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CPR3701 Exam pack 2024(Questions and answers)
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,CHAPTER 1Introduction:
• Double function of crim proc law :
o Regulates procedure
o Operates as ground of justification in substantive law
Formal consequences: Evidence & witnesses can be excl. as admissible
evidence in case
Substantive consequences: owner/ tenant of property not entered with
warrant can issue civil claim against officers/ minister of police etc.)
• Stipulates formal rules
• Protects substantive interests
• SA law partially codified crim proc law is example of codified law
• Roots of SA crim procedure: Roman; Roman-Dutch & English Law
• Constitutional provisions form dominant source of crim procedure
• Definition: Crim Proc regulates duties & powers of crim courts, prosecutional authority &
police, rights of accused/ arrested/ suspected persons, procedural matters &
accommodates rights & interests of victims
Main purposes of crim proc law:
1. Provide process to deliver substantive crim law goals in a manner promoting crim law’s
sentencing objectives
2. Provide a dispute resolution mechanism that distributes power amongst state officials
3. Provide legitimation function in resolving state-citizen disputes
PROCESS OF CRIMINAL PROCEDURE NB
Pre-trial (crime/complaint/ arrest/ investigation/ bail)
Trial (hearing; judgement (possibility of discharge)) s v Dewani 2014 art 174 Appeal &
review Not compulsory but usually happens
In practice the above can be disrupted by processes: interdicts, postponements, applications etc.
, 2
2 models of crim proc law: crime control & due process.
• Public perception: constitution seen as pro-criminal(constitution on the criminal’s side) o
Constitution emphasizes rights of accused persons
• Historical context: procedure used as tool by apartheid gov. to enforce racist laws &
deprive people of basic crim process (e.g. detention w/o trial) o Crim proc was abused
to suppress & abuse people
Distinction between adjectival & substantive law:
• Substantive law:
o Legal rules determining individual rights & duties of individuals &
state o Present in private & public law o Substantive crim law:
Requirements for crim liability
Prescribes elements of specific crimes
Attaches consequences to crimes Adjectival law:
o provides measures to enforce rules of substantive law
puts substantive law into action o crim proc rules can’t, don’t & may
not operate w/o common law & constitutional rights (substantive law)
Scope & content of crim proc:
• crim procedure shouldn’t be viewed as a formalistic subject with rules o encompasses
norms, underlying principles, & interests that are protected.
o It can be viewed only as a process.
• Part of the crim justice system o Incl. crim proc, law of evidence, law governing
prisoners & prisons, substantive crim law & law of sentencing
o Common binding factor: deals with crime, its forms & its perpetrators o
Ensures firm & fair rule enforcement of substantive law in society’s interests
Broad & narrow crim procedural law:
• crim proc in the narrow sense:
o Concerned w course of process (pre-trial, trial, post-trial)
, • crim procedure in broad sense o Concerned w extradition, cooperation w international
courts/ tribunals etc.
• Minister of justice v additional magistrate Cape Town 2001.
Tension between Crime Control & Due Process
• NB: aren’t opposing models, most systems conform to combo, with more emphasis on 1.
• Crime control model :
o Packer: Most NB function of crim process: repression of crime
o Packer: power (especially state power) always subject to abuse SA
history has many examples of state power abuse (especially in apartheid) Due
process model :
o Ensures rules followed in accordance with rights of individual at every
stage.
o “Constitution is pro-criminal”?
e.g. Presumption of innocence, right to remain silent
emphasis on rights of accused, SA crim process is seen to be pro-criminal
Do we have unreasonable protection for suspects? Should constitution
be amended to make it easier for the state to prosecute?
• “Detention w/o trial”-Historical context o Crim proc can be abused so guarantees in
constitution shouldn’t be seen as procriminal
• INTERNAL TENSIONS:
o Innocent people are drawn into crim justice system especially during pre-trial
stage o liberty of the innocent shouldn’t be sacrificed to increase efficiency of crime
control
Increases probability of innocent people being convicted
Risk: acquitting guilty in favour of error prevention o If state
were given absolute power, society would be ruled under autocracy
If individual rights were absolute, state wouldn’t have power to
enforce law o Crim proc rules must regulate state power
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