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CMP2601 QUESTIONS AND ANSWERS FOR EXAM
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Indicate whether the following statements are true or false, by inserting (in thebox) either the word 'True' or 'False'
1 A magistrate's court is competent to pronounce on the validity of all Acts of
the Republic of South Africa
False, only superior courts
2 A regional court is competent to impose a fine not exceeding R30 000
False, R600 000.00 (MC R120 000.00)
3 When an accused is illegally abducted from a foreign state by the Hawks, a
directorate within the South African National Prosecuting Authority, and
handed over to the South African police, the High Court before which such
abducted accused person is arraigned will have jurisdiction to try that
person
False, such court will have no jurisdiction Ebrahim, Beahan
4 A person who exercises his right to silence at his trial may run the risk of
being penalized for exercising that right
False, however it may damage his defence if it cannot rebut state’s version
5 The formal-law consequence of an unlawful action by a police official has
the effect that evidence obtained by the police official in a manner that
violates any right in the Bill of Rights must be excluded automatically
False, exclusionary rules apply in certain instances
6 Any person who is lawfully in charge or in occupation of any premises may
at any time enter such premises for the purpose of searching such
premises and seizing any arms, ammunition and explosives
True
7 A preparatory examination is a trial because the final decision in the pre-
trial proceedings rests with the court
False, not a trial because final decision rest with the DPP and not with the court
8 The degree of force that may be used in order to effect an arrest must be
absolutely necessary in all the circumstances
, True
9 It is a worthy ideal to be pursued in any criminal justice system namely the
principle that each person who is accused of a serious crime and is not
able to afford legal representation, should be provided with legal
representation at state's expense, however South Africa cannot afford to do
so hence the provision in the Constitution limiting legal counsel at state
expense to cases where material injustice would result
False, in Rudman it was stated that it is a worthy ideal to be pursued in any
criminal justice system namely the principle that each person who is accused of a
serious crime and is not able to afford legal representation, should be provided
with legal representation at state's expense in order to avoid an unfair trial.
Although the present circumstances in SA are such that this cannot be achieved,
it does not detract from the fact that the ideal should be pursued vigorously.
10 Only South African citizens may be appointed to the position of National
Director of Public Prosecutions
True, SA Citizen, LLB degree, admitted to practice
11 The National Director of Public Prosecutions is appointed by the Minister of
Justice
False, by President, DPP appointed by President after consulting with NDPP &
Minister of Justice
QUESTIONS:
[1] Name the remedies to infractions or threatened infractions of fundamental
rights (7)
➢ The rights of the suspect are maintained and state official encouraged to
conform to the principle of legality by sanctions ranging from informal social
sanctions to formal legal sanctions.
1. The writ of habeas corpus (interdictum de libero homine exhibendo):
, 1. Remedy to obtain judicial review of police action – protecting the
subject against unlawful deprivation of his liberty.
2. Court asked for order that the respondent produce the detainee
before the court at a certain date.
3. Order coupled with a rule nisi that the respondent must show
reason why the detainee should not be released.
4. Prima facie reasons for believing the detention is wrongful must be
adduced.
5. The application heard by single judge in civil court & preference on
roll.
6. Application may be made ex parte.
7. The return date is set as early as possible may be same day.
2. Civil Action for damages
1. e.g. on the grounds of wrongful arrest.
2. A delictual liability which may be used by suspects for
compensation of abuse which they suffered.
3. The interdict:
1. An order of court whereby a person is prohibited from acting a
certain way.
2. to limit or prevent harm or damage.
3. May be obtained where harm has not occurred but is threatening.
4. May be employed during criminal proceedings to obtain relief for
e.g. detainees.
4. Mandamus:
1. The reverse of an interdict – a positive order that a functionary
perform their duty.
e.g. Furnish an accused with proper particulars relating to the
charges.
5. The exclusionary rule:
, 1. Contingent on a finding that admission would be unfair to the
administration of justice.
2. Courts have guided discretion to exclude or admit.
3. Aims to deter unlawful police conduct in the pre-trial process by
rendering illegally obtained evidence inadmissible.
4. Remedy as a means of maintaining and vindicating the principle of
legality.
6. Informal remedies:
1. To resist unlawful arrest or escape from unlawful custody, however
may be risky.
7. Constitutional mechanisms:
1. for maintenance of human rights and legality as against
overbearing state action contained in the constitution.
State and private institutions supporting constitutional democracy. (Public
Protector, HRC)
[2] Name any five (5) relevant considerations for diversion as prescribed in
terms of chapter 8 of the Child Justice Act, 75 of 2008 (ss 51-62) to be
considered by the prosecuting authority in the case of a child offender after
a preliminary inquiry or a trial (5)
The following factors should be taken into account when considering diversion
options;
• Is the level appropriate to the crime alleged
• The child’s cultural, religious and linguistic background must be taken into
account
• The child’s educational level, cognitive ability and domestic and environmental
circumstances must be kept in mind
• The option selected must be proportional to the circumstances of the child,
the interest of society and the nature of the offence (similar to view in Zinn)
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