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TLI4801 EXAM PACK2024
QUESTIONS AND
ANSWERS
FOR ASSISTANCE CONTACT
EMAIL:gabrielmusyoka940@gmail.com
, CHAPTER 19
Criminal Cases
R evised by Johann Enp,elbrecht SC
(Member of tile Pretoria Bm)
19.1 AN INTRODUCTION TO CRIME
n. em cm bc r th at in a crimin al trial the o dd s arc aga inst yo u , th at yo u arc a foo l and
yo ur cl ient is a rogue . 1
Thi s m ay have been the position wh en this pun ge nt advice was pe nn ed. With
the new dispen sa tion in So uth Africa cam e th e C o nstitution. 2 Sec ti o n 35 no w
co nfers certain ina li e nabl e ri ghts on any pers on arr ested or de tain ed and ensures
a fair trial for every accu sed .3 To ens ur e a fair trial, pr esidin g officers in criminal
trials mu st ens ur e th at all co nstitution al rights w ere ri gi dl y a dh ered to during
the inv estigatio n stage, at th e tim e of th e arrest, durin g detenti on a nd durin g
th e tria l. In general, th e blank et l egal professional pri v il ege that attached to th e
cont ents of th e police d oc ket made way for th e right of th e acc used to ask for
discov ery o f all th e stateme nts in th e poli ce do cket as w ell as th e do cum entary
evidence on w hi ch th e state relies, providin g a mo st use ful we apon in th e hands
of th e cro ss- examin er: in con siste nc ies or co ntr adictio ns be tw een th e stateme nt
made to th e in vestigator and th e evidence of the witn ess durin g th e actual tri al
can now be r eadily expo sed. On th e oth er hand , it mu st be reme mber ed th at
police e ffi ciency h as increa ed. So too has science. So too , vario us ame ndm ents
to th e C riminal Proce dur e Act 51 of 1 977 (th e Act) have made it m ost difficult
to take adva ntage of th e tec hni cal defects th at co uld oft tim es be found to
invalidate a s umm o ns, charge or indi ctm ent and so to nullify a c onviction. Last,
and by no m ea ns least, the inge nuity of a ge ne ration o f our pr ede cessors h as
taug ht pro sec ut ors a tec hniqu e o f effi ciency that n"light have be en lac king in
past days.
Perh ap too many guilty pe opl e are acquitt ed for all I know . Pe rh ap s,
mor eo ver, it neve r happens that inno ce nt peop le are c onvi cted. Perhaps all
inv estiga ting o ffi cers a nd all public pr osec ut o rs scrupu lou sly perform. th eir duty
o f placin g befo re th e co urt alJ availa ble ev idence, ev en if it assists th e accu ed.
Perhaps it has never happ ened that an in vestigatin g offic er o r a public
prosec ut o r has coached and rehearsed a state witn ess. All th ese thin gs re main
matters of sheer specula ti on. All that I can say with any d egree of ce rtain ty, is
th at as th e war be tw een c rimin als and society bec om es m ore int ense, bo th sid es
1 From 111r Firs/ Forty Years by H H Morris KC. All other quora ri om in this chapter, whe re not
ot herwise specif 1cJ, are fi·om thf' same book .
2 Constit utio n or th e Repub lic of South Afi·ica. 19%.
-' S" .Z 11111<1 1995 (2) SA 642 (CC) , 1995( 1) SACR 568 (CC).
3-+7
,348 Technique in Litigation
tend to extren1.es. If your client is innoc ent it will require all your ability to
secure an acquittal, for s01ne very capable people will believe the opposite and
will be working to s ecure a conviction. They will be working, moreover, in a
procedural system which is con stantly being refined to aid them in their task.
The procedure at a sun1.mary trial is now stipulated ins 115 of the Act which
requires the judicial officer, if the accused pleads not guilty, to ask hin1. if he
wishes to 1nake a statement indicating the basis of his defence. If the accused
does not make such a state1nent, or if he tnakes a statement that requires
clariftcation, the court 1nay then put questions to the accused in order to
ascertain the basis of his defence. If the explanation contains admissions, these
adn1.issions may then be recorded, with the consent of the accused, as fon11.al
admissions in terms of s 220 of the Act. Such adnussions provide sufficient
proof of the facts adnutted and the state need not prove those facts. 4 Section 115
does not remove the right of the accused to renuin silent during the plea stage
of the trial. As far as the legal 'adviser' is concerned he n1.ay reply on behalf of the
accused, who n1.ust then be asked whether he confinns what has been stated on
his behalf.
The object of these provisions is obviously to expedite the proceedings, and
to dispense in son1.e cases with witnesses whose evidence would not be
disputed. Fron1. the point of view of the state the business of the prosecution is
facilitated; fron1. the point of view of the accused the advantages of the section
may be regarded as dubious-probably from the point of view of the
prosecution and the den1.ands ofjustice, the procedure is to be recon1.n1.ended.
To obtain an acquittal in a cri1ninal case you yourself must be a master of
every branch of technique- or just plain lucky. You will have been taught that
in our law, an accused person is presumed to be innocent until he is proved to
be guilty. At the back of your nund n1.ay lurk a belief that this contrasts n1.ost
equitably with the law of France where an accused n1.ust prove his innocence
- and Devil's I land take the hindmost. In practice you 1nay son1.etimes
wonder in frustration whether you have confused the two systen1.s. When you
think this, however , it is ti1ne to take a long hard look, not at the systen1. of
justice in SouthAfiica, for all its fault , but at your client or, perhaps, at yourself
Courts err. Appeal courts err, too. Son1.etin1.es,however, the court does not err.
Not every accused person is a Dreyfus. 5 On the laws of chance alone you nught
expect a conviction in SO per cent of your crinunal defences. But these laws do
not apply, for reasons already suggested. If you are engaged in a gan1.e, which is
open to 01ne doubt , it is a gan1.e of skill- about the 'chance' aspect there will
be son1.e 1nention tnade later. So your client's conviction may be due to the
4 S v Seleke 1980 (3) SA 745 (A) 754G .
5
Ca ptain Alfred Dr eyfu s w as a French oldier w ho was court-martia lled in France in the 1890s
for allege dl y selling military secrets to German y. Fo und guilty a nd sentenced to life imprisonm ent on
the notorious D evil's Isla nd penal colony in French Guian a, his un fair trial and c onvi ction - whi ch
many felt w as spurr ed by anti- semitism - became a cause cele bre. Th e real spy is now genera lly
considered to have been one Esterhazy.
, Cri111iua/ Cases 349
plain simpl e exigenci es of th e case or, in a few cases, to th e lack of skill of his
co un sel or attorn ey. Wh ence, then , sprin gs your sense of fi·ustrati o n::> The
answer becomes m y first propo sition.
C rimin al law invol ves person s, emotion s and tragic co nsequ ences. Without.
a feeling for tho se factors yo u will do l ess th an yo ur b est. Althou gh yo u sho uld
realise th ese hum anis ti c aspects a nd co ndu ct your case wit h th eir realisa tion ,
you mu st at the same tim e preserve a d eg ree of de tachm ent that wi ll leave yo ur
jud gm en t keen and uncloud ed.
Do not make y our cl ient 's case your own . If you do, yo u h:lVe to hand le two bad
cases. H e has bought your services and not yo ur emotio ns.
As you proceed on a career in vo lving the defence of persons charged with
crim e yo u will beco me painfully conscious of o ne of the characte ristics of
clie nts. By th e tim e they beco me clients th ey do not need an a dvoc ate but a
necro mancer. They wi ll usually have killed th eir defence stone co ld dead. You
w ill dem olish witn esses and wa it in keen anti cipation for th e magi c wo rds to
float through th e co urt: 'Not guilty.' But fin ally th ere is th e evidence o f the
investigating o ffi cer who co nfides to th e co urt th at yo ur clie nt has indul ged in
a few statem e nts and ex pl anati o ns that mak e you r fl esh creep. M any yea rs ago,
in a mom ent of frankn ess, a detec tive once co nfided to c oun sel that the po lice
mi ght 'vo lu nteer ' a little evidence if th ey kn ew th e accused w as guil ty and th ey
co uldn 't qu ite p rove it. But th at was many yea rs ago and, a fter a successi on o f
cases where th e accused do es not di sput e th e statem.e nts ascribed to him , yo u
w ill rea lise that th e tongue is the mo st powerful w ea pon in th e fight against
cnm e.
[n this lies my seco nd propo sition. Anythin g that yo ur client ca n do , you ca n
do better. Jn argum e nt there is not mu ch da nger arising fi·om co un sel's oral
indi scre tions. At all o ther stages of th e case you must we igh yo ur word s as th ough
they were gold - w heth er you are cross-examin ing a wit ness, obj ecting to
evidence or ma kin g an appli cation. Th e less you say th e less you may e rr.
M y th ird propo sition is mor e conso lin g. Previo usly, dea lin g with civi l
litiga tion, we suggested th at so meone waits to take advantage of any mistake
that you m ay make . In c rimin al law, Sllbject to th e sec ond propo siti on I have
stated, it is yo ur turn to wait for mi stak es. When yo u find on e take th e sa me
advantag e of it th at others wou ld take of yo urs. Bewar e, however, of
im.petuo sity. If you s how yo ur hand t oo soon the m istake m ay be r ect ified . It is
only ex pe ri ence, and a thorough know ledge of th e l aw and rul es of evidence,
that w ill enable yo u to detect the mistake w hen it occ urs. Many am e ndm ents to
th e law result from th e tact that co un sel kn ew a mistake when he saw o ne and
bided hi time before capitalis ing o n it. One exa mpl e wa s, in a n egligent
drivin g ca e, where the pro secution tailed to prove that th e offence was
comrnitt ed on a public road. 6 Th e law re port s and the biographies of successful
coun sel will disclose oth ers. Thi s is th e element of' chance' of w hi ch I spok e earlier.
1' S 11f-1 1988 (3) SA 545 (A) and S v Kr11ger m a11rlrre 1989 (1) SA 785 (A).
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