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NOTESCriminal Procedure 2
CMP301-A
1. INDICTMENTS AND CHARGE SHEETS
Section 32 of the Constitution - Access to information
(1) Everyone has the right of access to -
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or
protection of any rights.
Section 35 of the Constitution – Arrested, detained and accused persons
(3) Every accused person has a right to a fair trial, which includes the right -
(a) to be informed of the charge with sufficient detail to answer it;
1.1. Lodgement and service of indictments and charge sheets
High Court: Indictment
Lower Courts: Charge sheets
Accused is entitled to have access to documents in the police file (Shabalala v Attorney-General),
unless such disclosure may prejudice the police investigation or prosecution of the crime. He
further has the right to be informed of the charge with sufficient detail to answer it. The legislature
has, however, endeavoured to avoid criminal trials being rendered abortive merely because of
insignificant mistakes made by the persons who draw up indictments or charge sheets.
Golden rule: An indictment or charge sheet should inform the accused in clear and unmistakable
language of the charge he has to meet – Pillay.
Section 76 of the CPA - Charge-sheet and proof of record of criminal case
(1) Unless an accused has been summoned to appear before the court, the proceedings at a
summary trial in a lower court shall be commenced by lodging a charge-sheet with the clerk
of the court, and, in the case of a superior court, by serving an indictment referred to in
section 144 on the accused and the lodging thereof with the registrar of the court concerned.
In superior courts
The DPP must lodge an indictment with the Registrar of the High Court after deciding to indict
an accused, which is presented in the name of the DPP wherein he informs the court that the
accused is guilty of the crime alleged therein. Such an indictment must contain:
(i) the charge against the accused;
(ii) the date and place at which the crime was allegedly committed;
(iii) certain personal particulars of the accused;
1
(iv) where no preparatory exam has been held, a summary of the facts of the case must be
attached to the indictment (this need not be given where it will be prejudicial to the
administration of justice or the security of the state);
(v) a list of witnesses and their addresses that may be called by the state (this may be
withheld if the DPP believes the witnesses may be tampered with or intimidated).
The indictment must be served on the accused by the sheriff at least 10 days before the date of
the trial, unless the accused agrees to a shorter period.
In the lower courts
Unlike the indictment, this is presented in court where he may examine it and is not served on
the accused. The accused is brought to court on written notice, by summons or under arrest. If
a summons is served on him, it must be served at least 14 court days before the date of the
trial. If this is insufficient time for him to prepare his defence, the court may grant a
postponement. In Singh v Blomerus it was held that short service to which no objection had
been made at the trial could not be relies on before the appeal court.
1
The State is not bound by the summary of facts and can lead evidence which contradicts it.
,CMP301-A Page 2 of 64
1.2. Form and substance of charges and indictments
Charge sheets should be kept as simple as possible and should reflect all the elements of the
offence or, put differently, the charge sheet should disclose an offence.
Section 84 of the CPA - Essentials of charge
(1) Subject to the provisions of this Act and of any other law relating to any particular offence, a
charge shall set forth the relevant offence in such manner and with such particulars as to the
time and place at which the offence is alleged to have been committed and the person, if
any, against whom and the property, if any, in respect of which the offence is alleged to
have been committed, as may be reasonably sufficient to inform the accused of the nature of
the charge. {Specifically required}
Drafters of indictments should not slavishly follow the wording of a statute, but should confine the
charge to what is relevant (Mangqu) and, in terms of Section 84(3) of the CPA, the description of a
statutory offence will be sufficient if the words of the enactment or similar words are used.
If time isn’t an essential element of the crime, failure to refer to it won’t render the charge defective
- Section 92(1). If the time is mentioned but it is proved that the act was committed on any day or
time not more than 3 months before or after the day alleged, such proof will be taken to support
such allegation, provided the time is not of the essence of the offence - Section 92(2). If the
accused raises an alibi as a defence (i.e. at the time he was elsewhere) and the court believes that
the accused will be prejudiced in making such defence if proof were to be admitted that the offence
were committed on some other day or time (even though the time to be proved is within the 3
month period, such proof must be rejected.
2
Place may also be important as some crimes can only be committed in certain places and the
charge will be defective if it does not allege that the offence was committed in such a place. Where
3
mental attitude is an essential element of a crime, it should be averred or else the charge will not
disclose an offence.
Golden rule: Incriminating factors (necessary averments) must be proved by the prosecution and
reflect on the charge sheet; exculpatory factors (exceptions) need not be mentioned and must be
proved by the accused. If unnecessary averments have been included, it may be amended unless
refused by the court. Such unnecessary averment will not affect the validity of the proceedings
unless it embarrasses the accused in his defence.
If the accused believes the particulars in the indictment are inadequate to inform him properly of
the charge, he can request further particulars from the State. In addition, he can request further
particulars even if the charge sheet is not inadequate in order to enable him to prepare his defence.
Reluctantly, the High Court will intervene in pending proceedings in the Magistrate’s Court by
granting a mandamus to direct the Magistrate to order the prosecutor to deliver further particulars
only if it is necessary to prevent a grave injustice. Such further particulars may be delivered to the
accused free of charge at any time before evidence is led. The function of particulars is to define
the issues and not enlarge them. When the accused fails to apply for further particulars, he may
not set up the inadequate narration of particulars on appeal. Where the request for further
particulars was refused and it is shown on appeal that such refusal prejudiced the accused, the
court will set aside the accused’s conviction. Where particulars are given, the state must prove the
charge as particularised and where a conviction is based on evidence not covered by the
particulars, the conviction may be set aside on review.
1.3. Defect in indictment or charge cured by evidence
Before 1959 the courts consistently required indictments to disclose an offence and if a material
element of the crime was omitted, the accused could not be found guilty, even if the evidence at
the trial proved the omitted element.
Section 88 of the CPA - Defect in charge cured by evidence
Where a charge is defective for the want of an averment which is an essential ingredient of the
relevant offence, the defect shall, unless brought to the notice of the court before judgement, be
cured by evidence at the trial proving the matter which should have been averred.
This means that the accused can now be found guilty even though the indictment does not disclose
an offence as long as the evidence proves the offence. This alleviates the burden of prosecutors,
but is open to criticism:
At the very least, the offence with which the accused is charged should be named (e.g. use the
word “theft” in the indictment on a charge of theft).
2
Example: Reckless and negligent driving can only be committed on a public road
3
I.e. Intentionally, knowingly, maliciously or negligently
,CMP301-A Page 3 of 64
The prosecutor should exercise caution by framing the charge in such terms that it does
disclose an offence, otherwise the accused can raise an exception against it before pleading.
If the accused brings the defect to the court’s attention before judgment and it refuses to amend
the charge, the accused can rely on this on appeal to have his conviction set aside.
A defect can only be cured by evidence proper, not by the invocation of statutory provisions and
presumptions. The replies of an accused who has pleaded guilty to questioning may be treated
as evidence capable of curing a defect in the charge.
Section 88 doesn’t authorise replacement of one offence by another offence proved by
evidence (eg. ‘meat’ for ‘jersey’ in a theft charge)
1.4. Correction of errors in charge
Section 86 allows for the amendment of charge sheets that are defective where:
a material allegation, such as an element of the offence in question, isn’t reflected therein;
there is a material difference between the allegation in the charge sheet and the evidence that
has been led;
where words have been omitted, unnecessarily inserted or any other error is made.
Before 1959 it was generally accepted that a charge could only be amended where it disclosed an
offence. In 1959 the Supreme Court of Appeal in Crause held, however, that a trial court could
correct the indictment even though it did not disclose an offence. This was confirmed by an
express provision in the 1959 CPA. The following points regarding amendment should be noted:
Court may order an amendment only if it considers that the making of the amendment will not
prejudice the accused in his defence. There won’t be prejudice if there is only a slight variance
or where it is clear that the defence would have remained exactly the same had the state
originally presented the charge in the amended form.
Section 86 makes provision for the amendment of the charge and not replacement thereof by
an altogether new charge. If the proposed amendment doesn’t correspond at all to the original
charge, then we talk of substitution and not amendment. Should a new charge be framed in the
course of a trial, the possibility of prejudice to the accused is strong as he comes to court
prepared to meet a particular charge and now will be faced with a different issue.
Section 86(4) provides that the fact that the charge is not amended doesn’t affect the validity of
the proceedings, unless the court has refused to allow the amendment. If the failure to amend
wouldn’t have prejudiced the accused in his defence, the failure to effect the amendment will not
invalidate the proceedings. Because Section 88 allows for defects to be cured by evidence, the
need for amendments has largely fallen away, except where the accused brings the defect to
the attention of the court.
The combined effect of Section 86 and 88:
Unless it is prejudicial, any amendment to a charge can be made at any time before judgment is
passed;
Inadvertent failure to amend a charge doesn’t affect a verdict of guilty, provided that all the
necessary evidence has been adduced;
A defect in the charge can only be adduced on appeal if the trial court knowingly failed to
correct it.
1.5. The splitting of charges or duplication of convictions
4
Frequently, one and the same act of a person constitutes more than one offence . Furthermore,
5
one person can commit several offences by conduct spread over a period or by a series of
6
actions . A perpetrator may be charged with all the offences, but he shouldn’t be convicted of all of
them in consideration of fairness.
Section 83 of the CPA - Charge where it is doubtful what offence committed
If by reason of any uncertainty as to the facts which can be proved or if for any other reason it is
doubtful which of several offences is constituted by the facts which can be proved, the accused
may be charged with the commission of all or any of such offences, and any number of such
charges may be tried at once, or the accused may be charged in the alternative with the
commission of any number of such offences.
4
Example: A man assaults a woman below the age of 16 and forcibly has intercourse with her. His conduct may constitute any of
the following: common assault; assault with intent to rape; rape; statutory rape.
5
Example: A person pretends to be a medical doctor and treats patients for a year
6
Example: A man attacks a women, rapes her and runs away with her handbag assault with intent to commit rape; rape; robbery
and theft
, CMP301-A Page 4 of 64
The courts developed a rule against splitting (or duplication) of charges, but in truth the emphasis
has always been on preventing a duplication of convictions. Thus, if there is uncertainty as to which
facts can be proved (including legal uncertainty), the state may formulate as many charges as the
available facts justify. The rule against duplication of convictions is to be approached on the basis
of the following possibilities:
A single act constitutes more than one statutory offence, or statutory and common law
offences
Section 336 provides that where an act constitutes an offence under 2 or more statutory
provisions or is an offence against a statutory provision and the common law, the perpetrator
may be prosecuted and punished under either the statutory provision or the common law but
not liable to more than one punishment. Examples:
(i) Where a man is charged with incest on the ground of connection with his daughter who is
under 16, as well as connection with a girl under 16, this is undue splitting.
(ii) There is undue splitting if the accused is charged in respect of the same act with assault
and with committing the statutory offence of pointing a firearm.
(iii) Where an accused is convicted of driving under the influence of liquor and reckless
driving it is duplication of convictions.
A single act constitutes more than one offence at common law
Examples:
(i) Where an accused was found stripping lead from a roof intending to steal it, he could be
convicted of theft but not also of malicious injury to property.
(ii) Where an accused was charged with rape and incest arising from the same act, he could
only be convicted of one.
(iii) Where 2 people are killed in the same road accident, it is improper to convict the accused
on 2 counts of culpable homicide. A single charge should refer to both deceased.
More than one act of the same nature or of more or less the same nature is committed
practically simultaneously, constituting more than one offence (whether a statutory or
common-law offence)
Test: Were the acts done with a single intent and were they part of one continuous transaction
or does the evidence required to prove the one charge necessarily involve proof of the other?
The ultimate rule is that the court must judge whether, according to the difference in nature and
degree of the facts, one or more offences have been proved. In Kuzwayo it was pointed out
that there are borderline cases which may not be covered precisely by the tests and, therefore,
whether the actions of an accused amounts to more than one offence must be judged in each
case on the basis of “sound reasoning and the court’s perception of fairness”. Where the nature
of the separate acts that have been committed and the intent with which each act has been
committed differ to such an extent that it is impossible to accommodate all the acts within one
offence only, conviction on multiple charges would not constitute an improper duplication of
convictions. Examples:
(i) If an accused, in the act of committing rape, tears the victim’s jacket, he may not be
convicted of rape and malicious injury to property. But should the accused after the
completion of the rape take the victim’s purse which has dropped from her jacket, the
accused commits the further act of theft.
(ii) If a man breaks into a house with intent to steal and thereupon commits theft from the
house, he should only be charged with housebreaking with intent to steal and theft, but
where a burglar breaks into different flats in one block, this is different offences.
(iii) If an assault is committed pursuant to, and in the course of, an attempt to escape, the
accused should be convicted of only one of these offences.
(iv) Where an accused drives under the influence of alcohol and through his negligent driving
causes the death of other persons, he may be convicted of culpable homicide and driving
under the influence of intoxicating liquor.
Conduct of the perpetrator is spread over a long period of time and amounts to a
continuous repetition of the same offence
The decisions of our courts are conflicting on whether such conduct should form the subject of
one conviction only. Example:
(i) Once it is established that someone is wrongfully practicing as a medical doctor, each act
of treating a patient is a separate contravention.
(ii) Where an accused has stolen goods from 2 complainants living in the same room he can
only be convicted on one charge of theft.
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