Exam (elaborations)
CPR3701 EXAM 15 OCTOBER 2024
- Course
- CRIMINAL PROCEDURE
- Institution
- University Of South Africa (Unisa)
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MODULE CODE: CRIMINAL PROCEDUREEXAM DATE: 15 OCTOBER 2024
Section 1
1.1 The accuracy or otherwise of the prosecutor’s view in this regard. To determine
the accuracy of the prosecutor's view that the case against C should be heard in
the district court, we must consider the nature of the charge. In many
jurisdictions, serious offenses like murder are typically tried in higher courts (such
as a regional or high court) due to their severity and the potential penalties
involved. In South Africa, for instance, murder is a serious crime that usually falls
under the jurisdiction of a High Court, especially if the accused faces a long
prison sentence or if certain aggravating factors are present. District courts
generally handle less serious offenses or those that carry lower sentences.
Therefore, unless there are specific provisions allowing a lower court to handle a
murder case, it is likely that the prosecutor's view is inaccurate, and the case
should be referred to a higher court.
1.2 Under the South African Criminal Procedure Act 51 of 1977, the concept of
private prosecution allows certain individuals to institute legal proceedings in
cases where the Director of Public Prosecutions (DPP) has declined to
prosecute. To determine whether H, A's brother, has locus standi (the legal
standing or ability to bring a lawsuit) to proceed with a private prosecution against
C, several key points need consideration:
1. Definition of Aggrieved Party: The CPA allows a private prosecution to be
instituted by an "aggrieved" person. This typically refers to someone who has
suffered direct harm or damage as a result of the alleged crime.
2. Relationship with the Victim: H is A's brother, and if A is the victim of the
alleged crime committed by C, H may be considered an aggrieved person.
However, the CPA does not explicitly extend the right to prosecute to family
members unless they can establish a direct interest or harm resulting from the
alleged offence.
3. Nature of the Offence: The specific nature of the alleged offence against A is
also relevant. If the offence is of such nature that it directly affects H's rights or
interests (for instance, if it relates to H's own familial rights or duties), this may
bolster his argument for standing.
4. Formalities and Requirements: If H wishes to proceed with a private
prosecution, he must comply with specific procedural requirements set out in the
CPA, including obtaining the necessary consent from the DPP if required and
ensuring that the private prosecution is conducted in a competent court. In
conclusion, while H may have a basis for proceeding with a private prosecution
due to his familial relationship with A, his locus standi ultimately hinges on
whether he can demonstrate that he is an "aggrieved" person as defined by the
CPA. If he cannot demonstrate a direct interest or harm resulting from the alleged
offence against A, his ability to proceed with a private prosecution may be
, contested. Legal advice may be needed for H to explore his options and prepare
for any challenges to his standing in court.
1.3. In South Africa, the Constitution (specifically section 35(1)(d)(i)) and the Criminal
Procedure Act (CPA) govern the rights of arrested persons. Section 35(1)(d)(i) of the
Constitution stipulates that everyone who is arrested must be brought before a court
as soon as reasonably possible, but not later than 48 hours after the arrest. Similarly,
section 50 of the CPA reinforces this requirement, stating that an arrested person
must be brought before a court within this 48-hour timeframe unless there are
exceptional circumstances justifying a delay. In the scenario described, C was
arrested on Tuesday at around 11h00. The 48-hour period would end on Thursday at
around 11h00. Sergeant Nosey Kekana's decision to bring C to court on Thursday at
15h00 exceeds the stipulated 48 hours, as it takes C to court 4 hours after the limit.
Sergeant Kekana did not act within the legal requirements mandated by the
Constitution and CPA, as C’s appearance in court was delayed beyond the 48-hour
time frame. If C was not brought to court within this timeframe without valid
justification or exceptional circumstances, it could potentially violate his constitutional
rights, and any evidence obtained thereafter might be deemed inadmissible in court.
Thus, the action taken by Sergeant Kekana was not in compliance with the law.
1.4. In South African law, the principle of territoriality applies, meaning that South
African courts generally only have jurisdiction over offences committed within its
territory. Given that the alleged robbery occurred in Botswana, the South African
courts would typically lack jurisdiction to try the charges related to those offences, as
they were not committed on South African soil. Extradition is the process through
which one state surrenders a suspected or convicted criminal to another state for
trial or punishment. In this scenario, if C is being sought by Botswana for the alleged
robbery of its bank, the appropriate legal avenue would be to pursue extradition from
South Africa to Botswana. However, the reluctance of the prosecutor, P, to extradite
C complicates the matter. Ultimately, if the offences were solely committed in
Botswana, South Africa would not have the jurisdiction to try these charges. The
rightful course for prosecuting the alleged robbery remains with Botswana, assuming
that the legal requirements and processes for extradition are satisfied. Thus, the
charges should be tried in Botswana, not in South Africa.
1.5. Holding Over of Proceedings: Adjournments or Postponements?
The holding over of proceedings in the case of C constitutes adjournments rather
than postponements.
Reasoning:
Adjournments refer to the temporary suspension of proceedings to a later time or
date within the same hearing or trial. This allows for a break or for other matters to
be addressed before continuing.
Postponements, on the other hand, involve rescheduling the entire hearing or trial
to a later date due to various reasons such as unavailability of parties or witnesses.
In the given scenario, the repeated holding over of the proceedings for further
investigations indicates a temporary suspension of the proceedings to allow for
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