QUESTION 1: Compliance with the 48-Hour Rule
The 48‑hour rule is enshrined in section 35(1)(d) of the Constitution and section 50(1)(c)
and (d) of the CPA. Section 50(1)(c) requires that an arrested person be brought before
a lower court as soon as reasonably possible, but not later than 48 hours after arrest. If
the 48‑hour period expires outside ordinary court hours or on a non‑court day, the
accused must be brought before court not later than the end of the first court day
thereafter (s 50(1)(d)(i), CPA). “Ordinary court hours” are defined as 09h00 to 16h00 (s
50(2)(b), CPA; CPR3701 Study Guide, p. 59).
A was arrested on Monday at 10h00. The 48‑hour period expired on Wednesday at
10h00. Wednesday is a court day and 10h00 falls within ordinary court hours. A was
only brought to court on Wednesday at 14h00 – four hours after the expiry of the
48‑hour period but still during court hours. The fact that the police searched for A
through three provinces before the arrest does not affect the calculation; the 48‑hour
period runs from the moment of arrest (s 50(1)(c); Joubert Criminal Procedure
Handbook 13th ed, ch 7, para 5.5). No exception under section 50(1)(d)(ii) (physical
illness) applies.
The 48‑hour rule was not complied with. A should have been brought before court by no
later than Wednesday at 10h00. His appearance at 14h00 violates s 35(1)(d) of the
Constitution and s 50(1)(c) of the CPA.
, QUESTION 2: Jurisdiction over the Case against A
A is charged with rape (s 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007) and murder (common law).
District courts have no jurisdiction to try murder or rape, they may try all offences
except treason, murder, rape and compelled rape (Joubert, ch 2, para 4.1.2; Study
Guide, p. 39).
Regional courts may try all offences except treason, they therefore have jurisdiction
to try both murder and rape (Joubert, ch 2, para 4.1.3).
High Courts have original jurisdiction over all offences, including murder and rape
(Joubert, ch 2, para 4.1.1).
Both the regional court and the High Court enjoy jurisdiction. The decision as to
which court will prosecute lies with the Director of Public Prosecutions (DPP) in the
exercise of his or her discretion as dominus litis (Joubert, ch 3, para 4.13).
The case against A may be tried in either the regional court or the High Court, as
both have jurisdiction over rape and murder.
The 48‑hour rule is enshrined in section 35(1)(d) of the Constitution and section 50(1)(c)
and (d) of the CPA. Section 50(1)(c) requires that an arrested person be brought before
a lower court as soon as reasonably possible, but not later than 48 hours after arrest. If
the 48‑hour period expires outside ordinary court hours or on a non‑court day, the
accused must be brought before court not later than the end of the first court day
thereafter (s 50(1)(d)(i), CPA). “Ordinary court hours” are defined as 09h00 to 16h00 (s
50(2)(b), CPA; CPR3701 Study Guide, p. 59).
A was arrested on Monday at 10h00. The 48‑hour period expired on Wednesday at
10h00. Wednesday is a court day and 10h00 falls within ordinary court hours. A was
only brought to court on Wednesday at 14h00 – four hours after the expiry of the
48‑hour period but still during court hours. The fact that the police searched for A
through three provinces before the arrest does not affect the calculation; the 48‑hour
period runs from the moment of arrest (s 50(1)(c); Joubert Criminal Procedure
Handbook 13th ed, ch 7, para 5.5). No exception under section 50(1)(d)(ii) (physical
illness) applies.
The 48‑hour rule was not complied with. A should have been brought before court by no
later than Wednesday at 10h00. His appearance at 14h00 violates s 35(1)(d) of the
Constitution and s 50(1)(c) of the CPA.
, QUESTION 2: Jurisdiction over the Case against A
A is charged with rape (s 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007) and murder (common law).
District courts have no jurisdiction to try murder or rape, they may try all offences
except treason, murder, rape and compelled rape (Joubert, ch 2, para 4.1.2; Study
Guide, p. 39).
Regional courts may try all offences except treason, they therefore have jurisdiction
to try both murder and rape (Joubert, ch 2, para 4.1.3).
High Courts have original jurisdiction over all offences, including murder and rape
(Joubert, ch 2, para 4.1.1).
Both the regional court and the High Court enjoy jurisdiction. The decision as to
which court will prosecute lies with the Director of Public Prosecutions (DPP) in the
exercise of his or her discretion as dominus litis (Joubert, ch 3, para 4.13).
The case against A may be tried in either the regional court or the High Court, as
both have jurisdiction over rape and murder.
