Criminal Procedure
5th February 2019
Textbook notes:
❖ The sections in the CRSA which are applicable to criminal procedure are s7, 8 (application of the
BOR), 8(2), 35 (rights of arrested, accused and detained persons), 36 (limitation clause), 37 (states
of emergency), 38 (enforcement of rights) and s39 (interpretations clause).
Para 1.1
❖ Substantive law: Legal rules determining the rights and duties of individuals and the state,
incorporates private and public law.
❖ Substantive criminal law determines the prerequisites for criminal liability and prescribes the
elements of various crimes.
➢ Also attaches a sanction to breach of its prohibitions.
➢ Measures are necessary to enforce the rules of substantive law and this is provided by
adjectival law.
❖ The rules of criminal procedure form part of adjectival law.
➢ The law of evidence operates in tandem with criminal procedure rules.
Para 1.2.1
❖ Criminal procedure regulates the duties and powers of the criminal courts and prosecutorial
authority; the duties and powers of the police esp during investigation; the rights of suspects,
arrested and accused persons; pre-trial procedural matters; bail, charge sheets and indictments;
pleadings; the course of the criminal trial, and esp the trial rights and duties of the prosecution and
the defence; verdict; sentencing; post-trial remedies and executive action.
❖ Criminal procedure also accommodates and protects the rights of victims.
Para 2.1
❖ There is a constant need to strike a balance between the interest of society in effective criminal law
enforcement and the interest of society in the protection of rights and freedoms of all individuals
suspected of, arrested for, charged with, convicted of and sentenced for crime.
❖ Crime control model:
➢ The repression of criminal conduct is the most important function of the criminal process.
❖ Due process model:
➢ Based on the principle that the primary goal of a criminal justice system is not merely to
secure a conviction and sentence, but to ensure that such results are achieved ito rules
which duly acknowledge the rights of an individual at every stage during the pre-arrest
investigation and pre-trial, trial and post-trial proceedings.
➢ This model gained momentum in the context of the BOR.
❖ The 2 models represent value systems.
➢ No real life system conforms exactly to one specific model.
➢ It is a matter of securing an appropriate balance even when interpreting constitutional
provisions.
➢ A balance must be achieved between the 2 models.
Para 2.2 - Tensions
❖ One cannot create strict criminal procedural rules on the assumption that these rules will only be
applied to criminals.
➢ The system must allow for the fact that innocent people can also get drawn into the system,
esp during the pre-trial investigative phase of the criminal process.
❖ A rule or procedure should be opposed if it secures greater crime control br increasing the
probability that innocent persons will be convicted.
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, ❖ If the state were to have absolute powers, it would be able to curb criminality substantially but
society would under tyranny.
➢ If the rights of individuals were absolute, the state would be powerless and unable to enforce
criminal law.
❖ Criminal procedural rules must regulate state power (police power) in a negative and positive sense.
➢ Eg. the police must have the power to arrest but the circumstances and manner under which
they do so should be restricted to protect fundamental rights.
❖ A balance always needs to be struck between the rights of the accused and the rights of the victim.
❖ A court, in pursuit of factual guilt, could admit reliable and incriminating evidence despite the fact
that such evidence was obtained by the state in breach of the fundamental rights of the accused.
➢ s35(5) can be invoked to exclude evidence unconstitutionally obtained from any person, not
only from the accused.
Para 2.3
❖ The criminal law not only sets limits on what individuals can do to one another but also limits what
the authorities can do to suspects and accused persons.
❖ A system weighted in favour of due process does not ignore the rights of victims but merely seeks to
ensure that the vindication of the rights of the victim should not lead to further injustices.
❖ Dual purpose: At times it is necessary to accept that certain measures to establish the truth and
combat crime must, in the best interest of society, not be employed.
➢ Few people would condone using forms of torture to coerce confessions from suspected
criminals or would agree that citizens should be strip-searched at the whim of a police officer
- limits must be placed on fact-finding initiatives.
➢ Safeguarding individual freedoms, checking abuses of power by law enforcement officials
and preserving basic fairness in government-citizens interactions are also important goals of
the law of criminal procedure.
❖ Due process demands that there must be practical limitations on state power in the detection,
investigation, prosecution, and punishment of crime.
➢ These abuses were the product of parliamentary sovereignty.
2.5
❖ The role of the victim is in principle confined to that of ordinary witness called upon to testify on the
question concerning guilt or innocence and if there is a conviction, the question of sentencing.
❖ The system is offender-orientated to the detriment of the rights and interests of the victim.
❖ The system lacks adequate victim support strategies like the protection of victims from secondary
trauma that results from repeated and improper pre-trial police questioning.
❖ The victim support measures in place are uncoordinated, limited and under utilised.
❖ Victims feel alienated from the process and this is exacerbated by factors like repeated remands
granted by the court at the request of the defence or the prosecutor; inadequate pre-trial
communication with victims etc.
Para 2.5.1
❖ s105A(1)(b)(iii): The prosecutor may enter into an agreement after affording the complainant or his
representative, where it is reasonable to do so and taking into account the nature of and
circumstances relating to the offence and the interests of the complainant, the opportunity to make
representations to the prosecutor regarding-
(aa) the contents of the (plea and sentence) agreement; and
(bb) the inclusion in the agreement of a condition relating to compensation or the rendering to the
complainant of some specific benefit or service in lieu of compensation for damage or pecuniary loss.
❖ s300 of the CPA: Court may award compensation where offence causes damage to or loss of
property.
❖ Complainants have the right to make representations with regard to a convicted persons placement
on parole, on day parole or under correctional supervision.
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, ❖ The institution of a private prosecution can also be viewed as a form of victim participation.
Para 2.5.2: Victim protection
❖ If the DPP is of the opinion that a specific witness may be intimidated, the name and address of the
witness may be withheld.
❖ If it appears to the court that there is a likelihood that harm may result to a witness, the court may
direct that the witness testify behind closed doors and that his identity will not be revealed.
❖ A court may order that a witness testify by means of a closed circuit television if it appears that
prejudice or harm might result if he testifies at the proceedings.
❖ A court may appoint an intermediary if it appears to the court that the criminal proceedings would
expose a witness under 18 years to undue mental stress.
❖ The Criminal Law Amendment Act creates a framework for the protection of victims of sexual
offences.
❖ Witness Protection Act.
3.1 Constitutional criminal procedure: Introductory remarks
❖ The CRSA or the BOR is not self-executing or self-explanatory; they have to be interpreted
authoritatively - the principle of justiciability.
❖ The CRSA is to be interpreted so as to give clear expression to the values it seeks to nurture.
❖ Constitutional criminal procedural provisions are usually stated negatively ie they limit state power,
prohibiting the state from infringing certain fundamental rights.
❖ Constitutional criminal procedural provisions (in the BOR) also place limitations on democracy ie if
the BOR forbids torture, it will remain illegal even if a majority of the people want it legitimised.
3.2 A survey of the contents of the BOR:
❖ Section 7: The BOR is the cornerstone of democracy.
❖ Section 8: Application of the BOR.
❖ Section 9-35: Fundamental rights.
❖ Section 36: Limitations clause - entrenched rights may be limited by law only to the extent that such
limitation is reasonable and justifiable in an open and democratic society based on human dignity,
equality and freedom, taking the following factors into account:
➢ The nature of the right;
➢ The importance of the purpose of the limitation;
➢ The nature and extent of the limitation;
➢ The relation between the limitation and its purpose; and
➢ Less restrictive means to achieve the purpose.
❖ Section 37: Derogation from the BOR following the declaration of a state of emergency - only to the
extent that the derogation is strictly required by the state of emergency.
❖ Section 38: Lists those who have locus standi in constitutional litigation where fundamental rights
have allegedly been violated or threatened.
❖ Section 39: Interpretation of the BOR.
3.3 Section 35 of the CRSA:
❖ Veldman confirmed that the right to a fair trial embraces more than what is contained in the list of
specific rights in s35(3)(a)-(o) of the CRSA.
❖ The right to a fair trial requires that criminal trials be conducted according to basic fairness and
justice and it is the duty of criminal courts to give content to these notions.
3.4 The presumption of innocence:
❖ Criminal procedure does not deal with the detection, investigation and prosecution of criminals, but
of suspects and accused persons.
❖ Suspect: Person who has not yet been charged.
❖ Accused: Has been charged.
3.4.1 The presumption of innocence and legal guilt
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, ❖ Due to the presumption of innocence, every person is regarded as innocent until properly convicted
by a court of law.
❖ ‘Properly’ involves compliance with the rules of evidence and criminal procedure.
❖ A conviction is an objective and impartial official pronouncement that a person has been proved
legally guilty by the state in a properly conducted trial according to the principles of legality.
❖ A person may be factually and morally guilty to the public but that does not mean he will or can be
proved to be legally guilty.
4 Accusatorial and inquisitorial procedures
❖ The essential difference between the accusatorial and inquisitorial models lies in the functions of the
parties ie the judicial officer, the prosecution and the defence.
❖ Inquisitorial:
➢ The judge is the master of the proceedings (dominus litus) and she actively conducts and
even controls the search for the truth by dominating the questioning of witnesses and the
accused.
➢ After arrest, the accused is questioned primarily by the investigating judge, not by the police.
➢ During trial, questioning is also done by the judge, not the prosecution or the defence.
❖ Accusatorial (also called adversarial):
➢ The judge is in the role of detached umpire.
➢ The police are the primary investigative force, they hand over the collective evidence in file
format to the prosecutor who becomes the dominus litus; the prosecution decides on the
appropriate charges and the appropriate court.
➢ In court, the trial takes the form of a contest between 2 theoretically equal parties who do the
questioning, leading their own witnesses and cross-examining the opponents witnesses.
➢ The accusatorial system can only function effectively if the prosecution and defence perform
their duties properly.
❖ SA criminal procedure is accusatorial but in certain circumstances, a judge may call witness of his
own.
➢ The procedure of questioning that may take place under s115 (plea of not guilty) contains
inquisitorial elements and so does s112 (questioning pursuant to a plea of guilty).
➢ The fact that the accused can be found guilty solely on his plea of guilty without the judge
doing any questioning to investigate the truth is a strong accusatorial element, even though it
can only happen in minor offences.
❖ Modern Western European systems are inquisitorial.
❖ Accusatorial: If the court has reasonable doubt whether any element of an offence has been
adequately proved by the prosecution, the accused will be acquitted; the accused has the right to
silence and no adverse inferences may be drawn from the exercise of that right; evidence
wrongfully obtained is inadmissible.
❖ Not all accusatorial systems are necessarily also due process systems.
❖ Modern SA criminal procedure has shifted towards the due process model because of the new
constitutional order.
5.1 The CRSA as a source of criminal procedure
❖ The CRSA governs the criminal procedural system.
❖ The CRSA does not deny the existence of statutory or common law rights which are consistent with
the BOR.
❖ Apart from the constitutional rights that can be applied directly, criminal justice will continue to be
administered ito statutory and common law rules of criminal procedure.
➢ The constitutional standards serve as a safety net and an interpretive norm.
5.2 The CPA:
❖ Regulates the day-to-day mechanics of the system and contains provisions which give practical
effect and meaning to the rights contained in the BOR.
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