NICOLA IRVING (2020)
SPR 400:
CRIMINAL PROCEDURE
(EXAM)
Nicola Irving
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NICOLA IRVING©
SPR 400
_______________________
DISCLAIMER:
Please take note of the fact that these notes may not be comprehensive of the
material required to be covered for the module and contained in the prescribed
syllabus as reflected in the study guide. There may be errors; omissions or
shortcomings, accordingly, use these notes at your own discretion.
ACKNOWLEDGEMENT OF SOURCES:
These notes were composed based on:
• Professor WP de Villiers and Dr Llewellyn Curlewis:
o Lecturers in the Department of Procedural Law, University of
Pretoria: SPR 400 (Criminal procedure law) 2020.
o Slides, class notes and tutorials.
• The Criminal Procedure 400 (SPR 400) Study Guide (2020) University
of Pretoria.
• Kemp, Swanepoel, Terblanche, Van der Merwe, Ally & Mokoena
Criminal Procedure Handbook (2020) 13th ed JUTA.
PLEASE NOTE:
These notes shall not be shared without the express consent of the author
thereof.
• Exam Scope:
o Study Unit 4: Plea of guilty
o Study Unit 5: Plea of not guilty
o Study Unit 6: Trial and verdict
o Study Unit 7: The sentence
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Table of Contents
Terminology: ....................................................................................................................................... 5
S 35: Arrested, detained and accused persons ......................................................................... 6
Scheduled offences: ......................................................................................................................... 7
Study Unit 4: Plea of guilty ........................................................................................................ 13
Distinguish between the application of S 112(1)(a) and S 112(1)(b) of the CPA: .... 13
Draft a client’s plea of guilty in terms of S 112(2) of the CPA:..................................... 15
Know the court’s role in questioning of the accused in terms of S 112(1)(b) of the
CPA (keeping the right to a fair trial in mind): .................................................................. 31
Know when the court must implement the provisions of S 113 of the CPA namely,
to change a plea of guilty to one of not guilty: ................................................................ 35
Know when a case may be referred to the regional court after a plea of guilty: .... 37
Self-evaluation questions: ..................................................................................................... 39
Study Unit 5: Plea of not guilty ................................................................................................. 39
Know the plea explanation state in terms of S 115: ....................................................... 39
Know the value and kinds of admissions under S 220:................................................. 42
Draft a statement containing admissions in terms of S 220: ....................................... 44
Draft a plea explanation in terms of S 115: ....................................................................... 45
Self-evaluation questions: ..................................................................................................... 51
Study Unit 6: Trial and verdict .................................................................................................. 52
General principles: .................................................................................................................. 52
Know what an opening address is: ..................................................................................... 54
Know how to conduct a case up to the end of the State’s case: ................................ 55
Know the options available to the accused at the end of the State’s case: ............. 56
Know how to conduct the defence’s case: ....................................................................... 58
Know the role of the court with regards to the calling of witnesses: ........................ 58
Know when the state may be entitled to re-open its case: ........................................... 59
Know the purpose of the closing addresses:................................................................... 60
Know when a Magistrate may amend their verdict: ........................................................ 60
Know the conviction of the accused on a lesser charge (competent verdicts): ..... 60
Self-evaluation questions: ..................................................................................................... 64
Study Unit 7: The sentence ....................................................................................................... 64
The pre-sentence investigation procedure: ...................................................................... 72
The role of previous convictions in the sentencing decision: ..................................... 75
The role of pre-sentence reports and behavioural science experts: ......................... 75
A victim impact statement and its significance: .............................................................. 76
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The necessity of giving evidence under oath and whether address from the bar be
sufficient: ................................................................................................................................... 76
The influence of the Constitution on sentencing: ........................................................... 76
The sentencing process and decision may be influenced by various principles: . 79
The forms of punishment: ..................................................................................................... 80
Address before sentence:.................................................................................................... 104
Parole: ....................................................................................................................................... 104
Self-evaluation questions: ................................................................................................... 104
Past paper question: ............................................................................................................. 105
Schedule I: Criminal Procedure Act .................................................................................. 106
Schedule 2 (Part II): Criminal Procedure Act .................................................................. 107
Schedule 2 (Part III): Criminal Procedure Act ................................................................. 108
Schedule 5: Criminal Procedure Act ................................................................................. 109
Schedule 6: Criminal Procedure Act ................................................................................. 110
Schedule 7: Criminal Procedure Act ................................................................................. 111
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Terminology:
1. ‘Accused’ refers to a person who has been charged.
2. ‘Appeal’ refers to the process of requesting a higher court to reverse the
decision of a lower court i.e. Considering the merits of the case.
3. ‘Child’ means any person under age of 18 years and, in certain circumstances,
means a person who is 18 years or older but under the age of 21 years whose
matter is dealt with in terms of S 4(2) of the Child Justice Act.
4. ‘Child justice court’ means any court provided for in the Criminal Procedure
Act, dealing with the bail application, plea, trial or sentencing of a child. Note
that child justice courts are not separate criminal trial courts but function within
the ordinary criminal courts structure.
5. ‘Competent verdicts’ (also known as ‘lesser included offences’) refer to the
crimes an accused person may be convicted of if the crime charged is not
proven i.e. Culpable homicide is a competent verdict on a charge of murder.
6. ‘Conviction’ is the act or process of finding a person guilty of a crime.
7. ‘Counts’ refer to multiple charges i.e. The number of offences charged in
connection to a criminal case.
8. ‘Diversion’ refers to the procedures or methods in terms of which a criminal
trial can be avoided, whether partially or as a whole, temporarily or
permanently.
9. ‘Dominus litis’ refers to the master or controller of the litigation and in criminal
trials, the State is dominus litis.
10. ‘Indictment’ refers to a formal charge or accusation of a serious crime in the
superior courts, which indicates that the Director of Public Prosecutions is
prosecuting on behalf of the State.
11. ‘Lower court’ means any court established under the provisions of the
Magistrates’ Courts Act 32 of 1944.
12. ‘Offence’ is the term used to describe the action which caused the offender to
be tried and sentenced in court.
13. ‘Offender’ refers to the person who is accused or convicted or having
committed the crime.
14. ‘Peace officer’ includes a Magistrate, justice of the peace, police official,
member of correctional services and certain persons declared by the Minister
of Justice to be peace officers for specified purposes.
15. ‘Punishment’ refers to something which is unpleasant to experience and is
limited to measures imposed by a court after conviction.
16. ‘Review’ refers to the process whereby the lawfulness or regularity of the
proceedings is challenged i.e. Considering the procedure followed by the court.
17. ‘Sentence’ refers to the punishment meted out by a court to a person convicted
of a crime i.e. Any measure applied by a court to the person convicted of a
crime and which finalises the case.
18. ‘Sentencing’ refers to the imposition of a sentence by the court on a particular
offender.
19. ‘Suspect’ refers to a person who has not yet been charged i.e. An arrested
person who is being taken to the police station.
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S 35: Arrested, detained and accused persons
1. Everyone who is arrested for allegedly committing an offence has the right
a. To remain silent
b. To be informed promptly
i. Of the right to remain silent; and
ii. Of the consequences of not remaining silent;
c. Not to be compelled to make any confession or admission that could be
used in evidence against that person;
d. To be brought before a court as soon as reasonably possible, but not
later than
i. 48 hours after the arrest; or
ii. The end of the first court day after the expiry of the 48 hours, if
the 48 hours expire outside ordinary court hours or on a day which
is not an ordinary court day;
e. At the first court appearance after being arrested, to be charged or to be
informed of the reason for the detention to continue, or to be released;
and
f. To be released from detention if the interests of justice permit, subject to
reasonable conditions.
2. Everyone who is detained, including every sentenced prisoner, has the right
a. To be informed promptly of the reason for being detained;
b. To choose, and to consult with, a legal practitioner, and to be informed
of this right promptly;
c. To have a legal practitioner assigned to the detained person by the State
and at State expense, if substantial injustice would otherwise result, and
to be informed of this right promptly;
d. To challenge the lawfulness of the detention in person before a court
and, if the detention is unlawful, to be released;
e. To conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at State expense, of
adequate accommodation, nutrition, reading material and medical
treatment; and
f. To communicate with, and be visited by, that person’s
i. Spouse or partner;
ii. Next of kin;
iii. Chosen religious counsellor; and
iv. Chosen medical practitioner.
3. Every accused person has the right to a fair trial, which includes the right
a. To be informed of the charge with sufficient detail to answer it;
b. To have adequate time and facilities to prepare a defence;
c. To a public trial before an ordinary court;
d. To have their trial begin and conclude without unreasonable delay;
e. To be present when being tried;
f. To choose, and be represented by, a legal practitioner, and to be
informed of this right promptly;
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g. To have a legal practitioner assigned to the accused person by the State
and at State expense, if substantial injustice would otherwise result, and
to be informed of this right promptly;
h. To be presumed innocent, to remain silent, and not to testify during the
proceedings;
i. To adduce and challenge evidence;
j. Not to be compelled to give self-incriminating evidence;
k. To be tried in a language that the accused person understands or, if that
is not practicable, to have the proceedings interpreted in that language;
l. Not to be convicted for an act or omission that was not an offence under
either national or international law at the time it was committed or
omitted;
m. Not to be tried for an offence in respect of an act or omission for which
that person has previously been either acquitted or convicted;
n. To the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence has been changed between the
time that the offence was committed and the time of sentencing; and
o. Of appeal to, or review by, a higher court.
4. Whenever this section requires information to be given to a person, that
information must be given in a language that the person understands.
5. Evidence obtained in a manner that violates any right in the Bill of Rights must
be excluded if the admission of that evidence would render the trial unfair or
otherwise be detrimental to the administration of justice.
Scheduled offences:
• Note: These are some, but not all, of the scheduled offences in the listed Acts.
o For the full list of crimes, please see the relevant legislation.
Criminal Procedure Act 51 of 1977
Schedule 1 Schedule 2 Schedule 3
Treason Any offence under a law Any contravention of a by-
relating to the illicit law or regulation made by or
possession, conveyance or for any council, board or
supply of dependence- committee established in
producing drugs or terms of any law for the
intoxicating liquor management of the affairs
of any division, city, town,
borough, village or other
similar community
Sedition Any offence relating to the Any offence committed by:
illicit dealing in or possession • Driving a vehicle at a
of precious metals or speed exceeding a
precious stones prescribed limit;
• Driving a vehicle which
does not bear
prescribed lights, or any
prescribed means of
identification;
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• Leaving or stopping a
vehicle at a place where
it may not be left or
stopped, or leaving a
vehicle in a condition in
which it may not be left;
• Driving a vehicle at a
place where and at a
time when it may not be
driven;
• Driving a vehicle which
is defective or any part
whereof is not properly
adjusted, or causing any
undue noise by means
of a motor vehicle;
• Owning or driving a
vehicle for which no
valid license is held; or
• Driving a motor vehicle
without holding a licence
to drive it.
Public violence Breaking or entering any
premises, with intent to
commit an offence
Murder Theft
Culpable homicide Any offence relating to the
coinage
Rape or compelled
rape
Sexual assault,
compelled sexual
assault or compelled
self-sexual assault
Any sexual offence
against a child or a
person who is
mentally disabled
Trafficking in persons
for sexual purposes
Bestiality
Robbery
Kidnapping
Childstealing
Assault, when a
dangerous wound is
inflicted
Malicious injury to
property
Child Justice Act 75 of 2008
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Schedule 1 Schedule 2 Schedule 3
Contempt of court Robbery, other than robbery Treason
with aggravating
circumstances
Blasphemy Assault, involving the Murder
infliction of grievous bodily
harm
Theft where the Public violence Extortion
amount involved does
not exceed R2500
Malicious injury to Culpable homicide Kidnapping
property, where the
amount involved does
not exceed R1500
Common assault Arson Rape or compelled rape
where grievous bodily
harm has not been
inflicted
Trespass Housebreaking Robbery where there are
aggravating circumstances;
or involving the taking of a
motor vehicle.
Perjury Administering poisonous or Sexual exploitation of
noxious substances children, sexual grooming
of children and using
children for or benefiting
from child pornography
Public indecency Crimen expositionis infantis Exposure or display of or
causing exposure or
display of child
pornography or
pornography related to
children
Bestiality Abduction Compelling or causing
children to witness sexual
offences, sexual acts or
self-masturbation
Acts of consensual Sexual assault, compelled Trafficking of persons for
sexual penetration sexual assault or compelled sexual purposes
with certain children self-sexual assault
(statutory rape) and
acts of consensual
sexual violation with
certain children
(statutory sexual
assault)
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Figure 1: Accused brought before a court
First appearance and bail applicationv
Accused released on
Legal representation Accused informed of charge Accused informed of warning/bail/matter
confirmed or appointed against them constitutional rights postponed for bail
application
Bail proceedings
If bail is granted, the accused is If bail is denied, the accused is If bail is denied, the accused is afforded
released detained in custody until trial a bail appeal
Matter placed on the roll for investigation
Investigation finalised
Matter set down for hearing
Accused applies for further particulars
Accused receives further particulars
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