CPR3701 - Criminal Procedure Assignment 2 2022. Question 1
1. As per Section 84(1) of the CPA, a charge should set out the relevant offence in such
a manner and with particulars such as the time and place where the offence is alleged
to have been committed and the person, against whom and the pr...
1. As per Section 84(1) of the CPA, a charge should set out the relevant offence in such
a manner and with particulars such as the time and place where the offence is alleged
to have been committed and the person, against whom and the property, in respect of
which the offence is alleged to have been committed, which may be reasonably
sufficient to inform the accused of the nature of the charge.1 The offence should be set
out in the charge in such a manner that the accused is sufficiently informed of the nature
of the charge brought against him. Adequate particulars are required in the charge such
as the time and place where the offence is alleged to have been committed, the person
against whom and the property in respect of which the offence is alleged to have been
committed. Regarding the crime of murder, the offence committed should be mentioned
in the charge, including the elements of the crime, the time and place in which the crime
was committed. As per the common law offences, the offence must be described in
clear legal terms, and if legal appellation for the offence exists, it must be set out by
such appellation, or otherwise it should be strictly and accurately described.2
Mentioning of time in the charge, is only essential if it is of essence, however when time
is not relevant the charge is not deficient. The place where the crime was committed
may also be of importance to the charge. In certain cases failure to mention the place
will render the charge defective. Similarly, mental attitude of the accused must be set
out clearly in the charge, for instance when the accused is charged with murder it must
be declared that the accused acted with intention and unlawfully or the accused acted
negligently and unlawfully when the charge is that of culpable homicide. Since the
prosecutor failed to mention the time and place of the committed crime, the charge
formulation is insufficient.
The charge should state a defence. In a situation where the charge does not disclose
and offence, the trial is not worthless, and a conviction can be secured using the
provisions of Section 86 (1) or 88 of the CPA. 3 Before 1959, the court required that a
charge sheet disclose an offence and, in the absence, thereof the accused could not
be found guilty. The fact that a charge sheet can be amended should not however be
an excuse for badly drafted charge sheets, therfore incorrect material facts which
because prejudice can still render a trial abortive. Proof may be given that the act or
offence in question was given three months before or after the day or period stated in
1
Section 84(1) of the CPA
2
Neumann 1949 (3) SA 1238
3
Section 86 (1) or 88 of the CPA
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