English
[417], Issues such as the role and position of the prosecuting authority are very topical, especially in the light of recent cases involving President Jacob Zuma.[418]. [560] They are not conviction-based. This discrepancy may still be important, however. The court shall ask accused whether any allegation not in issue may be recorded as an admission in terms of section 220 (which provides that formal admissions by the accused relieve the State of the burden of proving such facts). Proper notice of the plea must be given. [320], Sentences are usually only postponed in the less serious cases, or where special circumstances prevail: for example, where the age of the offender is an important factor. Other points of the witness's evidence not covered by the deviation may still be accepted by the court. [260], The prosecutor is not obliged to lead all available evidence,[261] but he must make available to the defence those witnesses whom he does not call. The NDPP appoints prosecutors. The trial is to take place without delay. imprisonment exceeding three months, where the magistrate has less than seven years' service as such; imprisonment exceeding six months, where the magistrate has at least seven years' service as such; fines exceeding the amount determined by Minister from time to time (currently exceeding R6 000 for a magistrate with less than seven years' experience, and R12 000 for a magistrate with more than seven years' experience). This means that the State is at all times, and in all cases, obligated to ensure that accused persons are not exposed to unreasonable delay in the prosecution of the cases against them. [169] Charges may also be framed in the alternative. Minimum-sentence provisions, in terms of section 51 of the Criminal Law Amendment Act,[327] are very important for the sentencing process at present. that the prosecutor assigned to the case was herself involved in one such part-heard matter. Any number of charges may be joined in the same proceedings against the same accused, before any evidence has been led. which is intended or reasonably believed to be intended to be used in the commission of an offence. Furthermore, section 73 of the CPA states that an accused is entitled to assistance after arrest and at criminal proceedings. The court held, however, that the defence had also raised trial-related prejudices: The delay could not be ascribed, however, to a particular person or instance; it was due to a combination of factors, including the practice of continuing rolls, the overcrowding of rolls, the fact that certain matters had not been completed during the previous court term, the fact that certain prosecutors were unable to take on new matters, and the priority to be given to matters which were age-related, or where the accused were in custody. It may rely instead on section 75. [126] This means that, The provisions of section 60 do not apply to bail pending appeal, although they may still be relevant to the extent that they embody common-law concepts. [574] The court will make such order if it finds on balance of probabilities that the property in question is, The rights of persons who, on balance of probabilities, acquired such property legally and neither knew nor had reasonable grounds for believing that it was an instrumentality or was the proceeds of unlawful activities, are protected.[575]. What are the Different Types of Criminal Pleas? If such person may not lawfully possess it, it goes to the person who may lawfully possess it. REPUBLIC OF SOUTH AFRICA THE SUPREME COURT OF APPEAL OF SOUTH AFRICA Case number: 332/04 Reportable In the matter between: ROAD ACCIDENT FUND APPELLANT and MXOLISI RICHARD MTATI obo ZUKHANYE MTATI RESPONDENT CORAM: MPATI DP, ZULMAN, FARLAM, VAN HEERDEN et JAFTA JJA HEARD: 17 MAY 2005 DELIVERED: 1 JUNE 2005 SUMMARY: Delict – pregnant woman … "Section 18 of the Criminal Procedure Act: the balance between hope and dread" 2004. Further particulars may only be requested before the commencement of evidence. [96] The court has a duty to warn the accused that anything said by him in evidence during bail proceedings may be used in evidence against him at trial. refusing further postponement of the proceedings; granting a postponement subject to any such conditions as the court may determine; where the accused has not yet pleaded to the charge, ordering that the case be struck off the roll and the prosecution not be resumed or instituted. In addition to the rights just mentioned, the accused has the right to be informed of these rights. The National Director of Public Prosecutions (NDPP) is at its head. November 1991 to the time of the present application. the victim of a crime cannot force prosecution by the State; the victim of a crime cannot prevent prosecution by the State; and, the victim of a crime (or an outside party or. If such person is not entitled to it, or may not lawfully possess it, the article is to go to the person entitled thereto, if he may lawfully possess it. on the ground that there was a reasonable risk that such disclosure might lead to the intimidation of witnesses or otherwise prejudice the proper ends of justice. [450], Another exception is where a police official reasonably believes that the warrant would be issued if he applied for it in the ordinary course of things, and that the delay in obtaining the warrant would defeat the object of the exercise. When the British occupied the Cape permanently in 1806, they retained the Roman-Dutch legal system. As one of the alleged incidents had occurred outside the jurisdiction of the trial court, it was necessary to obtain a ministerial directive to enable all the charges to be heard in the Port Elizabeth regional court. Delay could not be allowed to debase the presumption of innocence and become in itself a form of extra-curial punishment. This legislation introduced for the purpose of the inquest in In re Goniwe. [67] During the enquiry, the accused may supply evidence by affidavit instead of giving oral evidence, although affidavit evidence carries less weight than oral evidence.[68]. UK Criminal Justice Act 2003 Ch 44, ss 75â81. The application for postponement was therefore granted. court checks sentence agreement, and thereafter convicts and sentences if everyone is satisfied; and. [536] The onus for findings is a balance of probabilities. It was recently held that this is no longer the position, and that now the potential arrestor must also consider whether arresting the suspect would be reasonable in the circumstances,[28][29][30][31] but the Supreme Court of Appeal (SCA) has since differed from this line of case law, effectively reinstating Tsotsi. Plea bargaining, in law, the practice of negotiating an agreement between the prosecution and the defense whereby the defendant pleads guilty to a lesser offense or to one or more of the offenses charged in exchange for more lenient sentencing, recommendations, a specific sentence, or a dismissal of other charges. Proceedings under this Chapter are civil. When the State relies on common purpose between the accused and others, the State is obliged, if requested, to disclose the facts on which it will rely to draw inference of common purpose.[507]. The twenty-year period runs even if the prosecuting authorities are unaware of the crime. He brought an appeal on several grounds, but the most important for present purposes is his contention that certain persons whose names were mentioned in the evidence as prostitutes who resorted to this place were not called as witnesses. : This is the method used to transfer the accused from a lower court which does not have the jurisdiction to try the case. See S v Suliman. [288][289], The court may itself call witnesses[290][291] where this is necessary for a just decision of the case. [46][47] More recently the courts have inclined to the view that they do have an inherent, common-law power to release a person on bail even if there is no statutory provision permitting it. where the accused has pleaded to the charge and the State or the defence is unable to proceed with the case, or refuses to do so, ordering that the proceedings be continued and disposed of as if the case for the prosecution or defence has been closed; the state shall pay the accused concerned the wasted costs incurred as a result of an unreasonable delay caused by an officer employed by the State; the accused or his legal advisor shall pay the State wasted costs incurred; or. She was then was discharged after an objection was sustained that the documentary evidence filed in support of the application for extradition was deficient. Chapter 2 provides only generic provisions; it does not replace other search and seizure provisions in other laws,[439] such as those mentioned above. ... A list of many of the courts we attend in New South Wales. whether any person can be blamed for the delay; the effect of the delay on the personal circumstances of the accused and witnesses; the seriousness, extent or complexity of the charges; actual or potential prejudice caused to the State or the defence by the delay, including. [282][283][284][285][286][287], The effect of false testimony by the accused is usually equivalent to his giving no evidence. It also has wide-ranging provisions for forfeiture of assets. [471], Any weapon, instrument, vehicle, container or other article declared forfeited under section 35(1) shall be kept for thirty days from the date of forfeiture, or until a final decision, in terms of a section 35(4)(a) application, is made.[472]. [546], In terms of section 18, when a defendant is convicted of an offence the court may, on application of the prosecutor, enquire into any benefit which defendant may have derived from, If the court finds that defendant has so benefitted, it may make an order for payment to State of any amount it considers appropriate, up to the maximum value of. to acquire the information needed for a decision in an informal manner, if the prosecutor and the accused do not dispute this; to require the prosecutor or the accused to lead evidence of matters in dispute; to require (which is mandatory) that the prosecutor place reasons on the record if he does not oppose bail on a charge of a Schedule 5 or 6 offence; to order that further evidence or information be placed before the court if such is necessary for it to reach decision. The accused has a right to appeal to the High Court against any conviction or sentence or order of a lower court. Appeals are permitted to the High Court against a refusal of bail by a lower court, or against the amount or conditions of bail. This power should not be lightly exercised, as it tends to infringe on the right not to incriminate oneself. As to the meaning of "just sentence," it is not required that the court find that it is the exact sentence that it would have imposed.[520][521][522]. The Constitution refers specifically to an "accused person." [392][393][394] This is in contrast to the position in some other countries: the United Kingdom, for example, where there are many private prosecutions and police prosecutions. If he does not, that person will be precluded from proceeding civilly in connection with the same injury. The issue was the right of an accused to access to the police docket relating to the accused's impending trial in a magistrate's court on a charge under the Witchcraft Suppression Act. The accused in casu did not want a specific lawyer, as the lawyer did not speak his language. While more excusable than individual derelictions of duty, there had to come a time when systemic causes could no longer be regarded as exculpatory. realisable property specified in the order; all realisable property held by such person; and. [259] Documents of this type are catered for specifically in certain provisions. the possibility of incriminating evidence from the co-accused. The South African system today is basically accusatorial: that is, the state accuses and the accused defends. An example of the new provisions in practice is to be found in S v Sassin & Others. The court, therefore, could not assess the veracity of the allegations, whether Singh had a substantial and peculiar interest, and whether such interest arose out of some personal injury. The court held that the accused had not been discharged because of the prosecutor's action when the matter had still been in his hands; the prosecutor had no intention of stopping the prosecution. [424] In the first application, the applicant was the accused, who contended that he was entitled to this information by virtue of the provisions of sections 23 and 25(3) of the Constitution. He was informally arrested and released on warning. Guilty Pleas. [110] This section (65) should be read with sections 65(1)(b) and (c), and sections 65(2), (3) and (4). Before the plea, the prosecutors may withdraw a case, in which event. The manner in which arrests are to be carried out is dealt with in section 39(1) of the Act, which provides that arrests may be effected with or without warrant, and which envisages three scenarios: He is then to be informed of the cause of the arrest or, in case of an arrest with a warrant, to be given on demand a copy of the warrant. The judge is not merely a passive umpire; he is an administrator of justice.[292][293][294][295][296][297]. [374] In practice, he often queries a particular point or points. s 19 sets out how the value of the defendant's proceeds are calculated: in essence the payments or other rewards received. [228] It is a rule of practice that the court informs the accused of the effect of formal admissions. [527], As the court put it in Marais v Tiley, "An inquest is an official investigation into a death occurring otherwise than from natural causes, which has not been the subject of a criminal prosecution. The taking of samples, etc., violates the accused's right not to incriminate himself, as guaranteed by the Constitution. Here, too, the DPP must consult the victim and the investigating officer. When does the right of the state to prosecute a particular crime lapse? [238][239] This does not mean that the accused is entitled to a verdict immediately; it means only that proceedings may not be concluded without reaching a verdict. The prosecutor, however, is still obliged to disclose all evidence to the accused. [416] All prosecutors have to take an oath of office before acting as such. The court held that the public may not drive the system as part of the process; the public may only lobby or apply pressure in a similar way. Section 10 provides that the inquest is to be held in public, unless the judicial officer decides that there are good reasons to the contrary. The State had been obliged, when the third warrant of arrest was applied for, to disclose that there had been two previous warrants of arrest issued, that the first had been withdrawn, and that the second had culminated in the appellant's discharge. [347] Ultimate responsibility for ensuring that all copies of the record are properly before the High Court lies with the accused (now the appellant) or his attorney. any criminal activity which the court finds to be "sufficiently related" to those offences. There had been no averment in Singh's affidavit that he had complied with the requirements of section 7(1); the affidavit was incomplete, as none of the annexures referred to therein had been attached. Many countries, however, don't allow plea bargains, considering them unethical and immoral.Below is a discussion about what plea bargains are, why we use them and different types of plea bargains, as well as what happens if both parties don't live up to the terms. As to the question of whether a High Court has inherent power to grant bail, or whether bail release powers are only to be found explicitly in statute, earlier cases inclined to the view that a High Court did not have inherent power to release on bail if a statute law did not give it express power. During the trial, he learned that the witness would not be called by the Crown, and sought an order that the witness be called, or that the Crown disclose the contents of the statements to the defence. Before the trial, various applications were made to the trial court on behalf of the applicants, including an application that they be given copies of the relevant police dockets. [346] The clerk of court prepares the record and forwards it to the High Court. As to the constitutionality of the provisions in section 60, sections 60(4) to 60(9), 60(11)(a), 60(11B)(c) and 60(14) were held to be constitutional in S v Dlamini. In terms of section 37(2)(b), a medical practitioner attached to a hospital may take a blood sample of a person admitted to the hospital if he is of the reasonable opinion that such a sample may be relevant at later criminal proceedings. Certain provincial ordinances give the right of prosecution for certain offences to municipalities and the like; other legislation may give similar rights to other bodies or persons. Different types of defences that you may be able to raise. If a case goes to trial, prosecutors are not obliged to lead all the evidence in the docket. [414] Deputy DPPs have, subject to control of their DPPs, the same powers as DPPs. There are wider grounds for interfering on automatic review than in the case of a true review under section 24 of the Supreme Court Act. (1) The High Court of South Africa consists of the following Divisions: (a) Eastern Cape Division, with its main seat in Grahamstown. The DPP is obliged to produce such a certificate when he has declined to prosecute, and the person intending to prosecute instead has requested such a certificate.[401]. See more. [487] It depends on the circumstances of each case. See Behrman v Regional Magistrate, Southern Transvaal. A police official may enter premises without warrant to take a statement from anyone on such premises, but in the case of a private dwelling the consent of the occupier is also required. Furthermore, it was not shown how Heilbron was prejudiced by their not being called; it was open to Heilbron, who had all these names before him, to call the witnesses himself. The purpose of cross-examination is. [168] Such an order may be made even after the plea. It is the document on which a High Court trial is based (therefore it is the equivalent of the charge sheet in the lower court). An accused may be joined with any other accused in the same criminal proceedings at any time before any evidence has been led in respect of the charge in question. other matters relating to the conduct of the convicted person. [516] The court asks the accused to confirm that the agreement has been entered into. On 2 December 1994, the appellant appeared in court and was released on his own recognisance until early in the new year, with no charge having been put to him and without his being called upon to plead. Where the physical harm to another individual is so severe that it causes death, a defendant may be charged with any one of several Note that the State not obliged to provide the lawyer of the accused's choice. Once the prosecutor or DPP has agreed to diversion, the court makes an order that the case be diverted. In terms of section 66, the prosecutor may apply to court to have bail cancelled on grounds of noncompliance with the conditions of bail. For the meaning of "hostile witness," and the effect of a declaration of witness as hostile, see, for example, Meyers Trustee v Malan[298] and City Panel Beaters v Bana. Confiscation orders have the effect of civil judgments. variance between the charge and the evidence; the presiding officer is of the opinion that the offence merits punishment exceeding the limits provided in section 112(1)(a); or. If the prosecutor decides to prosecute in connection with the death, the inquest process stops there. [257] In practice this occurs only in complicated or serious cases. [114] If the accused appears within fourteen days, the court will enquire into his absence. In Mistry v Interim National Medical and Dental Council of South Africa, the Constitutional Court struck down a provision in other legislation giving sweeping powers to inspectors to search and seize without warrant. Section 144(3)(a)(ii) of the CPA permits the State to withhold the names and addresses of certain witnesses if there is a danger of tampering or intimidation, or if it is necessary for state security. [134][135] Some cases, however, have found that bail should not lightly be refused on this ground alone, especially by the lower courts, which do not have experience in assessing the prospects of a successful appeal. See S v Morrison. He would suffer irreparable trial prejudice should the suit continue. The accused's answers are not evidence that can be evaluated. 1948 (2) SA 677 (A). For an example of the application of the principle, see S v Whitehead, where the court ruled in the circumstances of the case that convictions of culpable homicide and public violence would constitute improper duplication.[499]. [537][538], In case of a death, where the body is destroyed or not found, and if the judicial officer makes a finding beyond a reasonable doubt that a death occurred, special provisions apply. [9] The effect of the arrest is that the arrestee is in lawful custody. Section 9 stipulates that, in such a case, the police may not arrest the child; they must take the child to its parents or, if they are unavailable, to some other appropriate adult. The object of such orders is not to enrich the State, but to deprive the convicted person of ill- gotten gains. [224] If the accused consents, this is recorded as a formal admission. Failure to allow a cross-examination may amount to a fatal irregularity. The problem used to be that because of the nature of negligence, the courts were uncertain if it was proper to have multiple counts of culpable homicide for the same action. transfer in terms of Chapter 19 (sections 119-122) of the CPA where the accused was requested to make a preliminary plea under s119. In addition to this, s144(3) of the CPA states that the indictment must be accompanied by a summary of substantial facts (this is not needed in the lower courts). On 5 October 1993, the matter was set down for trial in the week of 24 to 28 May 1994. [482] In terms of sections 35(2)(b) and 35(3)(f) of the Constitution, the accused may choose his own lawyer, and is entitled to a lawyer, no matter how trivial the case against him. The problem with these tests is that they are theoretically helpful but are difficult to apply. whether the nature or circumstances of the offence are likely to induce a sense of shock or outrage in the community in which it was committed; whether such shock or outrage might lead to public disorder if the accused were to be released; whether the safety of the accused might be jeopardised by his release; whether the sense of peace or security of the public would be undermined or jeopardised by his release; whether his release would undermine or jeopardise public confidence in the criminal justice system; and. The court held that the provisions of section 18 of the CPA were clear and unambiguous, and provided for the lapsing of the right to prosecute after the expiration of a period of twenty years from the date of the offence in the case of every crime other than one in respect of which the death penalty may be imposed. [331][332] In 1997, provisions were introduced to require an accused who intended to appeal from a lower court to obtain leave to do so from that court, or (if such leave should be refused) from the High Court by way of petition. [171], On the importance of properly informing the accused of the nature of the charge or charges, see S v Wannenburg. Fines are usually imposed with the alternative of imprisonment. The obligation to disclose is subject to a discretion with respect to the withholding of information, and to the timing and manner of disclosure. The defence anticipated the trial date and applied for a postponement; the trial was duly postponed to October 1996. Whether the summary is adequate depends on the nature of the case. The provisions provide for certain minimum sentences in respect of various categories of serious offences set out in the schedules to the Act. [583], Section 43 sets out the nature and requirements of a preliminary inquiry. Most defense attorneys would not advise a defendant to … [500] It can be after the plea, in other words, so long as no evidence has been led yet. If the court agrees with the defence's objection, it may order the prosecution to amend the charge or deliver particulars. [451], The person making an arrest may search the arrested person without a warrant. The court held further that the unrestricted meaning of a "private person" contended for by Singh was inconsistent with the recognition that private prosecutions were unusual; it was also a departure from the basic law that criminal prosecutions must be conducted by a public prosecutor. [59] Bail lapses on conviction, unless specifically extended. The court held that a successful application by the State for the setting aside of an acquittal, based on the grounds that the prosecutor had failed to obtain the necessary approval before stopping the proceedings, would be tantamount to giving the State "a second bite at the cherry." "Proceeds of unlawful activities" is defined in section 1 as any property or part thereof or any service, advantage, benefit or reward which was derived, received or retained, directly or indirectly, in connection with or as a result of any unlawful activity carried on by any person, whether in the Republic or elsewhere, at any time before or after the commencement of the Act. The trial proceeds as if charge has been amended in accordance with the particulars. Prosecutors do prosecutions in the district magistrate's courts and in magistrate court of the Regional Division. The issue of search and seizure is mainly a statutory matter; it is dealt with in a variety of statutes. If an arrestee is in transit to the court from an area outside the court's jurisdiction, the period expires at 16:00 on the day following that on which he is brought within the court's area of jurisdiction. [119], When an appeal against a conviction or sentence or order of a lower court is noted, this does not automatically suspend the operation of the sentence unless the court releases the convicted person on bail. Assistance, therefore, was derived from Canada. Later, during the course of the trial, the witness was again interviewed by a police officer; a written statement was taken. This means that the preparatory examination may still take place but it is so rare that it is insignificant for our purposes. Bail proceedings are to be recorded in full.[97]. One ought to look carefully at the wording of the relevant subsections, in particular at section 35(3)(m) of the Constitution, with its slight difference in wording compared with section 106. It will then confirm the cancellation and forfeiture unless the accused shows no fault. The applicant in that case had been expelled from his post in the Directorate of Special Operations, and subsequently had been prosecuted for defeating the ends of justice on various counts arising from alleged offences committed in the course of his duties as an investigator. When a crime is reported to the police, a police docket is opened. In addition not this, the public interest was served by bringing litigation to finality. [558] The court granting the restraint order has no inherent jurisdiction to rescind that order.[559]. See Extra Dimension v Kruger. [235] The court may have regard to both the incriminatory and the exculpatory parts of the plea explanation, as the court held in S v Cloete. [231] The effect of a formal admission[232] is to relieve the state of the necessity of proving the fact or facts in question. an amount such court may determine as security for the costs which may be incurred in respect of the accused's defence to the charge. There have been two types of constitutional challenge to section 37 thus far: As to the first type of challenge, the courts have consistently held that the taking of such samples does not violate one's right not to incriminate oneself. [173], Where any of the above particulars are unknown to prosecutor, it is sufficient that this be stated in the charge. A regional magistrate does not have the authority to issue a search warrant, unless it is issued during the course of criminal proceedings before him or her. Adjudication process of that country 's criminal law to compel the State seeks to withhold information to withhold information certain! Acknowledged that the Constitution ranks the right to access to the advent the! Seems appropriate not part of the prosecuting authority Act S 29 ( 5 ) of the court may have to! Prosecution based on their own staff, known as State advocates waives notice likely to an... 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