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CPR3701 (COMBINED PREVIOUS TUT'S
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MY CPR3701 Previous Tut’s(i) Discuss the lodgement and service of indictments and charge sheets. Clearly state the difference
between the High Court and lower courts. (20)
The general rule, in line with the provision of section 32 (1) of the Constitution, is that 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.
This principle applies to various facets of the criminal process:
– Access to the content of the police docket or relevant parts thereof
The limitation on this principle was dealt with by the Constitutional Court in Shabalala v Attorney-General,
Transvaal, and Another; Gumede and Others v Attorney-General, Transvaal 1995 (2) SACR 761 (CC).
In this case, the court gave direction as to the factors and principles that could influence the decision by the
prosecution or the court (where relief is sought from the court against the State‘s denial of access) as to whether
the accused should be allowed or denied access –
- to be informed of the allegations
- to prepare its own case sufficiently
- to properly exercise its rights to adduce and challenge evidence. 4
In the High Court In the lower court
- The DPP lodges an indictment with the - Proceedings in the lower court commence
registrar of the High Court by lodging a charge sheet with the clerk of the
- Sets out date & place at which crime was court
allegedly committed - The charge sheet is not served on the
- Certain personal particulars of the accused accused but presented in court
(s 144(1)(2) CPA) - The accused may in terms of section 80 of
- Summary of the salient facts of the case the CPA examine it at any stage of the
(where no preparatory examination was held) relevant criminal proceedings
- List of names and addresses of witnesses to - The accused is normally brought to court
be called by the prosecution must be through arrest or on written notice or by
supplied, except where the DPP is of the summons
opinion that such witnesses may be tampered - Through written notice or under arrest an
with or intimidated (s144(3) CPA) accused may be required to appear upon very
- Indictment served on the accused in short notice
accordance with the rules of the court - In terms of section 54 of the CPA, where a
- The service of the indictment and notice of summons is served it must take place at least
trial must take place at least ten days before 14 days before the trial date, again Sundays
the date appointed for the trial. The ten days and public holidays excluded
exclude Sundays and public holidays
(ii) Discuss statutory plea bargaining in terms of section 105A of the CPA and indicate the main
difference between statutory plea bargaining and traditional plea bargaining. (20)
In Armugga 2005 (2) SACR 259 (N) the court defined plea bargaining as – ―the procedure whereby the accused
relinquishes his right to go to trial in exchange for a reduction in sentence. The system involves bargaining on
both sides, the accused bargaining away his right to go to trial, in exchange for a reduced sentence and the
prosecutor bargaining away the possibility of a conviction in exchange for a punishment which he feels would be
,retributively just and cost the least in terms of the allocation of resources. In the process of bargaining, numerous
assumptions are made and mistakes are bound to happen. The fact that the assumptions turn out to be false
does not entitle such a party to resile from the agreement.‖ (see par 265) .
Traditional plea bargaining Statutory plea bargaining – section 105A of
the CPA
Not so formal agreement between accused and Formal agreement between prosecutor and
prosecutor. accused where sentence can be fixed.
The accused pleads to a lesser charge, or on a The entire agreement must be in writing and the
different basis to the charge alleged by the state, or public prosecutor must be authorised in writing to
where one accused pleads guilty in return for the act.
withdrawal of charges against co-accused. The accused must be represented – unrepresented
An accused may also undertake to supply vital accused cannot enter into 105A agreements.
information to the investigating officer, which The presiding officer MAY NOT take part in the
expedites and is necessary for the proper negotiation process.
investigation of the case, on the understanding that The agreement must be entered into before
the accused will not be prosecuted. pleading.
The prosecutor and accused cannot bind the court It is a once-off agreement and, if not accepted by
to a sentence, but the state can recommend a the court, the parties cannot renegotiate on the
particular sentence to the court. The state is held to same facts.
its agreement or rather plea bargain it has made. In court, the public prosecutor presents the
agreement and, if the court agrees, it proceeds to
sentencing. If the court considers the agreed upon
sentence just, it will then convict the accused and
impose sentence.
If the court disagrees with the sentence, the parties
can agree to remain bound to the agreement and
accept the court‘s sentence or, one/both parties
withdraw(s) and the trial starts de novo.
Nothing stops traditional plea bargaining between
the parties once the trial starts de novo, but 105A
proceedings are prohibited and the content of any
previous 105A agreement is inadmissible although
the accused can consent to the admission of all or
certain of the admissions made in the previous
agreement.
(iii) The principle of open justice is guaranteed by section 35(3)(c) of the Constitution. There are,
however, exceptions to the rule requiring that a trial be held in a public arena. Discuss these exceptions
with reference to case law and the provisions of the CPA and the CJA. (20)
Section 35(3)(c) of the Constitution provides that –
(3) Every accused person has a right to a fair trial, which includes the right -
(c) to a public trial before an ordinary court
CPA -
In terms of section 153(1), all courts are empowered to exclude the public whenever it appears to be in the interests of
the security of the State or good order, or public morals, or the administration of justice.
In terms of section 153(2), the court may order that a witness testify behind closed doors if it feels that there is a
likelihood of the witness coming to harm as a result of testifying.
A court may mero motu or on application by the prosecutor order that a witness or an accused, with his consent, give
evidence by means of a closed-circuit television or similar electronic media, but only if any of these facilities are readily
available or obtainable – section 158(2)–(3)
Section 153(3) provides for the exclusion of the public at the request of a complainant, where an accused is charged with
committing or attempting to commit any sexual offence as contemplated in section 1 of the Criminal Law ( Sexual Offences
and Related Matters) Amendment Act 32 of 2007, towards any other person, or extortion (either at common law or in terms
of a statute).
In terms of section 153 (3A), any person whose presence is not necessary at criminal proceedings concerning the
offences mentioned in section 153(3), shall not be admitted at such proceedings whilst the person towards whom the offence
has been committed is giving evidence.
,In terms of sections 153(5) and (6), persons under the age of 18 years are not entitled to attend any criminal trial unless
they are actually giving evidence (in which case the court may be cleared of all members of the public) or unless they are
authorised to be present.
CJA -
Section 63(5) of the Child Justice Act 75 of 2008 must be read together with section 153(1) of the Criminal Procedure
Act. Section 63(5) provides that no person may be present at any sitting of a child justice court unless his or her presence is
necessary in connection with the proceedings of such court, or the presiding officer has granted him or her permission to be
present.
Relevant case law:
Khumalo and Others v Holomisa 2002 (5) SA 401 (CC)
South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC)
Media 24 Ltd and Others v National Prosecuting Authority and Others (Media Monitoring Africa as Amicus Curiae); In Re:
S v Mahlangu and Another 2011 (2) SACR 321 (GNP)
Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another; In Re: S v Pistorius, In Re:
Media 24 Limited and Others v Director of Public Prosecutions North Gauteng and Others (10193/2014) [2014] ZAGPPHC
37 (25 February 2014)
CMP3701/201
7
, (iv) Discuss the discharge of accused at the end of the state case in terms of section 174 of the Criminal
Procedure Act 51 of 1977. Refer to case law. (20)
Section 174 of the CPA provides –
―If, at close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the
accused committed the offence referred to in the charge or any offence of which he may be convicted on the
charge, it may return a verdict of not guilty.‖
The acquittal of the accused in terms of section 174 is generally known within the South African criminal
procedural system as the ―discharge of accused at the end of the state‘s case‖.
In S v Dewani, the court pronounced that ―no evidence‖ does not mean no evidence at all, but rather no evidence
on which a reasonable court, acting carefully, might convict. The court further indicated that the question whether
a court should grant a discharge at close of state case is one which entails a discretion by the trial court and such
discretion must self-evidently be exercised judicially.
In S v Mphetha & Others, it was held that the credibility of state witnesses should play a limited role, and that
their evidence should only be ignored where the quality is so poor that no reasonable person would accept it.
- A discharge in terms of section174 cannot be considered once the defence has commenced the presentation of
its case.
- An accused with more than one charge may be discharged in respect of one or some or all of the charges
against him.
- A court should, where appropriate, of its own accord raise the question of a discharge, whether the accused has
legal representation or not.
- A court refusal to apply section 174 is not appealable. This was also confirmed by the court in S v Ebrahim.
The test for discharge:
Distinction between the pre-constitutional era and in the constitutional era.
In the pre-constitutional era, the so-called ―Schuping‖ test in terms of S v Schuping was followed.
In this case it was held that:
―at the close of the state case, when discharge is considered, the following two questions must be considered –
(i) Is there evidence on which a reasonable man might convict? If not,
(ii) Is there a reasonable possibility that the defence evidence might supplement the state case?
If the answer to either question is yes, there should be no discharge and the accused should be placed on his
defence.‖ 8
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