Law of Criminal Procedure
271
Purpose of Criminal procedure
, 1. Provides a process that vindicats substantive criminal law goals. Procedural mechanisms must
determine substantive guilt reliably, authoritatively and in a manner that promotes the
criminal law sentencing objectives
2. Must provide a dispute resolution mechanism that allocates scarce resources efficiently and
that distributes power amongst state officials
3. Perform a legitimation function by resolving state-citizen disputes in a manner that
commands the communities' respect for the fairness of its processes as well as the reliability
of its outcomes
Criminal procedure can serve the above functions by articulating fair process norms that
attempt to validate the states exercise of coercive power over its citizens
Constitutional provisions especially those contained in the Bill of Rights form a dominant
source of criminal procedure
SA law (public and private à formal (adjectival) public law = law of evidence + criminal
procedure, substantive public law = criminal law
Criminal Procedure and the distinction between substantive and
adjectival law
Substantive law: legal rules determining the rights and duties of individuals and the state;
both private law and public law form part of substantive law. E.g., determines the prerequisite
for criminal liability (unlawfulness, fault) and prescribes elements of various specific crimes
(theft or murder). Attaches sanctions to breach of its prohibitions
Adjectival law: measures used to enforce the rules of substantive law. Puts substantive law
into action and makes it dynamic e.g., the Law of Evidence which works in tandem with
criminal procedure rules ensures that criminal law is not static
Criminal law procedural rules: Even though they are adjectival they cannot operate in
isolation from the common law and constitutional rights such as the right to life
Duties
Places duties and powers of courts on prosecutorial authority (NPA/state) - duties and powers
of the courts especially in a course of an investigation of a crime
NB the state/NPA prosecutes people while the court hears the case (not involved in the
prosecuting or investigating pf a crime)
Duties and powers of the police, rights of suspects and arrested/accused person, pre-trial
matters (e.g., bail, determining bodily features), course of the trial from the prosecution’s
duties, verdicts delivered, sentencing, post-trial remedies (appeal, review) and sets out
victims' rights
Criminal procedure is also a component of the larger criminal justice system, interact with the
law of evidence, sentencing, victimology, prisons. There must be firm and fair application of
these rules (applied equally and in line with the constitution)
Three phases of Crim Proc
1: Pre Trial phase: from the commission of the crime to court hearing system e.g., complaint,
arrest, investigation, and bail hearing
, 2. Trial phase: court hears the case, prosecution can present case, defence can present their
case, there will be a judgement and some kind of sentence if guilty (imprisonment, fines etc).
3. Appeal and review (post-conviction remedies)
NB: impact of constitution and protection of interests and rights of victims (often mere object
or witness; more participation in recent years)
Question: double functionality of CPA
o E.g., it regulated procedure but also operates as a ground of justification; tells people
how to arrest and when to arrest someone when they can search a house (procedure)
but if a random person handcuffs someone that is assault (serves as a ground of
justification for police)
o But if police officers don’t stay in boundaries of procedures, there are formal and
substantive consequences
Formal consequences: evidence may be excluded (e.g., did not obtain a
search warrant)
Substantive: victim may claim damages
Shashape v The Minister of Police WHC
o Illustrated that things need to be in line with CPA but there are also consequences
when things are not done properly
o The plaintiff had sued the Minister of Police for the sum of R100 000 for damages for
the unlawful and wrongful entry and search of the house by two members of SAPS
o This search and seizure were claimed to have been affected without her consent, as
would have been required under section 22(a) of the CPA, or without a warrant in
terms of section 25(1)(a) relating to State security, or without a warrant under section
21(1). It was further averred that the police officers did not have reasonable grounds
to believe that a warrant would have been granted to them if they had applied (s 22(b)
read with s 21(1)(a); and s 25(3) read with s 25(1)).
o Consequently, the unlawful entrance and search of the residence of the plaintiff
constituted a violation of her constitutional rights to dignity and privacy, which
caused the plaintiff to suffer harm in the amount of R100 000.
o The plaintiff left her home along with her group to record an album on 24 March
2018. No one remained in the house and the plaintiff requested her mother (who lived
directly behind her) to keep an eye on her house. This was because the two external
doors, as well as the kitchen door of the plaintiff’s house, were unable to lock. In the
kitchen were strips of beef hanging, “cut like biltong”
o While at the studio, the plaintiff’s brother (who lived with his mother behind the
plaintiff’s residence) phoned the plaintiff and informed her of police officers who had
arrived at her house. The plaintiff requested to speak to one of the officers, an
Inspector Phiricwane. Ms Shashape instructed the latter not to enter the house until
she arrived – and he replied that he had already done so and had found meat in her
kitchen relating to livestock that had been slaughtered and stolen at a nearby farm the
previous evening.
o They had effected this warrantless search based on an “anonymous tip”. After this
exchange, the plaintiff returned (with her children and the cultural group in tow) and
found all the doors that had been closed open and four police vehicles leaving the
, premises while two remained. There was also “a large number of curious onlookers in
her premises”.
o After relaying the information regarding the alleged slaughter and theft of the
livestock and the anonymous tip, the plaintiff indicated that she had no knowledge of
this incident and the meat she purchased was purchased at an abattoir. She could not
provide a receipt to the officers as she had bought the meat along with three others for
a total of R1 200 (she had contributed R300)
o The next day (25 March 2018), an officer from the Stock Theft Unit seized a strip of
beef so that it could be compared to the heads of the stolen livestock. The plaintiff
rebutted and queried how this could be done considering that the meat was already
dry, but the officer “informed her that he had his ways of doing so” and the plaintiff
never heard from him again. The plaintiff was never charged, arrested, or prosecuted
relating to the alleged stock theft and slaughter.
o The court accepted the plaintiff’s version of events and correctly found that the 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”
Crime Control model and Due Process model
Crime control model: Based on the proposition that the repression of criminal conduct is by
far the most important function to be performed by the criminal process- sacrifice, during
apartheid people would be thrown into jail without due process. The aim was repression of
crime
Due process model: whilst acknowledging the importance of effective criminal law
enforcement proceeds in a different premise. It is based on the principle that the primary
function or goal of the criminal justice system is not merely to secure conviction and sentence
but to ensure that such results are achieved in terms of rules which duly and properly
acknowledge the rights of an individual at every critical stage during the pre-arrest
investigation and pretrial, trial and trial proceedings. There is a greater focus on the process
and fairness of the trial. Crime control isn't the only aim, but we look at the suspects etc.
Place a limitation on state power on how it controls crime.
o The due process model gains greater momentum when assessed in the context of the
Bill of Rights which by its nature guarantees due process but also places important
limitations upon official power in order to protect fundamental rights and liberties
Most democratic systems have a mixture of the two. SA has strict rule ito of crime, but we
have rules on how to investigate a crime whilst respecting the criminal justice system
Too much of a crime control model would not be democratic if is too due process then we
can't control crime properly
Cannot subject people to criminal process because we do not know if they are guilty or not
Crim proc gives the government to investigate crime, but it also limits how this power is to be
exercised
SA is in the middle but there is a view that we are pro criminal, and the constitution protects
criminals - “constitution is pro-criminal”
o Alot of people can get released due to technicalities
Need to look at the historical context e.g., detention without trial
Both these models are not rivals, both models seek to vindicate the goals of substantive
criminal law, but they do so along different routes
