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Overview of the trial phase
Bail
•When an arrested person is brought to court for the first time, the presiding officer has to decide whether to release him/her on bail
•If the victim of the crime is afraid of the accused being released on bail, he/she must give reasons to the prosecutor/investigating officer
•If the accused has been released on bail and contacts the victim in any way. he/she must inform the prosecutor or investigating officer
•During the bail hearing, the magistrate may want to hear evidence and the court must deicde on the bail
Pleading
•A trial starts with the prosecutor telling the accused what he/she is charged with. The accused then pleads to the charge.
This means they say if they are 'guilty' or 'not guilty'. If they say 'not guilty', then the case goes to trial.
1. The State's Case
•During the trial, the prosecutor calls the witness to give evidence. The prosecutor gives the witness guidance so that
he/she does not leave out anything important. A witness can be:
•the victim
•anyone else who knows what happened/knows something about the crime
•the police officer, forensic expert or other experts
2. Cross-examination
•After each witness has given evidence, the accused or their lawyer may ask the witness questions. This is to test whether
the witness' evidence is correct. It also gives the accused or their lawyer the chance of giving his/her version of the events
3. The Accused's case
•After the state's case, the accused or the lawyer can ask the court to discharge the accused. This happens if they feel that
the prosecutor did not prove the case against the accused
•The presiding officer decides whether to discharge the accused, or proceed with the case
•The lawyer presents evidence and calls witnesses, which may include the accused. The defence counsel will try to prove
his client's innocence by creating 'holdes' in the State's (prosecutor's) case. They want to prove that the State's allegations
are not or are insufficient for the court to convict the accused
•The prosecutor may now ask any of the defence witnesses questions. This includes the accused.
4. Closing Arguments
•In the closing argument, the prosecutor will summarise and argue the case. He/she gives reasons why the accused should
be found guilty. The accused or their lawyer is also given the same opportunity to persuade the court why the accused
shoudl not be found guilty
5. Judgment
•The court decides whether the accused is guilty
•if the accused is guilty, the prosecutor has proved their guilty beyond reasonable doubt
•if the accused is not found guilty, it is because the presiding officer has doubts. if there is doubt, the court has to acquit
the accused.
6. The sentencing stage
•When the accused has been found guilty, the presiding officer decides on a punishment
•Both the prosecutor and the defence may call witnesses at this stage
•The prosecutor may talk about how bad the crime was; how it affected the community and victim; and may 3 even call
witnesses
•The prosecutor may also ask that the complainant be compensated if he/she suffered any loss as a result of the crime. The
complainant must ask the prosecutor to apply for a compensation order before the accused is sentenced
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1. Accused brought before court
First appearance and bail application
Legal representation confirmed or appointed
Accused informed of charge
Accused informed of rights ito Constitution
Accused released on warning/bail/matter postponed for bail application
Bail proceedings – granted (then released) OR denied (then kept in custody until trial)
bail appeal if required
Matter placed on roll for investigation
Investigation finalised
Matter set down for hearing
Accused applies for further particulars
Accused receives further particulars
2. Trial commences
Traditional plea bargaining or statutory plea bargaining ito section 105A of the Criminal Procedure Act
if applicable
Accused pleads guilty Accused pleads not guilty
Section 112 of the Criminal Procedure Plea examination ito section 115 of the
Act is applicable Criminal Procedure Act or the accused
Judgment given by court puts the state to the proof of all the
Where after: elements
State proves previous convictions if Admission in terms of section 220 of the
applicable Criminal Procedure Act if applicable
Previous convictions Previous convictions State gives opening address
confirmed by denied by accused: State leads evidence; for each state
confused State proves witness:
by leading o Evidence-in-chief by state
evidence o Cross-examination by defence
judgment o Re-examination by state
statements handed in by consent; if not, o Questions by court
evidence needs to be led on content o Questions by defence and state
Evidence presented by No flowing from court’s questions
defence in mitigation of evidence All witnesses presented
sentence: presented State closes its case
evidence-in-chief Application No Accused
cross-examination by ito section application closes its
state 174 of the ito section case
re-examination by Criminal 174 of the
defence Procedure Criminal
questions by the court Act Procedure
questions by state and Act
defence to witness
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flowing from questions If a section 174 discharge is granted, case is
by court regarded as finalised.
(all witnesses presented obo
accused – same as above) If application ito section 174 is denied or the
Evidence presented by state in accused does not apply, the accused opens his
aggravation of sentence: or her case:
evidence-in-chief Only accused testifies; or
cross-examination by Accused testifies and calls witnesses to
defence testify; or
re-examination by state Accused calls witnesses but does not
examination by court testify; or
questions by defence Accused chooses to remain silent and
and state flowing from calls no witnesses (i.e. closes his/her
court’s questions case)
(all witnesses present obo the
state – same as above) Evidence is lead for each defence witness:
address by defence and state in Evidence-in-chief by defence
mitigation and aggravation of Cross-examination by state
sentence Re-examination by defence
judgment on sentence (sentencing)
Defence closes its case
State addresses the court (closing
address)
Defence addresses the court (closing
address)
Judgment
Guilty Not guilty
Same procedure as Matter finalised
in guilty plea follows
3. Application for leave to appeal
Leave to appeal denied Leave to appeal granted
Petition Appeal heard
Petition denied Petition granted Appeal unsuccessful Appeal
No appeal Appeal will be heard Application for Finalised successful
possible Appeal Appeal leave to appeal to
successful unsuccessful full bench or SCA (if
granted will be
heard as petition)
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Short summary/overview of concepts:
Diversion
There are certain procedures or methods ito which a criminal trial can be avoided,
whether partially or as a whole, temporarily or permanently this can be called diversion
of the criminal process.
Charge sheet/ Indictment
A charge sheet (or indictment in the High Court) sets out the particulars of the alleged
offence with which the accused is charged. It sets out the relevant conduct as well as
where and when it was committed.
Bail
The accused who receives a summons is informed in it when to appear in court. If he is
arrested he will appear in court within 48 hours. Usually the case will then be postponed to
a later date for trial. Must the accused be kept in custody until the date of the trial? The
answer is no. Section 35 of the Constitution clearly states that an accused must be
released if it is in the interest of justice to do so. an accused who is detained on a relatively
minor charge will sometimes be released with a warning. A youth can be released into the
care of her parents. Generally bail is granted. Bail is an amount of money paid to the
court. It is a means of ensuring that the accused will attend her trial. If the accused does
not appear on the trial date, the amount of money is forfeited to the state. If she does
appear, the amount will be reimbursed to her after the trial has run its course. The question
whether bail will be granted depends on the following factors:
- Will the accused attend her trial or will she possibly try to escape and flee? In this
regard a permanent abode, the severity of the offence, fixed employment and
family ties will be considered
- Will the accused possibly commit the offence again before the trial date?
- Will the accused possibly interfere with witnesses or obstruct the investigation?
If there is a strong likelihood of any of these possibilities occurring, bail will not be granted.
Plea
After the prosecutor has put the contents of the charge sheet to the accused, she must
plead. A plea is basically either an admission or a denial of the allegations in the charge
sheet. An admission is a plea of guilty, a denial is a plea of not guilty.
If the accused pleads guilty, she may be found guilty immediately. This is usually the case
in lesser offences, where the possible sentence is neither imprisonment without the option
of a fine, nor a large fine. If the offence is more serious, the court cannot accept the
accused’s plea offhand and the court must first ask questions to ascertain whether the
accused understands all the elements of the offence and really wants to plead guilty. This
is necessary because lay people often misunderstand the law. For example, on a charge
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of murder a woman may plead guilty because she had, in fact, killed her husband.
Questioning the woman could reveal that she had killed him because she was sexually
abused and assaulted. In these specific circumstances she will have a defence in the form
of provocation or self-defence. The court will then enter a plea of not guilty and the case
will proceed as if the accused had pleaded not guilty. After entering a plea of not guilty,
the accused is given an opportunity to give an explanation of plea. She is not bound to do
so. the aim of such an explanation is to identify the issue in dispute. This means that the
accused or her legal representative will show which elements of the offence are admitted
and which are disputed. For example, the accused may admit that she killed her husband
intentionally, but she can deny that she acted unlawfully, as she acted in self defence.
Sometimes all the elements are placed in dispute, for example if the accused alleges that
she was not at the scene of the crime at all (alibi defence).
Plea agreement
In order to address the problem of delays in the finalisation of criminal cases, an
amendment to the Criminal Procedure Act introduced the possibility of plea agreements.
In such an agreement, concluded between the accused and an authorised prosecutor,
the accused admits her guilt and a sentence is agreed upon. However, because the
accused must have legal representation, this possibility will have limited application. The
plea agreement must be in writing and must be reached before the accused pleads to
the charge. After being informed that there is a plea agreement, the presiding officer will
ask the accused to plead. The court then questions the accused to satisfy itself of the
accused’s guilty and to establish that the sentence is just. If the court is so satisfied, it
convicts and sentences the accused in accordance with the agreement. If the court does
not agree that the agreed sentence is just, it will indicate what other sentence it considers
to be just. The accused may accept or reject this sentence. If she rejects the proposed
sentence, the trial must start anew (de novo). The main advantage of reaching a plea
agreement is that it dispenses with the need for a lengthy trial involving the testimony of
witnesses and other evidence. In the plea agreement process, the merits and sentencing
phases are conflated into one.
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Subject 7
BAIL AND OTHER FORMS OF RELEASE
Sources:
Joubert (ed) Criminal Procedure Handbook 13th ed 2020 - Ch 10: The whole
chapter.
Bill of Rights: s 35 (1) (f)
Ch 9, CPA (s 58 – 71); child - chapter 4 CJA. S 58 CPA effect of bail to be read with
s 25 CJA; s 59 CPA read with s 25(1) CJA (see also s 21(2)(a)); s 59A CPA read with s
21(2)(b) & 25(1) CJA. S 60 CPA to be read with s 25 CJA. S 71 CPA repealed by
CJA, s 27 CJA applies. S 72 CPA subject to CJA. Child- s 22 and 24 CJA applies.
“Step-By-Step Bail Applications” Riaan du Plessis, De Rebus, Jan 2000 p 30
S v Dlamini; S v Dladla & Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC)
(Constitutional challenges - see De Rebus Aug 1999 p 59 for summary of case)
Veenendal v Minister of Justice 1993 (1) SACR 154 (T) – court should not be
influenced by accused’s hunger strike; court has inherent authority to grant bail in
absence of specific provisions (extradition order)
S v Acheson 1991 (2) SACR 805 (Nm HC) – bail not punitive in nature
S v Hitschman 2007(2) SACR 110 ZHC – when is a change of circumstances
warranting bail relevant: passage of some considerable time + no progress in
investigation
S v Mabena 2007 (1) SACR 482 (SCA) – s 60 (11)(a) application – judicial inquiry +
onus on accused – state appeals against granting of bail – court hostile towards
state – no opportunity to prepare for s 60(11)(a) offence – appeal upheld -warrant
of arrest issued
S v Viljoen 2002 (2) SACR 550 (SCA) – if accused does not present prima facie case,
state does not have to present evidence to rebut
K v S [2003] 1 All SA 551 (SCA) – s 60(11)(b) – factors to be considered - strength of
state case – lack of detail of indecent assault– not possible to express a prima facie
view on strength or weakness; schedule 5 case vs improper conduct (grooming
activities with consent!); thus flimsy case + no well-grounded reasons to believe
that accused will influence witnesses, evade trial and diabetes condition = in
interest of justice to be released on bail
S v Scott-Crossley 2007 (2) SACR 470 (SCA) – no lighter test for convicted persons;
onus on appellant to persuade court of ‘exceptional circumstances’ which in the
interest of justice permit his release; only affidavits: SCA granted leave to appeal
against conviction + reasonable prospect of success; however all relevant factors
must be considered individually and cumulatively – bail hearing no dress-rehearsal
for appeal; on appellant’s own version he is an accessory after the fact (by
throwing deceased’s body into lion’s den to conceal evidence) – thus 5yrs
sentence likely – thus avoiding custodial sentence not likely ( has served 2 yrs);
personal circumstance commonplace; bail appeal dismissed – thus bail refused
S v Theko 2010 (2) SACR 339 (GNP)- if court proceeding under s 67A CPA, summary
enquiry not possible.
S v Mathebula 2010 (1) SACR 55 (SCA)- exceptional circumstances as
contemplated in s 60(11)(a) CPA, adequacy of proof
PLEASE NOTE: The explanatory memorandums as provided for by Prof De Villiers have also been
incorporated into this section and the portions of the work he advised would not be assessed
were not included in this summary.
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INTRODUCTION
Section 58 of the CPA provides that, when bail is granted
an accused who is in custody shall be released from custody
upon payment of, or the furnishing of a guarantee to pay,
the sum of money determined for his or her bail
o The accused must then, also ito section 58 of the
CPA, appear at the place and on the date and at
the time appointed for his trial, or to which the
proceedings relating to the offence iro which the
accused is released on bail are adjourned
o The accused’s release shall endure until a verdict is given by a court iro the
charge to which the offence in question relates
An accused’s failure to appear in court or to comply with any of the other conditions
of his bail may ultimately result in cancellation of bail, forfeiture of bail money to the
state and the re-arrest of the accused
o Failure to appear in court or to comply with a condition of bail is also a criminal
offence punishable by a fine or imprisonment not exceeding one year ito
section 67A of the CPA
58 Effect of bail
The effect of bail granted in terms of the succeeding provisions is that an accused who is in custody shall
be released from custody upon payment of, or the furnishing of a guarantee to pay, the sum of money
determined for his bail, and that he shall appear at the place and on the date and at the time appointed
for his trial or to which the proceedings relating to the offence in respect of which the accused is released
on bail are adjourned, and that the release shall, unless sooner terminated under the said provisions,
endure until a verdict is given by a court in respect of the charge to which the offence in question relates,
or, where sentence is not imposed forthwith after verdict and the court in question extends bail, until
sentence is imposed: Provided that where a court convicts an accused of an offence contemplated in
Schedule 5 or 6, the court shall, in considering the question whether the accused's bail should be extended,
apply the provisions of section 60 (11) (a) or (b), as the case may be, and the court shall take into account-
(a) the fact that the accused has been convicted of that offence; and
(b) the likely sentence which the court might impose.
THE CONSTITUTIONAL RIGHT TO BAIL
Purpose of bail is to
Right to be released Constitutional
strike a balance
from detention if the presumption of
between the interests of
interests of justice permit innocence (section
society and the liberty
(section 35(1)(f)) 35(3)(h))
of the accused
Where acccused will
Refusal to grant bail
not otherwise interfere
should be in the
with the administration Underlying current =
interests of society as
of justice, it would be best interests of justice
represented by the
contrary to the best
state
interests of justice
The need for a ‘mechanism’ such as bail must be understood in light of the following:
1) Section 35(1)(f) of the Constitution provides that everyone who is arrested for
allegedly committing an offence has the right to be released from detention if
the interests of justice permit, subject to reasonable conditions
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In the case of S v Dlamini; S v Dladla & Others; S v Joubert; S v
Schietekat 1999 (2) SACR 51 (CC) the following observation was
made: “Section 35(1)(f) postulates a judicial evaluation of different
factors that make up the criterion of interests of justice, and…the basic
objective traditionally ascribed to the institution of bail, namely to
maximise personal liberty, fits snugly into the normative system of the Bill
of Rights”
2) An accused is, in terms of section 35(3)(h) of the Constitution, in the absence of
a conviction by a court of law, also constitutionally presumed to be innocent
In the case of Acheson 1991 (2) SA 805 (Nm) the court said: “An
accused person cannot be kept in detention pending his trial as a form
of anticipatory punishment. The presumption of the law is that he is
innocent until his guilt has been established in Court. The Court will
therefore ordinarily grant bail to an accused person unless this is likely to
prejudice the ends of justice”
3) The purpose of bail is to strike a balance between the interests of society (the
accused should stand his trial and there should be no interference with the
administration of justice) and the liberty of an accused (who, pending the
outcome of his trial, is presumed to be innocent)
4) Refusal to grant bail shall be in the interests of justice society represented by
the state where one or more of the grounds referred to in section 60(4)(a)-(d)
are established
5) The whole issue turns on what is in the best interests of justice – it is not in the
best interests of justice to grant bail to an accused who will not stand his trial or
who might otherwise abuse his liberty pending verdict by intimidating State
witnesses
In S v Dlamini; S v Dladla & Others; S v Joubert; S v Schietekat 1999
(2) SACR 51 (CC) the Constitutional Court said: “Bail serves not only
the liberty interest of the accused, but the public interest by reducing
the high number of awaiting-trial prisoners clogging our already
overcrowded correctional system, and by reducing the number of
families deprived of a breadwinner”
6) It is also not in the best interests of justice to refuse bail to an accused who will
stand his trial and who will not otherwise interfere with the administration of
justice
7) Courts are also obliged to take into account section 39(2) of the Constitution in
any further development and interpretation of the rules and principles
governing bail, i.e. the court must promote the spirit, purport and objects of the
Constitution
Wrt “the interests of justice” qualifies the right to obtain bail by making the right to bail
dependent on whether “the interests of justice permit”. A constitutional standard is therefore
imposed on the ground under which bail is granted or denied and denotes a broad value
judgment of what is just and fair to all parties concerned and includes the interests of society
in bail being denied and the interest of the applicant for bail
∴ it includes all the reasons and factors what would indicate that bail should not be
granted, and all factors which would indicate that bail should be granted
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