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Chapter 1
Tension between crime control and due process
Introduction
- Victims’ rights – Chapter 1 paragraph 2.4
Constitutional criminal procedure – Chapter 1 para 3
- S v Makwanyane – Capital punishment
- Abolished in 1995
- Bill of rights
- S2: any law not in line with rights set out in the constitution should be declared
unconstitutional
- Laws in force during apartheid were not declared automatically unconstitutional. Its
has to be challenged and declared unconstitutional by court and confirmed in CC or
repealed by parliament.
- S7 & 8: The law binds all three branches of government and state organs as well as
private persons.
- S36: Limitation clause, limits both individual and state rights.
- S37: State of emergency – non-derogable rights
- S38: locus standi in constitutional litigation
- S39: Interpretation of the bill of rights
- S35: Rights of detained, arrested, accused (Veldman v DPP)
Case: Social Justice Coalition v Minister of Police 2019
- There was a commission of inquiry that uncovered that there was unfair police
occupation in areas predominantly inhabited by black people.
Important concepts in criminal evidence
- Passive defense right
(a) Presumption of innocence and legal guilt: you are presumed to be innocent until the
state proves that you are legally guilty beyond a reasonable doubt.
(b) Burden and standard of proof beyond a reasonable doubt.
(c) Presumption of innocence & nature of the crime
(d) Right to remain silent & privilege against self-incrimination
,Accusatorial v Inquisitorial criminal procedure – Ch 1 para 4
Important differences:
- Judicial officers:
- in an inquisitorial process is much more involved. Actively involved in investigation
and questioning witnesses.
- Accusatorial process sees the police doing much of the work mentioned above. After
investigation dossier is handed over to the NPA and they present the case to the
court and try to establish guilt. The state and the accused are at “battle”. The state is
referred to as the Dominus Litus or master of proceedings. Judges may ask some
questions (why they pled guilty) but not to the same extent as in an inquisitorial
process.
Historical stuff: Chapter 1 para 4
Phases of crim proc
- 1652 to 1806 RDL was applicable to our rules of crim proc. Inquisitorial in nature but
more brutal. Torture was commonplace.
- 1806: second British occupation of the cape – RLD substantive and the English
accusatorial process.
- 1910: Union of SA – English influence on procedural law intact – 1917: first
comprehensive Criminal Procedure Act.
- 1961: SA became a republic – 1977 is when our most recent CPA was promulgated.
- 1994: introduced a comprehensive bill of rights and fair trial rights.
SA Courts Today
- Presiding judge/magistrate with or without assessors: Main Judgement joined by
other judges becomes majority. Judges may disagree and deliver a dissenting
judgement, and there may be other concurring judgements that agree with the
outcome but for differing reasons. Assessors are people from the community who
assists a judicial officer in deciding on the matter. They have an equal vote on
matters of fact. Matters of law are decided by the judicial officer. In the higher
courts, assessors are experts in their field e.g.,
engineers or doctors.
- Prosecutor (LC)/State advocate (HC):
- Accused with or without legal representation: No automatic right to legal
representation. Must apply for it and the court will decide if you are eligible for legal
rep at the state’s expense. Test is: Would there be substantial injustice if you didn’t
get a state prosecutor.
- No jury: 1969
,Sources of CPL
- Criminal Procedure Act 51 of 1977
- National Prosecuting Authority Act 32 of 1998
- Constitution 1996 (S35)
- Common Law and Case Law
Other statutes
- Child Justice Act 75 of 2008 – Criminal Capacity is 10 (Child Justice Amendment Act
28 of 2019 – Criminal Capacity will change to 12)
- Extradition Act 67 of 1962 – to get people back to prosecute them
- Criminal Law Amendment Act 105 of 1997 – minimum sentencing guidelines
- Legal Aid South Africa Act 32 of 1998
Remedies in Criminal Procedure
- Illegal Search and Seizure will be in the first test
- Habaes Corpus (interdictum de libero homine exhibendo): Requesting the police to
provide the body of the person who has been detained and explain why. Legal
interest: Liberty. Respondent: Police (cf. Magna Carta 1215 par.39)
- Action for Damages: Police do an unlawful search, and you claim back damages
suffered at the expense of the police. (Shashape v The Minister of Police)
- Interdict against the police. It’s an order of the court. You may get an interdict if the
police are constantly pestering you.
- Mandamus: an order to do something. They seize something unlawfully and you
order it back
- Exclusionary rule: Evidence may be excluded if they are obtained unconstitutionally.
There are exceptions subject to the court’s discretion i.t.o S35 of the Constitution. (S
v Naidoo)
- Public Protector/Human Rights commission/Independent complaints directorate
(Police issues)
- Informal remedies: Physically escape unlawful detention.
, Chapter 2
Criminal Courts and aspects of Jurisdiction in SA
Central Issues
- What is jurisdiction?
- Types of jurisdictions.
- Exercise of jurisdiction.
- Criminal jurisdiction of different courts.
- Juris + Dictum: Jurisdiction is the authority of a court to hear and decide a dispute or
matter.
Aspects of Jurisdiction
- Substantive v. Procedural
- Personal – Impact of immunities: R v Holm; R v Pienaar (S 110A CPA)
- Territoriality – Extraterritoriality – e.g., implementation of the Rome Statute of the
International Criminal Court 27/2002; Corruption – S v Kruger.
- Universal Jurisdiction – certain crimes e.g., torture as a crime against humanity
(National Commissioner of the SA police v. Southern African Litigation Centre and
Others.)
Substantive v. Procedural
- Substantive
o Types of Crimes
o High Courts – Original jurisdiction with reference to all crimes. Inherent
(Common Law) Jurisdiction.
o Regional Court – may hear all crimes except Treason
o District courts – Substantive jurisdiction over all crimes except: Treason,
murder, rape, and compelled rape.
- Procedural
o Enforcement of the law or formal jurisdiction
o E.g., impact of immunities
o Sentencing:
o High Court: Up to a life sentence.
o Regional: 15 years.
o District: 3 years.
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