CPR3701 Previous Assignment Q and A
.
Previous Assignment Q & A compilation
CPR3701
7 ASSIGNMENT 03
and no individual or general answers will be provided to students.
1. A is arrested on a charge of theft involving funds in the company that she
works for, namely, Digital Incryption. The mat...
,Previous Assignment Q & A 2022-2017 compilation
CPR3701
7 ASSIGNMENT 03
and no individual or general answers will be provided to students.
1. A is arrested on a charge of theft involving funds in the company that she
works for, namely, Digital Incryption. The matter is brought to court
whereupon the prosecutor, P, decides to ‘drop’ the charges against A.
(a) Briefly discuss the process, circumstances and the consequences of
the withdrawal of charges against A. (5)
The prosecuting authority has the authority to withdraw a charge before the accused
has pleaded to such a charge – s 6(a) of CPA. The accused is in these
circumstances not entitled to a verdict of acquittal (1). He may be prosecuted again
on the same or related charges, for example, where new evidence is found (1). A
prosecutor may withdraw a charge without the consent of his DPP. The reason for
this is that a DPP, if dissatisfied with the prosecutor’s withdrawal of the charge, may
charge the accused afresh (1). Before an accused pleads, the prosecution can also
withdraw a summons and issue another – Wolman v Springs Town Council 1941
TPD 104 (1)
(b) Briefly discuss the process, circumstances and the consequences of
the stopping of prosecution against A. (5)
A DPP may at any time after an accused has pleaded, but before conviction, stop the
prosecution in respect of that charge (1). If this is done, the accused is entitled to an
acquittal – s 6(b) of CPA. This means that in any subsequent prosecution in respect
of the same facts, the accused can successfully rely on a plea of previous acquittal
(autrefois acquit) (1). However, a public prosecutor may not stop a prosecution
without the consent of the DPP or any person authorized thereto by such a DPP – s
6(b); Van Wyk 1981 (3) SA 228 (C) (1). The mere fact that a prosecutor indicates to
the court that on the evidence as presented in court he is unable to support a
conviction, does not amount to a stopping of the prosecution – Bopape 1966 (1) SA
145 (C) (1).
2. A and B are involved in bruising physical brawl. B subsequently succumbs to the
injuries sustained during the fight and dies in hospital. The DPP is not convinced
that the prosecution has a ‘winnable’ case, and decides to withdraw the case. B’s
son, C is not happy with the prosecutorial decision, and approaches you, for
advise.
(a) Advise C of the course of action which he may undertake, and his eligibility or
locus standi to do so. (4)
,If the NDPP decides not to proceed with the charges against X, which persons
(name least three) have locus standi to institute a private prosecution. (3)
1. Private person who prove substantial interest in outcome of issue arising out of an
injury he personally suffered in consequence to the offense.
2. Husband, if offense committed in respect of wife.
3. Wife, child, next of kin of deceased person.
4. Legal guardian, curator of minor or lunatic if offense committed against his ward.
Yes, Wife, child, next of kin of deceased person.
Hint: your answer should contain the applicable course of action to be followed after
the prosecutor’s decision, and the most appropriate option from those set out on p.
93 par. 5.3.2.
an individual may prosecute privately on the basis of a certificate nolle presequi.
The certificate nolle presequi
Lapses in 3 months
Signed by DPP
Declares that DPP : examined statement on which charge is based &
declines to prosecute at the instance of the state.
Security by PP
Deposit of R1500.00 with Magistrates Court.
Failure of PP to appear
Charged dismissed – accused may not be Privately charged again but State
may Prosecute.
If PP prevented beyond his control – deposit forfeited and case moved to
later date.
Cost of Successful PP
Paid by PP, court may rule for convicted to pay.
Cost of Unsuccessful PP
Court my order PP to pay whole/part of accused cost/expenses connected to
prosecution.
Intervention by State in PP
DPP my apply for proceedings to be stopped to prosecute in the instance of
the State.
, (b) The company for which for which B worked, BD Constructions, want to
pursue criminal action against A due to their ‘sense of profound loss’ at
the death of B. Advise accordingly. (4)
Hint: your answer should contain the applicable course of action to be followed after
the prosecutor’s decision, followed by the applicable principle in in this regard, in
respect of juristic persons as set out on p. 93 par. 5.3.2.
5.3.2 Locus standi of a private prosecutor
In any case in which a DPP has declined to prosecute for an alleged offence, the
following persons may, subject to certain other procedural requirements, either in
person or through a legal representative institute and conduct a prosecution in
respect of such offence in any court competent to try that offence:
There are two forms of private prosecutions, namely:
(i) by an individual on the basis of a nolle prosequi
(ii) under statutory right
Number (i) above is applicable here.
Any person upon whom the right to prosecute in respect of any offence is expressly
conferred by law may institute and conduct a prosecution in respect of such offence
in any court competent to try that offence section 8(i) of the Act.
Requirements
(i) A certificate nolle prosequi -.
(ii) Locus standi of a private prosecutor:
(a) Any private person who proves some substantial and peculiar interest in the issue
of a trial arising out of some injury which he/she individually suffered in consequence
of the commission of the said offence. The question here is basically whether it is
clear that a legal right of a person has been infringed by an offence. Y’s parents
surely qualify because they will be responsible for their minor son’s medical
expenses.
(b) The legal guardian or curator of a minor, if the offence was committed against
his/her ward. This is also the position in the question.
In Mullins v Pearlman it was decided that only persons who can prove that they have
suffered actual damage as a result of the commission of the alleged offence are
entitled to institute a private prosecution.
Security by the private prosecutor
An amount of R1 500 is to be deposited with the magistrate’s court in whose area of
jurisdiction the offence was committed, as security that the private prosecutor will
prosecute the charge to a conclusion without undue delay. The court may determine
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