hours after serving summons on child notify probation
officer concerned

Question 16

Securing the accused’s appearance in court

When is the s56 written notice applicable?

Written notice ito s56 of CPA

Answer 16

-Only applies to smaller offences with fine up to R5 000
-Only applies in MC
I-f peace officer (usually police officer) on reasonable grounds believes that MC will
not impose fine exceeding R5 000 – then can hand accused written notice

Question 17

Securing the accused’s appearace in court

What must a written notice for an adult provide for?

Written notice ito s56

Answer 17

• must provide for admission of guilt
  -This means that written notice will always offer accused option of paying set
  admission of guilt fine in order to avoid court appearance

Question 18

Securing the accused’s appearance in court

What are the two stages of a written notice?

Written notice ito s56

Answer 18

• Stage 1 = document (ie. written notice) says accused must appear in court on
  specified date + time & must stay present until are dismissed> failure to appear they will be guilty of an offence s55
• Stage 2 = PO issue warrant of arrest
  = If accused is very ill then warrant of arrest can be withheld
  Written notice will make provision for admission of guilt for first offence → so
  warrant of arrest must make provision for admission of guilt for first offence

= summary inquiry takes place where matters of admission of guilt are not dealt with in court

Question 19

Securing the accused’s appearance in court

What must the accused do when a warrant of arrest is issued in terms of non-compliance with summons+written notice?

Answer 19

accused must convince court that it was not their fault that they did not appear in court – otherwise will be convicted of offence for non-appearance in terms of s
55(1) of CPA
- s 55(2) places an onus on accused to satisfy court of innocence

Question 20

Securing the accused’s appearance in court

What did the Singo case state rgarding sec 55(2) onus on the accused?

Answer 20

= court declared s 55(2) to be unconstitutional in respect of burden imposed on accused →summary procedure (as is used in s 55(2)) is not unconstitutional & CC was able to save s55(2) by reading in words “reasonable possibility” to lighten burden of accused

= court can issue warrant for absent accused if are satisfied that accused is indeed absent →there is practice of calling name of accused 3 times to determine if they are absent

Question 21

Securing the accused’s appearance in court

How does s18 of the CJA regulate written notice for child offenders?

Answer 21

s 18(1): written notice can be handed to child to direct them to appear @ preliminary inquiry for schedule 1 offence

s 18(2): written notice cannot make provision for child to admit guilt + pay fine

18(3): notice must be handed to child in presence of parent/guardian+ must acknowledge receipt by means of
signature/mark

Question 22

Securing the accused’s appearance in court

How does an Indictment secure an accused’s appearance in court?

Indictment

Answer 22

s 144(1) – (3) of CPA: indictment contains following info in relation to
accused –charge,name → can be left out if will prejudice/cause harm to accused, address,sex , nationality ,age
= list of witnesses (that are not contained in dockets)

• Indictment + notice of trial must be served on accused @ least 10 days before
  date of trial (days do not include Sundays + public holidays)

Question 23

Securing an accuseds appearance in court

How is an indictment served on the accused?

Indictment

Answer 23

• Served by handing it to accused in substantially same manner as summons
  OR is handed to accused by magistrate who commits them to superior court
  for trial
• Return of service is necessary to show prima facie proof of service .Failure to appear in terms of indictment → s 55(1) + 55(2) will be applicable

Question 24

Reasonableness of exercise of powers

What do section 20+21 of the CPA provide for in regards to reasonableness?

Answer 24

• s 20 of CPA → provides that certain articles can be seized if they are
  reasonably believed to be articles of certain nature
• s 21(a) of CPA → authorizes issuing of search warrants where it appears from
  info that are reasonable grounds for believing certain articles will be found in
  certain place

Question 25

Reasonableness of exercise of powers

When does a person have reasonable grounds to believe or suspect something?

Answer 25

a. Actually believe/suspect it
b. Belief/suspicion is based on facts from which inference is drawn
c. Reasonable person would in light of these facts have drawn same inference

Question 26

Requirements for lawful arrest

Which two categories of persons can affect an arrest?

Answer 26

a. Peace officers
b. Private individuals (with limited powers)

Question 27

Requirements for lawful arrest

What are the 4 requirements for a lawful arrest?

Answer 27

1. Arrester must have authority to make arrest
   = can only derive authority from legislation to make arrest –not common law
   s 40 of CPA → authority for peace officer to make arrest
   s 42 of CPA → authority for private persons to make arrest
2. Arrester must take physical control of body of person > By saying they are arresting them for certain offence
   If person under arrest subjects themselves to authority/control → then arrester has
   no right to exercise physical control over them
3. Arrester must inform person under arrest of reason for arrest

4.4. As soon as possible person under arrest must be taken to police station-Only SAPS has powers to detain persons

Question 28

Requirements for lawful arrest

What happens when the arrester does not have a warrant?

Answer 28

Where arrester is not in possession of warrant at time of arrest (but it exists) =
then courts have decided this is not on demand so it is not acceptable

Effect arrest without warrant → requirement is must inform person under arrest what reason for arrest is, immediately or after arrest

Question 29

Requirements for lawful arrest case law

What did the Du Plessis case state regarding detaining a person after an arrest?

Answer 29

= accused arrested for drunk + disorderly
= there is accepted practice to keep person who is drunk + disorderly in custody for 4
hours to sober up
= 4 hours ran out ran out in early morning – next morning accused was only released
at 12
= court held that this practice is acceptable → makes sense to not release person in
middle of night, but then must be released first thing in morning

Question 30

Requirements for lawful arrest case law

What did the Coetzee+Sekhoto cases state regarding use of less infringing ways to affect an arrest?

Answer 30

a. If offence is relatively serious → there is no requirement that arrester must
consider less intrusive way to get person under arrest before court >person is arrested in terms of s 39 requirements = amounts to lawful arrest

b. If arrester fails to determine less intrusive way to effect arrest → still amounts to lawful arrest

= courts looked @ requirements in Constitution that person should not be arrested for less serious offence & concluded that requirements for lawful arrest are still rooted in s 39 of CPA so it is not 5th pillar to use less intrusive means to effect arrest

Question 31

Arrest with a warrant

What is a warrant of arrest?

Answer 31

= written order that instructs certain person to make arrest -Can only be executed by peace officer (not private persons)
= allows peace officer to arrest person in terms of offence set out in warrant & that
they be brought before lower court

Question 32

Arrest with a warrant

Who can issue a warrant of arrest?

Answer 32

1. Magistrate
2. Justice of peace

Question 33

Arrest with a warrant

Who can apply for a warrant of arrest?

Answer 33

= DPP
= DDPP
= PP
= commissioned police officer

Question 34

Arrest with a warrant

What are the requirements for a warrant of arrest ito s43(1) of the CPA?

Answer 34

1. Allege offence has been committed
2. Indicate that offence was committed in area of magistrate/peace officer OR
   indicate that there are reasonable grounds to believe person is in their area of
   jurisdiction
3. Affidavit under oath
   = states that there are reasonable grounds that person who committed offence in terms of which they are to be arrested

Question 35

Arrest with a warrant

When may a warrant be issued?

Answer 35

s 43(3) of CPA –Warrant may be issued on any day & remains in force until it is cancelled by person who issued it OR until it is executed