My own notes from the lecturers, which have been integrated with the prescribed text book. Cases are also included and discussed. All work covered in semester 1 (up to and including chapter 10). I used these notes to study for both the test and exam and obtained 70+ percent.
- What is it? Machinery in which we enforce laws of substantive criminal law.
Procedural mechanisms must determine substantive guilt reliably, authoritatively and
in a manner which promotes the criminal laws sentencing objectives.
- Must provide a dispute resolution mechanism, which allocates scare resources
effectively and distributes power amongst state officials.
- Criminal procedure forms part of larger criminal justice system/ process
Substantive vs adjectival law
- Substantive law compromises of the legal rules which determine what the rights and
duties of individuals and state are etc. substantive criminal law determines
prerequisites for criminal liability (fault, intent) and prescribes elements of specific
crimes (theft, murder). Also attaches a sanction for breach of provisions. But mere
sanction is not enough, need measures to enforce the rules.
- Measures provided by adjectival law – puts substantive criminal law into action.
Rules of criminal procedure form part of adjectival law which assists in making
substantive criminal law dynamic (not static).
Scope (what it covers): criminal procedure regulates the…
- Duties and powers of prosecutorial authority
- Duties and powers of courts
- Duties and powers of police officers
- Rights of suspects and arrested and accused persons
- Pre-trial procedural matters e.g bail, charge sheets and indictments
- Course of the trial, especially trial rights and duties of the prosecution and the
defence; verdict; sentencing etc.
- Criminal procedure must also accommodate and protect the victim and their rights
3 phases of criminal procedure:
1. Pre-trial phase: before the trial starts (victim makes a complaint arrest
investigation bail)
2. Trial: court hears the case all the elements of the crime must be proven by the
state court makes judgment
3. Appeal and review (done by a court of high instance)
,Constitution is ever present in this process: constitutional rights and interests of victim and
suspect are present and must be protected
Double functionality of criminal procedure (two main functions):
- regulates procedure (how we conduct search and seizure) and operates as ground of
justification in substantive law (arrest is assault, but if acting in official capacity that is your
GoJ)
Example: police officer searches a person in terms of the provisions of criminal procedure,
which infringes a person’s interests in privacy. This is both a regular procedural action and a
lawful limitation of the suspects right to privacy.
If you do not operate in this way, there are formal and substantive consequences: an
unlawful search of property has formal (exclusion of evidence) and substantive (criminal
charge against officer or accused can claim for damages) consequences
4.1-5 prescribed article: Shashape case – S went to music practice and got a call police
were at her house. Received tip she stole meat, returned home and police seized the meat.
S suffered reputational harm – approached court to claim for damages for wrongful search.
Violation of right to privacy and dignity, no legal basis to search her house. Awarded
damages.
- damages for an unlawful search and seizure and unlawful entry of her premises -
violation of her constitutional rights to dignity and privacy
- warrantless search and seizure and no consent (she was not on premises)
- police did not have reasonable grounds to believe a warrant would have been
granted even if they had applied
- no reasonable grounds to believe that offences under the Drugs and Drug Trafficking
Act 140 of 1992 had been committed
- plaintiff was never charged, arrested, or prosecuted relating to the alleged stock theft
and slaughter
- search and seizure occurred outside of the framework of section 22 of the CPA and
the Minister of Police was “therefore wholly liable for the plaintiff’s damages”
- GoJ of consent – but none at all (from plaintiff or her family)
- Another GoJ: reasonable belief by the officers that they would have been granted a
warrant if they applied, and if the search was delayed would the objective of it be
thwarted (absent GoJ because it was an anonymous tip)
,Tension between crime control and due process models:
Chapter 1 - 2.1-2.3 textbook: the limits of the criminal sanction
- Crime control model: criminal justice system used to repress and control criminal
conduct (seen as the most important function).
- Due process model: acknowledges the importance of effective criminal law
enforcement but believes the primary function of the criminal justice system is to
ensure results are achieved in terms of rules which properly acknowledge the rights
of an accused during every stage of criminal justice process (pre-arrest, pre-trial, trial
and post-trial proceedings). Focuses on procedure, treatment of the accused and the
procedures/ investigation being affected properly. Person is still innocent before
conviction and must be treated so.
- Need to strike a balance: society needs a reliable and fair system where the guilty
are separated from the innocent – thus criminal procedure must seek to
accommodate and balance certain fundamental values.
In SA we follow both systems: tensions between the two
- These rules do not just apply to criminals, people who are innocent can also get
drawn into the system. The freedom of an innocent person should not be sacrificed to
increase efficiency of crime control. Do not want to risk acquitting the guilty.
- State can also not have absolute power, otherwise we would live under a tyranny.
- If individuals had absolute power, state would be powerless and unable to enforce
criminal law.
- Pursuit of the truth must be subject to fundamental rights (cannot accept unlawful
evidence in court etc)
Public perception in SA – the constitution is pro-criminal meaning we allow criminals to get
away with crimes. We must remember historical context, because in apartheid people
imprisoned without due process and there were no fair trial rights. These abuses were the
products of parliamentary supremacy. Now the constitution has to speak and bring the state
under the discipline of the rule of law.
Victims’ rights: restorative justice principles help reconciliation (found in child justice act)
Forms of victim participation:
- Plea and sentence agreements: victim must be asked about these before they are
entered but their opinion is not persuasive (if accused enters into a plea agreement
, e.g reduced sentence, victims do not want this thus they have to be consulted but
state does not have to follow their wishes)
- Compensation order: property related crimes
- Decision to prosecute: victim should be consulted in the decision to prosecute or not.
- Service charter for victims of crime in SA: victim has no absolute right to participate in
a criminal trial unless it is required as a witness.
- National instruction on sexual offences: victims of sexual offences must be informed
of rights to give victim impact statement (statement you make at sentencing phase
where you describe how crime has impacted your life and advocate for a harsher
sentence). Gives you the opportunity to say in your own words how crime has
affected you.
- Correctional services act and CPA: victim (or their relatives if deceased) should be
consulted if offender is considered for parole. Have the right to make representations.
- S 7 CPA - Private prosecution: state declines to prosecute a case then victim is
entitled to prosecute a crime privately (takes over the role of the prosecutor)
Witness and victim protection:
- Where accused goes to trial in high court, the charge must be accompanied by a list
of names and addresses of prosecution witnesses. Withholding of names and
address of witnesses if DPP believes the witness may be intimidated
- Testify in camera: if evidence shows it is likely harm may result to a witness, they can
testify behind closed doors, their identity will not be revealed for a period specified by
court.
- Testify via closed-circuit television (CCTV) or similar means (zoom) if likely to suffer
emotional strain or harm from testifying in person
- Intermediary person can be appointed if victim is below mental or physical age and
may suffer from undue mental stress if they testify. Need to observe a victim’s
response to the questions.
- SORMAA (sexual offences and related matters amendment act): creates a
framework for the adequate and effective protection for victims of sexual offences.
Chapter 5 for example sets out procedure to be followed to ensure compulsory HIV
testing of an alleged sex offender.
- Witness protection act and prevention of organised crime act (POCA): apply for this if
under threat by person or group of persons. Can be removed from residence for a
period of time.
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