,SPR 400 (2020) Marissa Badenhorst
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,SPR 400 (2020) Marissa Badenhorst
Contents
Overview of basic concepts
Overview of the trial phase
Study Unit 3: Pleas
Study Unit 4: Plea of Guilty
Study Unit 5: Plea of Not Guilty
Study Unit 6: Trial and Verdict
Study Unit 7: The Sentence
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OVERVIEW OF BASIC CONCEPTS
→ The trial consists of two stages:
① Trial on the merits (the question of guilt or innocence)
② Trial on sentence (the question of an appropriate punishment following a conviction)
→ Trial on merit
o Plea
▪ After the prosecutor has put the contents of the charge sheet to the accused,
he/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 he/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
• 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 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 (private 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 the plea, however he/she is not bound to do so
• The aim of such an explanation is to identify the issues in dispute
• This means that the accused or his/her legal representative will show
which elements of the offence are admitted and which are disputed
• Following the example above: 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 he/she was not at the scene of the crime at all
(alibi defence)
o State case
▪ Next, the State will try to prove beyond reasonable doubt that the accused is
guilty as charged
▪ This will generally take the form of calling witnesses
▪ A witness who saw the offence committed is an eye-witness
▪ An expert may also give evidence, for example about fingerprints found at the
scene or about the possibility that a bullet was fired from a specific weapon
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o Defence case
▪ The accused usually answers the state’s case by personally giving evidence
▪ He/she tries to convince the court that there is a reasonably possibility that his/her
version is true
• If the court agrees, he/she will be found not guilty
▪ Other people may also give evidence to prove his/her innocence
• The accused can, for instance, allege that he/she was not on the scene of
the crime at all
• To prove (corroborate) her alibi, a person who was with the accused at a
different place when the crime was committed can testify
• After being sworn in, the accused and her witnesses testify
• The public prosecutor will then test the evidence by cross-examination
• An opportunity for re-examination is given
• The accused gives evidence first, followed by other possible witnesses
• Finally, the accused (or his/her legal representative) closes the defence
case
▪ There is no duty on the accused to give evidence after the closing of the state’s
case
• If he/she is of the opinion that the state has not proved her guilt at all, she
can apply for discharge (acquittal) after the state has presented its case
• If such an application is granted, the accused is discharged and found not
guilty without having to put her own case
• She can never be charged on the same facts again
• The criterion the court uses is whether a reasonable person could possibly
convict the accused on the evidence before the court
▪ The defence can also decide to close its case without leading evidence
• This may occur when an application for discharge fails because the test for
a discharge and that for a conviction are different
• Although the court might have turned down the application for discharge
because the evidence was sufficient for a reasonable person possibly to
convict the accused, guilt must be proved beyond reasonable doubt for a
conviction in a criminal case
o Arguments
▪ After both sides have completed their cases on the merits, the legal
representatives are given an opportunity to address the court
▪ An unrepresented accused is also given such an opportunity
▪ Argument addresses the facts and the law applicable to the case
▪ The State will argue the guilt of the accused, the defence his/her innocence
o Finding
▪ After considering the arguments, the presiding officer makes a finding
▪ To a great extent this is a choice between the two sets of arguments presented in
court
▪ The finding is based on the facts (for example whether the accused was indeed at
the scene of the crime) and the applicable law (for example, whether the
accused acted negligently or with intention)
▪ The court hands down a finding of guilty or not guilty
• A competent verdict is also possible for example, if a person is accused
of murder, but only negligence is proved, he/she can be found guilty of
culpable homicide although he/she was not charged with that crime
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• A conviction of culpable homicide is thus a competent verdict on a
charge of murder
▪ The judge or magistrate gives reasons for a decision
• Findings of fact are made
• The applicable legal position is sketched and the facts are applied to the
law
▪ A finding of not guilty leads to a discharge and the accused is free to go
▪ He/she can never be charged on the same facts before a criminal court again
→ Trial on sentence
o After conviction the court must decide on an appropriate sentence
o The trial on sentence proceeds as follows:
▪ The previous convictions (if any) of the accused are proved
▪ The defence highlights the mitigating factors
• The legal representatives can argue on the facts that are already before
the court
▪ The accused can, however, elect to give evidence herself about her personal
circumstances, motive for the offence and possible remorse
▪ Other persons, such as family members, experts such as a psychologist,
psychiatrist or sociologist can also give evidence on the accused’s background
and personality
▪ Evidence is still subject to cross-examination
o The state then has the opportunity to bring aggravating factors to the court’s attention
▪ This can be done through argument or by means of evidence
o In its finding on an appropriate sentence, the court gives a ‘second’ judgment
▪ The court will usually give reasons why a specific form and term of sentence has
been imposed
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, SPR 400 (2020) Marissa Badenhorst
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 7 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
, SPR 400 (2020) Marissa Badenhorst
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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, SPR 400 (2020) Marissa Badenhorst
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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, SPR 400 (2020) Marissa Badenhorst
Note: I know that the work covered under Study Unit 3 dealing with Pleas in general has
been excluded from the scope for the exam, however I thought it best to include that Unit
once again since it dealt with other aspects to the plea such as plea bargaining and
special pleas, which might be relevant for the exam assignment. Should you wish to only
study what has been demarcated, please feel free to skip this portion and start studying
under the heading, ‘Study Unit 4’. Click *here* to skip to Study Unit 4.
Study Unit 3
PLEAS
Sources:
✓ PowerPoint Slides on ClickUp
✓ The Criminal Procedure Act 51 of 1977
✓ Joubert (ed) Criminal Procedure Handbook 13th ed 2020
The plea (ss 105-109)
• The plea tendered in response to a charge serves an important dual purpose in that it
determines, first, the ambit of the dispute between the accused and the prosecution
and, secondly, the procedure to be adopted
o Special procedures must also be followed where a plea of guilty forms part of
a so-called plea and sentence agreement as provided for in s 105A.
• In criminal matters it is only after the accused has pleaded to the charge, that the lis is
established between the accused and the prosecution
• The plea is the formal response to the charge. It follows that the charge should be
drawn up with great care
o There can be no verdict on the merits unless an accused has pleaded to the
charge
o A trial court’s failure to give a verdict in respect of a charge to which the
accused has pleaded would normally result in an acquittal on appeal
• Where a plea and sentence agreement as provided for in s 105A is followed, an
accused settles the lis between him and the prosecution once and for all
105 Accused to plead to charge
The charge shall be put to the accused by the prosecutor before the trial of the accused is commenced, and
the accused shall, subject to the provisions of sections 77, 85 and 105A, be required by the court forthwith
to plead thereto in accordance with section 106.
• The provisions of section 105 are peremptory
• At the commencement of the trial it ought to be explained, in brief and
understandable terms, to undefended accused what it entails to plead either guilty or
not guilty
o The presiding judicial officer should also explain to the undefended accused
the procedure to be followed upon his plea, for example, questioning in terms
of section 112 where a plea of guilty has been tendered.
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