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Summary Attorneys admission exams - Court Procedure - Paper 1 - Criminal Practice
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Notes for criminal practice - Paper 1 - Court Procedure
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Criminal PracticeSummary of Exams supplemented by course packs
The right to be brought before a court within 48 hours
S50 of the CPA must be read with s35(1)(d) of the Constitution. s50 contains fundamental right
that are entitled to freedom from arrest. It provides that if you are arrested with or without a
warrant the person must be brought as soon as possible to a police station or to any other place
mentioned in the warrant and there detained for a maximum period of 48 hours unless brought
before lower court and further detention is authorized by the court.
Must appear on court day when 48 hour period expires provided it is within court hours. If expires
on public holiday or weekend the must appear before end of next court day before 4 o’clock.
Powers of police to search, seize, arrest, to obtain evidence
Searches
Without warrant
The police official in terms of Section 22 of the Criminal Procedure Act of 1977 may without a
search warrant search any premises FOR THE PURPOSE OF SEIZING ANY ARTICLE referred
to in Section 20 (i.e. concerned in the commission or suspected commission of an offence, may
afford evidence thereof, or to be used in the commission of an offence) IF:
1. The person who may consent to the search of the premises consents to search and
seizure of the article in question
OR
2. (a) If he believes that on reasonable grounds a search warrant will be issued to him under
paragraph 21(l)(a) if he applies for such warrant
AND
(b) The delay in obtaining such warrant would defeat the object of the search.
Entering a premises for purposes for interrogating and obtaining a statement
Without a warrant
S26 empowers a police official in the investigation of an offence or alleged offence where he or
she reasonably suspects that a person who may furnish info with regard to such an offence is on
any premises. Such police official may without a warrant enter such premises for interrogating
such a person and obtaining a statement from him provided that police officer shall not enter any
private dwelling without the consent of the occupier.
A person is entitled to refuse a police official access to the premises in these circumstances in
terms of Section 26. Although he is entitled without a warrant to enter premises in the course of
investigation of an offence and if he suspects a person on the premises may furnish him with
information regarding the offence, he may only interrogate and obtain a statement from such
person (Namely James) if the occupier of the private dwelling (namely Mrs M) consents to his
entering the premises for this purpose.
,S27(1) deals with resistance against entry and search. It provides that the police official who is
lawfully entitled to search any person or premises may use such force as may reasonably be
necessary to overcome any resistance. They may break any door or window of such premises.
Before officials may use such techniques they must audibly demand admission to the premises and
notify the purpose for which they seek to enter the premises.
S27(2) provides that police officers are not required to audibly demand admission where the police
officer concerned is on reasonable grounds of the opinion that any article which is the subject of
the search may be destroyed or disposed of if the provisions of s27(1) are complied with e.g. with
drugs. This is known as the ‘no knock’ clause.
Ito s28(1) an unlawful search by a police official constitutes an offence and a compensation order
may be made against him.
Questioning of the accused
The accused is not obliged to answer questions. Suspects and accused have a fundamental right to
remain silent (Section 35 (1)(a) and Section 35 (3)(h) of the Constitution). He cannot however
refuse to be questioned but can only refuse to answer the questions.
His refusal to answer questions cannot be held against him at a later trial as his right to remain
silent is enshrined in the Constitution and the accused need not assist the State in any manner
whatsoever to prove his guilt.
The only information which he is obliged to give to the investigating officer is his name and
address - Section 41 of the CPA.
When will one advise a client to make a statement?
Under certain circumstances it is indeed advisable to make a statement, particularly when your
client intends pleading not guilty and has a feasible defence. It could be in his interest to place
same on record as soon as possible to exclude the subsequent argument of the Prosecutor of same
being a recent fabrication. Having a statement on record could also dissuade the prosecutor from
proceeding with the prosecution when he is obliged to weigh up the probabilities of a conviction.
Example: Jack Jones has the right to remain silent. He should advise the police-investigating
officer that he has consulted with his attorney and that he prefers not to make a statement at this
stage. He should further inform the officer that he elects to make a statement either to his attorney
or if so advised, only at trial. Also client should be advised that if he makes a statement, it could be
used against him at trial.
Securing the release of the accused and the necessary instructions required
Information to be obtained in initial telephone conversation
Usually from a relative
-Obtain information as to when the accused was arrested?
-Obtain information as to the name and telephone number of the investigating officer who had
arrested the accused,
,-The name of the unit to which the investigating officer is attached,
-The name of the police station or prison whereat the accused is detained,
-The facts and circumstances of the alleged offence,
-The personal particulars of the accused, including details as to his residential address, the duration
of his habitation thereat, details as to his employment, income, assets, previous criminal
convictions, evidence of good character, details of probability of conviction.
-Further information regarding his medical condition and information as to the amount of bail the
family would be able to raise.
From the investigating officer
-In which court will the accused appear or has he already appeared.
-Whether there will be an objection to any proposed bail application.
BAIL
After-hours bail
S50(6)(b) provides that there is no more after hours bail subject to two exceptions.
o S59(1)(a) It is only for certain minor offences that can get police bail (from a high
ranking officer)
▪ Police bail is for any offence that is not in Part II or II of Schedule 2 e.g.
theft under R2500, common assault, <115g of Dagga
o For more serious offences can get prosecutor bail.
❑ S59A deals with prosecutor bail
❑ It authorizes the DPP to authorize a prosecutor to release an accused on bail.
There are two important points.
❑ Only a prosecutor authorized by DPP, which in practice is all of them, can
release an accused. (prosecutor is often at police station)
❑ The prosecutor can only release after consultation with the investigating
officer.
▪ Prosecutor bail is for Schedule 7 offences e.g. public violence, CH, Assault
GBBH, bestiality
▪ Call the charge office and speak to the investigating officer. Ask whether
there is any objection to bail. Then contact the prosecutor. Inform him that
you want to bring a bail application after hours and tellhim about the attitude
of the investigating officer. Find out what time the magistrate will be
available to hear the application. Inform the investigating officer. Go to
court and bring the application.
o There are three new schedules i.e. 5,6,7
▪ Schedule 5 offences are more serious e.g. attempted murder, drugs > 50000,
syndicate fraud, murder, rape. For such offences there is no after hours bail.
▪ Schedule 6 is the most serious. It consists of aggravate versions of sch5
offences e.g. murder of a cop, murder of witness testifying against you, gang
rape, rape of a minor or retarded person. For such offences there is no after
hours bail.
, o Summary
▪ Schedule 2 (not parts I and II) – police bail
▪ Schedule 5 – no after hours bail
▪ Schedule 6 – no after hours bail
▪ Schedule 7 – prosecutor bail.
The prosecutor and police bail stands until the first court day and a court is empowered to either
extend bail, or if it deems it inappropriate to do so, to consider the application for bail by the
accused.
Onus
Although the decisions of the WLD in Attorney-General (WLD) v Van Heerden & Another 1994
(2) SACR 469 (W) and Ellish & Another v Attorney-General (WLD) 1994 (2) SACR 579 (W) are
to the effect that no onus properly so called, saddles either the State or the accused in a bail
application, Section 60(11) of the Criminal Procedure Act no 51 of 1977 (as amended), has
imposed an onus in certain cases. If the accused is charged with an offence referred to in Schedule
5 there is an onus on the accused to satisfy the Court that the interests of justice do not require his
detention in custody. For schedule 6 offences the accused must satisfy the court that exceptional
circumstance exist which permit his or her release. These applications must also be heard by a
regional court.
Schedule 5 includes the offence of murder involving the use of a dangerous weapon or firearm.
Assuming that the accused is charged with murder involving the use of a dangerous weapon or
firearm, he will indeed bear the onus to prove that he will appear at Court at the trial. If such is not
the case then, in terms of the aforementioned decisions, no onus will be placed on either the State
or on the accused.
Where the state does not opposed bail for a schedule 5 or 6 offence the prosecutor ito s60(2)(d) is
obliged to explain why not.
Facts of importance in a bail application
1. That the accused has a fixed residential address.
2. That the accused has a fixed residential address.
3. That the accused has fixed employment and the time period he has been employed
4. The character of the accused.
5. The nature of the crime.
6. The seriousness of the sentence which may be passed.
7. The probability of conviction – strength of state’s case
8. Accused’s ability to travel and to settle in a foreign country.
9. The time period the accused will spend in custody awaiting finalisation of his trial.
10. Evidence that he will not communication with state witnesses or is not able to do.
11. His or her financial status and the amount of bail which he will be able to pay.
12. Will release disturb public order or security or will safety of the accused be jeopardised.
Appeal against refusal to grant bail
Section 65(2) of the Criminal Procedure Act reads as follows:
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