CPR3701
ASSIGNMENT 2
SEMESTER 2 2020
QUESTION 1
1) Section 84(1) sets out the requirements with which a charge should
comply. It provides as follows: Subject to the provisions of this Act and of
any other law relating to any particular offence, a charge shall set forth the
relevant offence in such manner and with such particulars as to the time
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and place at which the offence is alleged to have been committed and the
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person, if any, against whom and the property, if any, in respect of which
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the offence is alleged to have been committed, as may be reasonably
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sufficient to inform the accused of the nature of the charge. 1
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Particulars that are furnished are: the name of the offence for which the
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accused is indicted (murder); all the elements of the crime murder (intention,
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unlawfulness, killing of another human being); the date on which and place
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where the offence was allegedly committed; and the person against whom the
offence was allegedly.2
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Section 86 provides as follows: (1) Where a charge is defective for the want of
any essential averment therein, or where there appears to be any variance
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between any averment in a charge and the evidence adduced in proof of such
averment, or where it appears that words or particulars that ought to have
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been inserted in the charge have been omitted there-from, or where any
words or particulars that ought to have been omitted from the charge have
been inserted therein, or where there is any other error in the charge, the
court may, at any time before judgement, if it considers that the making of the
relevant amendment will not prejudice the accused in his defence, order that
the charge, whether it discloses an offence or not, be amended, so far as it is
1 Section 84(1) of the Criminal Procedure Act 51 of 1977.
2
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, necessary, both in that part thereof where the defect, variance, omission,
insertion or error occurs and in any other part thereof which it may become
necessary to amend.3
Where a charge is defective for the want of an averment which is an essential
ingredient of the relevant offence, the defect shall, unless brought to the
notice of the court before judgement, be cured by evidence at the trial proving
the matter which should have been averred.4
2) Section 49 of the South African Criminal Procedure Act 51 of 1977,
provides police officers with legal justification to use force in carrying out
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arrests, and includes the rules governing the degree of force to be used,
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as well as the circumstances in which such force may be employed. If any
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arrestor attempts to arrest a suspect and the suspect resists the attempt,
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or flees, or resists the attempt and flees, when it is clear that an attempt to
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arrest him or her is being made, and the suspect cannot be arrested
without the use of force, the arrestor may, in order to effect the arrest, use
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such force as may be reasonably necessary and proportional in the
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circumstances to overcome the resistance or to prevent the suspect from
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fleeing but, in addition to the requirement that the force must be
reasonably necessary and proportional in the circumstances.5
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The person who is to be arrested (the suspect) must have committed an
offence. If the arrester is acting on a suspicion that the suspect has committed
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an offence, the suspicion must be a reasonable suspicion. In deciding this, the
test is objective, that is, the circumstances should be such that a reasonable
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person would also have concluded that the suspect has committed an
offence.6 The arrester must be lawfully entitled to arrest the suspect. The
person who arrests or attempts to arrest—with or without a warrant—must
have the power to arrest the suspect or to assist in his or her arrest for such
3 Section 86(1) of the Criminal Procedure Act 51 of 1977.
4 Section 88 of the Criminal Procedure Act 51 of 1977.
5 Section 49(2) of the South African Criminal Procedure Act 51 of 1977.
6 Nell 1967 (4) SA 489 (SWA), Purcell-Gilpin 1971 (3) SA 548 (RA).
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